El Paso, Texas withhold Covid-19 nursing home stats; Federal data is public, but unreliable

Editor’s note: Following an update from CMS on June 23, 2020–a nursing home that was showing 11 patient deaths in El Paso, as of May 31, pertained to deaths other than COVID-19. CMS says the data in column Q of the nursing home data (Residents Total All Deaths) is NOT related to COVID-19.  Also, this article includes a correction in the number of reported COVID-19-related deaths, based on CMS data, at Mountain View Health and Rehabilitation.

EL PASO, Texas -- While the State of Texas refuses to tell taxpayers the names of which nursing homes have positive COVID-19 cases—the federal government is naming names.

And the two sites aren’t even close on the numbers of COVID-19 cases and deaths in Texas.

Accurate information about both COVID-19 deaths and cases at each Texas nursing home is critical to families with members living in these facilities, or for families considering placing a relative in a local nursing home, according to transparency advocates.

According to the first set of data released by the Centers for Medicare and Medicaid Services (CMS), over 95,500 residents in nursing homes, nationally, have tested positive for COVID-19, and 31,782 have died from it.

As of Wednesday morning, Texas Health and Human Services says 802 nursing home residents have died from COVID-19 in the state. However, CMS says its data shows just 321 deaths—a deficit of 481.

CMS, which regulates and oversees the nation’s nursing homes receiving Medicare and Medicaid funding, announced in April it would require nursing homes to report cases of COVID-19 to all residents and their families, as well as directly to the CDC.

In turn—CMS said it would publish that information on its site for the public to see.

CMS, however, is acknowledging some problems with its data.

“As with any new reporting program, some facilities will struggle with their first submissions, and therefore, some of the data from their early submissions may be inaccurate. Since facilities may correct data in future weeks, the data is subject to fluctuations as data for previously reported weeks may change when the website is updated,” CMS said.

CMS says the data submitted to the CDC was for the last two weeks of May; however, some of the data could include numbers as far back as January 1.

ABC-7 looked at three nursing homes in the El Paso area that showed markedly higher number of deaths and positive cases of COVID-19 compared to the other facilities. Not everyone in the El Paso area, however, reported to the CDC, according to the CMS data. It says those facilities could face fines.

In the first case, ABC-7 looked at Ambrosio Guillen Texas State Veterans Home in El Paso.

ABC-7 has previously reported the Ambrosio Guillen Texas State Veterans Home had a dozen residents die from COVID-19, and several others had tested positive for the deadly virus.

The CMS data, however, shows zero deaths and 14 positive cases amongst the patients at the facility on Kenworthy Street that has 160 beds.

When reached by email, Karina Erickson, communications director for the Texas General Land Office, which oversees the facility, says she wasn’t sure where CMS got its numbers for the Ambrosio Guillen Texas State Veterans Home. “If that's what they (CMS) are reporting, then they are definitely incorrect,” Erickson said in an email to ABC-7.

Erickson says as of June 15, the Ambrosio Guillen Texas State Veterans Home had 34 residents test positive for COVID-19, and 12 residents die from the virus. Additionally, she said 19 residents have recovered from the deadly disease.

In the second case, ABC-7 looked at Mountain View Health and Rehabilitation in central El Paso.

According to CMS data, Mountain View Health and Rehabilitation reported two resident deaths. It also reported 91 patients tested positive for COVID-19, and 35 employees contracted it, according to CMS.

ABC-7 reached out to Creative Solutions in Healthcare, which operates the facility, about the CMS data.

Leila Jones, director of social media at Creative Solutions in HealthCare, said, in part: “Mountain View values its residents' safety above all else. Our policy has been, and continues to be, to follow the most stringent guidelines in place.”

Jones also said the facility reports any positive cases to regulatory agencies, including CMS.

Again, the state of Texas won’t confirm the number published by the federal agency, or offer its own numbers.

The CMS website shows a third cluster at a nursing home in northeast El Paso, but even the agency's own site shows conflicting information.

The nursing home, which ABC-7 is not naming because of those discrepancies in the data, is shown as reporting 11 patient deaths as of May 31 on one part of the CMS website, while showing zero patient deaths on another part of the same site.

