US national guard COVID-19 testing in nursing home

Virginia National Guard soldiers and airmen collected samples for COVID-19 testing at a long-term care facility April 28.

Courtesy of Virginia Mercury

Members of Virginia’s General Assembly say there’s growing bipartisan frustration over the lack of public information about nursing homes with outbreaks of COVID-19.

The push for more transparency comes as the state continues to battle a growing number of outbreaks at long-term care facilities, which account for a significant portion of Virginia’s known coronavirus cases and more than half of the state’s — as of Tuesday — 713 deaths. 

As global mortality rates continue to disproportionately affect the elderly, more than a dozen states, including Tennessee and Washington, D.C., have released the names of long-term care facilities with COVID-19 outbreaks. But Gov. Ralph Northam and other administration officials have repeatedly refused to identify specific sites, saying that doing so would violate a section of Virginia code governing patient privacy.

Many legislators, though, say the administration is relying on an overly strict interpretation of state law that shrouds vital information from the public eye. With no statewide reporting requirement, individual facilities are given the choice of whether to publicly disclose outbreaks. In some cases, staff members have identified sites by name when owners and managers have failed to come forward. And with no clear guidelines, there’s no guarantee that facilities will voluntarily share the information, said Sen. David Suetterlein, R-Salem.

“The larger issue is that we don’t know what’s happening in every nursing home,” he said in a phone interview on Monday.

“That’s not the way any of us understand the law,” he added later. “I’d like [the administration] to come to the realization that this needs to be out there. I think the stakes are really high for a lot of people, and it’s important that families have this information to help their loved ones.”

In an email on Tuesday, Northam spokeswoman Alena Yarmosky pointed to multiple chapters of Title 32.1, a section of state code governing health care. The governor’s interpretation of the code is “based on guidance from the Virginia Commissioner of Health, in consultation with the Office of the Attorney General,” she wrote.

Charlotte Gomer, Attorney General Mark Herring’s press secretary, declined to elaborate on the guidance, writing Tuesday that the office “cannot discuss advice we may provide to a state agency because it is protected by attorney-client privilege.”

But Health Commissioner Dr. Norman Oliver has specifically cited section 32.1-41, which directs him to “preserve the anonymity of each patient and practitioner” unless the disclosure is “pertinent to an investigation, research or study.” Oliver previously told the Mercury that publicly disclosing the names of individual facilities with outbreaks wouldn’t advance efforts to track and contain the virus, and might unintentionally reveal patient-specific medical information.

Officials with the Virginia Department of Health have also cited section 32.1-38, which grants immunity to any person reporting authorized health data to the agency. The same chapter defines “person” as “an individual, corporation, partnership, association or any other legal entity” — including health care facilities, according to VDH.

Democratic Sen. Scott Surovell, an attorney from Alexandria, said there are some problems with the administration’s interpretation of the code. While health officials have emphasized that “person” should be interpreted to include individual companies and facilities, he pointed out that section 32.1-41 — the passage cited by Oliver — applies specifically to individual patients and practitioners. And there’s little chance that individual identities would be revealed by disclosing the names of facilities with outbreaks, he said.

“I don’t think 32.1-41 has anything to do with facility anonymity — it has to do with anonymity for purposes of research,” he said. The same section also specifically stipulates that the state’s health commissioner is allowed to reveal the identity of patients and practitioners for public health efforts. It’s the “person to whom such identities are divulged” that’s responsible for keeping them anonymous, Surovell added.

“It’s my perspective that what that statute basically says is that the people conducting the study have to preserve anonymity,” he continued. “It’s referencing the research part of it.”

Section 32.1-38 is another specific passage being broadly applied to the COVID-19 pandemic, according to Surovell. He suggested that the real intent is to grant civil or criminal immunity to anyone making a report to VDH, including voluntary reports for “special surveillance or other epidemiological studies,” according to the language of the code. 

“That basically says if you tell them, ‘We have people living in our facility who have COVID,’ you can’t be sued for that,” he added. 

But administration officials have been focusing closely on a sentence prohibiting the health commissioner or local health directors from publicly disclosing “the name of any person reported or the name of any person” making those reports, Surovell said. It makes sense in the broad context of the passage, which is meant to protect individuals and entities making required or voluntary disclosures. He said it doesn’t necessarily mean that VDH can’t share public health information that’s reported to the agency.

“I don’t think the fact of reporting that 20 people at X nursing home have COVID necessarily reveals who told the Department of Health that,” Surovell added. “It could have been a third-party doctor service, it could have been examiners, it could have been families, it could have been social workers. It could have been lots of people.”

It’s what Senate Minority Leader Tommy Norment, R-James City (also an attorney) called an “extensive approach” to state law, saying that the administration could take a narrower view of what the statutes intended.

“I understand not releasing an individual’s name, and I would never call for that,” he said in a phone interview on Tuesday.

“But frankly, families have a right to know if there is an issue that is percolating in a facility,” he added later. “And I don’t think it should have to come dribbling out because the media is drilling down on it.”

Sen. George Barker, D-Fairfax, a senior member of the Senate Health and Education Committee, said the interpretation was also inconsistent with other data made publicly available by the state. Since the early 1990s, facility-specific data has been available through the Virginia Health Information system, an independent agency whose reports on individual nursing homes include the percentage of residents who have gone to the emergency room, received antipsychotic medication, and other metrics.

VDH also keeps a directory of long-term care facilities with reports from past inspections, which redact the names of residents but frequently include specific medical information. 

“We need to reexamine how [the administration] is interpreting this,” added Del. Mark Sickles, D-Fairfax, chair of the House Health, Welfare and Institutions committee. He suggested that health officials could find a compromise approach, such as reporting the names of facilities once the number of infected residents rises above a certain threshold.

Yarmosky wrote that the administration is “working to provide as much information to Virginians as possible, given the constraints of state law.”

Suetterlein, though, argued that Northam could have called a special session earlier into the pandemic, allowing legislators to vote on language that would have clarified the statutes.

“And originally, when we were asking for jurisdictional information on outbreaks, VDH said that would violate privacy laws,” he added. Oliver has since announced that the officials will begin to release COVID-19 cases by zip code. Individual nursing homes have also been permitted to release information about infections to other long-term care facilities — overturning the department’s previous policy, which suggested that the exchange of information would violate patient privacy.

Joani Latimer, Virginia’s long-term care ombudsman, which advocates for older Virginians, said the Trump administration could be responsible for ending the state’s privacy policy. On April 19, the U.S. Centers for Medicare & Medicaid Services announced that long-term care facilities would be required to report COVID-19 cases directly to the Centers for Disease Control and Prevention. The policy was codified on April 20, according to CMS.

The CDC launched a reporting tool last week, and the information is scheduled to become public in the next few weeks. “CMS plans to release the data weekly and will include the nursing home names in that report,” the agency wrote in a statement to the Mercury.

“At this point, federal agencies are requiring the facilities to report,” Latimer said. “So, we hopefully will have some kind of resolution through that.”

Latimer said her office has received “a volume of calls from residents and the family members” of long term care facilities since the pandemic began.

“We don’t see that specifically as being a privacy violation,” Latimer said, referring to naming facilities with COVID-19 outbreaks. “This whole notion, I think, of a company or a corporation as a person with privacy rights is a bit baffling to families. Particularly if they feel like those privacy rights for that ‘individual’ are at odds with the privacy rights for the resident themselves — a person who is, by definition, at risk in that situation.”

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