As the El Paso City Council remains divided on whether to identify facilities where there have been COVID-19 outbreaks, state agencies in Texas and around the country are beginning to share the information regularly.
Opponents of releasing the names of facilities — including those of businesses — say doing so would violate privacy, further harm the economy and lead to lawsuits. Supporters of more transparency maintain the information will help the public make decisions about their health and where they feel it safe to go.
Nearly every state in the country is now releasing some level of facility identification regarding COVID-19 cases and outbreaks, be it correctional facilities, long-term care facilities, child-care settings or workplaces. Some identify all four categories.
Darker shading on the map indicates states that disclose more specific details about COVID-19 outbreaks. El Paso Matters identified four different population groups: seniors, children, inmates and workplaces. States got one point for each of the four population groups for which they offer disclosures. Hover your cursor over a state for more details on their disclosures. (Data visualization by Emma Baker)
Not all information sharing is equal, however.
An El Paso Matters analysis of states that are identifying facilities that have COVID-19 outbreaks and cases found variations on the type of information being disclosed to the public, with some states sharing significantly more data than others.
Information needs to have action plan
Dr. Ogechika Alozie, chief medical officer at Del Sol Medical Center and an infectious disease specialist, said ideally there would be a standard method of information sharing across the country.
“I think it’s unfortunate that we don’t, so our various locales are left to try to figure it out on their own the best that they can,” Alozie said.
Alozie said from a science and health standpoint, cluster information is important and he thinks the health department needs to track it. He said he is not certain that knowing a business had one positive case of COVID-19 is necessarily useful to the public.
Dr. Armando Meza, chief of infectious diseases at Texas Tech Physicians of El Paso, said disclosing information about clusters or outbreaks is only useful if there is an action plan tied to it.
“I think the challenge for every nursing home, or every school or every scenario where you have a large number of individuals, is not only that you have to have good mechanisms to test and identify the ones who are being infected and exposed, but the second piece — maybe more relevant — which is, what are you going to do with the information and how are you going to act in a way that you can control the spread?” Meza said.
Alozie said in an ideal situation, if a restaurant had 20 employees test positive, the health department would instruct the business to shut down and put a notice on the door advising the public that employees tested positive. That, or the business would self-disclose and voluntarily shut down to follow health department guidelines, he said.
“I don’t think there is a right or wrong per se. I think each individual community and legal entity has to figure out how they want to approach it,” Alozie said.
A matter of privacy, or policy
Joseph Larsen of the Houston law firm Gregor Wynne Arney is one of Texas’ most experienced attorneys in government transparency law. He said government entities have long argued that making public the names of facilities or institutions would be a privacy violation under the Health Insurance Portability and Accountability Act.
“A lot of institutions forever and ever and ever have tried to make this argument under HIPAA that they can’t release information about institutions,” Larsen said, adding that HIPAA does not prevent the release of the information for statistical purposes if released in a manner that doesn’t mention the identification of any person.
Larsen said states opting against extensive disclosure are making the wrong choice.
“The difference is ultimately which policy choices these states are making,” Larsen said. “A state by not being transparent, by not getting this information out — that’s a poor policy choice and it’s going to delay economic recovery and it’s going to put human life and health at risk.”
The state of Texas in July started providing self-reported COVID-19 data for nursing and assisted-living facilities, as well as state-supported living facilities and psychiatric hospitals. The move came after the Texas Attorney General’s Office rejected the Texas Health and Human Services Commission’s effort to keep the data secret.
The state has since also started providing self-reported COVID-19 cases in licensed child care centers, school-age programs, and before or after-school programs and registered child care homes.
Texas state agencies that oversee prisons and jails provide regular updates on COVID-19 data from individual facilities or counties.
Texas Department of State Health Services officials said there are no plans to list clusters or the number of cases associated with specific businesses on a statewide basis.
How other states are identifying COVID-19 workplace outbreaks
The El Paso Matters analysis found at least four states — Colorado, Oregon, New Mexico and Arkansas — that identify workplaces that have COVID-19 outbreaks and cases.
The Colorado Department of Public Health and Environment provides data for businesses and workplaces of all sizes with two or more cases within a two-week period.
Asked if the state was concerned with violating HIPAA privacy laws, Colorado State Joint Information Center officials said “outbreak data does not include any identifying individual health information, so we consider it public record. We also believe that providing outbreak information provides the public with important information.”