When ABC-7 reached out to the facility for an explanation, the licensed nursing home administrator texted back, “Greetings. We do not speak with the media." The nursing home's website says the facility "remains with no suspected or confirmed cases."

ABC-7 reached Chris Van Deusen, spokesperson for Texas’ health department, for further clarification on the numbers. He said: “We report case and death information for communicable diseases at the county level. We don't report at the heath care facility level in order to protect the privacy and confidentiality of individuals, as required by law.”

With questions about the federal data and no answers from the state, ABC-7 turned to the local health authorities.

Prior to the release of the CMS data, ABC-7 filed a public records request under the Texas Public Information Act on behalf of our viewers with the El Paso Department of Public Health. The request included any reports or records that show which nursing homes or assisted living facilities have had (or have) cases of COVID-19. We also asked for records that show how many people have recovered or died. We did not ask for patient names—only statistics.

El Paso officials have never released any information about which nursing homes have cases of COVID-19, including deaths, since the pandemic began. They often cite a health department policy, however, when ABC-7 filed a public records request to obtain that policy the city responded by saying there were no such records.

During news conferences, city officials only refer to nursing homes as “health care facilities” while describing outbreaks inside. The city has refused to publicly connect any infections at the Ambrosio Guillen Texas State Home for Veterans, for example, despite the government facility’s own acknowledgement of its death toll and infections.

City spokeswoman Laura Cruz-Acosta confirmed no written policy exists in the city as previously said, but passed along an email from “staff” saying, in part, it believed, “Information concerning communicable diseases such as COVID-19 are confidential under the Texas Health and Safety Code, Chapter 81,” under section 81.046.

Joe Larsen, a Houston-based freedom of information attorney, told ABC-7 there’s no reason for the state to withhold statistical information about COVID-19 from the public, especially if the state is not releasing personal information about an individual.

Larsen says El Paso and other governmental agencies appear to be relying on this state statute, but he noted: “There’s a specific provision of that statute that allows the information to be released as long as you don’t have the name.”

ABC-7 has only asked for cases and deaths by number. We have never asked for names of patients; only the location of where COVID-19 cases are located.

“It’s for statistical purposes; all you do is de-identify it. So what’s the argument as long as you can release it without releasing somebody’s name? The argument should be the burden is on El Paso as to why they should be able to withhold it, and I haven’t heard a very good argument from them," Larsen said.

Larsen, who is also a board member of the Freedom of Information Foundation of Texas, says similar arguments have gone all the way up to the Texas Court of Appeals and the information was required to be released.

Larsen said the Freedom of Information Foundation of Texas sent a letter April 28 to the state Health and Human Services Commission demanding the state release to the public the names of nursing homes with reported COVID-19 cases.

He said the commission responded by saying it believes it needed to treat the letter like a public records request under the Texas Public Records Act.

Instead of responding with the information, Larsen said the Texas Health and Human Services Commission said it is seeking an opinion from Texas Attorney General Ken Paxton.

“This is a public health emergency and the more information the public has the better they’re going to be able to deal with this public health emergency. It’s a matter of life and death, really,” Larsen said.

Larsen couldn’t speculate as to what Attorney General Ken Paxton would rule, but said it might be necessary to go all the way to the courthouse with this.

ABC-7 reached out to Attorney General Paxton and the Texas Health and Human Services Commission for comment.

Kelli Weldon, a spokesperson for the Texas Health and Human Services Commission, responded via email with the following statement:

“We are working to release as much information as we are legally permitted to share publicly, in compliance with state and federal law. As part of this process, HHSC requested a ruling from the Texas Attorney General’s Office related to media requests for data on confirmed COVID-19 cases in HHSC-regulated facilities, identified by facility.”

ABC-7 has not heard back from the Attorney General.

CMS is set to release a new batch of nursing home data on Thursday, June 17.

You can access that data and specific nursing home information here.

This article was updated on June 23, 2020, to include a correction in the number of reported COVID-19-related deaths, based on CMS data, at Mountain View Health and Rehabilitation.