Only confirmed outbreaks are listed on the website. Outbreak data includes the county, type of facility, the number of staff who have tested positive, been hospitalized or who have died as a result of COVID-19. It also indicates whether there is an active or resolved outbreak investigation.
“Transparency is important to us, so we work to provide as much information about COVID-19 as possible,” officials said in an email statement to El Paso Matters.
Oregon provides information on outbreaks at businesses with five or more positive cases and for workplaces with at least 30 workers, according to the Oregon Health Authority’s weekly COVID-19 reports. The case counts include all persons linked to the outbreak, which may include household members and other close contacts.
The data includes active workplace outbreaks. Once outbreaks are resolved they are moved to a separate table of information, according to the reports.
Arkansas identifies occupational clusters with five or more active cases of COVID-19 in its reports, which include the name of the employer, city, county, number of active cases, number of closed cases and number of total cases.
The New Mexico Environment Department posts data that contains information about rapid responses in New Mexico workplaces. According to the information, the responses are conducted when one or more employees test positive for COVID-19.
The data includes the number of COVID-positive employees at the location when the rapid response was initiated, but does not include whether the cases have been resolved.
Impact to business owners
El Paso elected officials who have opposed releasing information to the public that identifies the names of workplaces with COVID-19 clusters have argued that doing so could further harm local businesses and violate privacy.
Some business owners in Colorado that have had resolved outbreaks and active outbreaks identified on the state’s public dashboard said they saw minimal impact, if any.
Abrusci’s Fire & Vine restaurant in Lakewood is currently listed as having an active outbreak on the state health department’s website.
Manager Marvin Williams said the outbreak status was triggered when two employees, in unrelated instances to each other, tested positive for COVID-19.
Williams said they reported it to the health department immediately and were instructed to close down to clean and disinfect the establishment. Other employees that were in close range to the infected individuals were also tested.
A third employee who had been on vacation tested positive prior to returning to work and is also counted on the state’s data for the outbreak, Williams said.
The restaurant remains on the active status for 30 days, he said.
Williams said there was not a negative impact on business from being placed on the list.
“If we happen to get a couple of cases and we go on there it’s not a big deal because we are doing the right thing to correct it, so disclosing it (by the state) for honest people is not a huge thing,” Williams said.
He said some patrons called when they saw there was an active outbreak, wanting to know what happened.
“The truth is they’re just scared and they just want to know that they are safe. You just have to communicate,” Williams said, adding the list has served to keep businesses in check. “So many more places are having outbreaks, so I think more people were really understanding.”
The Aguirre Law Group in Denver experienced an outbreak and was placed on the state’s list in June. The outbreak is now in a closed status.
Dario Aguirre, in an email response to El Paso Matters, said seven of 13 staff members tested positive for COVID-19.
Aguirre, a partner at the firm, said office manager Ana Moreno took immediate action and ensured safety precautions were taken, including testing, quarantining, adding safety measures to the office and sending staff that could work from home the necessary equipment to do so.
“Ana’s effort ensured that the COVID-19 outbreak did not impact the viability of our office. Clients were informed of our situation,” Aguirre said. “The vast majority were very accepting of our COVID-19 protocols such as telephonic meetings rather than in-person meeting.”
Asked if the law firm was concerned that their privacy would be violated by being identified on the state’s website, Aguirre said, “No problem with it. Public health/safety concerns outweighed privacy concerns.”
In Breckenridge, the restaurant Downstairs at Eric’s experienced an outbreak in May, which was placed under closed status in June.
Owner Eric Mamula, also the mayor of Breckenridge, said the outbreak occurred outside of the restaurant when four employees attended a party.
“We took the step just to close just to set the tone that that’s the right thing to do,” Mamula said. “We tested everybody else, nobody else had it.”
Mamula said the outbreak occurred when the restaurant was only doing to-go orders, so the impact was minimal. He said some patrons did call to ask what happened, but most were understanding and supportive of the establishment.
Mamula said there was never a concern with the health department identifying the names of businesses or facilities experiencing outbreaks.
“It’s really important that we know what everybody else is up to and who is sick,” Mamula said. “You are never going to beat this thing if nobody knows what’s going on.”
Cover photo: Abrusci’s Fire & Vine restaurant in Lakewood, Colorado, is listed on a state website of businesses with COVID-19 outbreaks. Two employees tested positive. The restaurant manager said the disclosure hasn’t impacted business. (Photo courtesy of Abrusci’s Fire & Vine)