Until Friday morning, even leaders in the long-term care industry had no idea the state was about to reverse course on releasing the names of nursing homes and assisted living facilities with COVID-19 outbreaks. The sudden move came after months of the Virginia Department of Health insisting that state law prevented it from doing exactly that.

State health officials had been working closely with industry groups for weeks. But Amy Hewett, vice president of strategy and communications for the Virginia Health Care Association-Virginia Association of Assisted Living — an industry group representing 345 of the state’s nursing homes and assisted living centers — said the organization only learned of the decision in a call with VDH leaders hours before an official announcement from Gov. Ralph Northam’s office.

The news release also came as a surprise to many state legislators, including some of the most vocal opponents of the previous policy. And while the newfound transparency was a welcome development, the abrupt change, coupled with a lack of clear explanation from the governor’s office, also led to confusion — and in some cases, frustration — over why the information wasn’t publicly released sooner.

“I can’t explain the reason for the about-face,” said Del. Patrick Hope, D-Arlington. “My interpretation all along is that they had the authority to do it. What they were citing was privacy, but when you have dozens and dozens of cases in a facility, there’s no reason that should even be an issue.”

State officials have repeatedly cited two sections of Virginia code to justify the nondisclosure. One, 32.1-38, 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. The other — section 32.1-41 — directs the state health commissioner to “preserve the anonymity of each patient and practitioner” unless the disclosure is “pertinent to an investigation, research or study.”

Essentially, the state’s argument boiled down to protecting patient privacy rights, including the confidentiality of facilities themselves. But on Friday, Northam spokeswoman Alena Yarmosky said that “changing circumstances with the COVID-19 pandemic in Virginia” made it possible to reveal the names of facilities without releasing private medical information.

“At the start of the pandemic, fewer COVID-19 outbreaks made it difficult to release the names of these facilities while upholding anonymity requirements under Virginia code,” she wrote in an email. “Now that there are more cases in Virginia, it is less likely that releasing this information would compromise anonymity or limit cooperation with a public health investigation.”

Hope, though, pointed out that some of the state’s long-term care facilities had been reporting dozens of cases for months. Henrico’s Canterbury Rehabilitation & Healthcare Center, the site of one of the worst nursing home outbreaks in the country, reported its 50th death from the disease in late April. Thirty facilities have already closed outbreaks, including some that reported their first cases to VDH in late March, according to the state’s database.

Sen. Scott Surovell, D-Fairfax, an attorney, has long disagreed with the administration’s interpretation of state code and said the new explanation “didn’t especially” make sense to him from a privacy perspective. 

“It seems to me that the risk of violating the privacy of individual people is most acute when you have a small number of positive cases at an individual facility,” he said. VDH addressed that concern in the new dataset by suppressing case and death numbers under a certain threshold to “preserve anonymity.” Surovell said he couldn’t explain why the agency wasn’t able to adopt a similar approach months earlier.

“I’m not going to guess,” he said. “I was coming at this from a legal perspective. I thought the information should have been released at the time because — beside the fact that I thought the law required it — it’s good policy for there to be transparency on most things the government does. I think if nursing homes knew this information was being released, they would take precautions and be safe.”

In a previous statement, Yarmosky said the administration’s initial policy was “based on guidance from the Virginia commissioner of health, in consultation with the Office of the Attorney General.” Charlotte Gomer, the press secretary for Attorney General Mark Herring, referred questions on the policy change back to the governor’s office and VDH. Health Commissioner Dr. Norman Oliver had a “late meeting” Monday, according to spokeswoman Tammie Smith, and could not immediately explain why guidance had changed to allow the state to release facility-specific information.

Legislators weren’t alone in expressing bemusement over the change. Sara Blose, director of health advocacy for the Central Virginia Legal Aid Society, said she had never been able to find support for the state’s argument that facilities had individual privacy rights, either in state code or through legal precedent. She guessed the reversal may have had more to do with public pressure coupled with the recent federal disclosure of facility-specific information, which, in some cases, inaccurately reported case and death counts at the state’s long-term care facilities.

“That’s my best guess to why they’re truly shifting to be a little more transparent,” Blose said. “Because how else do you target the spread? You really can’t.”

The state’s top 10 facilities for COVID-19 deaths accounted for a total of 316 fatalities. Blose said the long delay on publicly available information likely had the biggest impact on residents and families, especially those who were entering facilities for the first time and had no way of knowing how well staff and administrators were managing the outbreak.

“Maybe one or two people get it but they recover and they’re totally asymptomatic,” she added. “Versus having it be widespread. Like, if half the nursing home gets it, maybe there’s something going on with the hygiene or not having the right equipment.”

House Minority Leader Todd Gilbert, R-Shenandoah, shared the same concerns, calling the reversal “baffling” — especially considering early information on nursing home outbreaks in Washington state, he added.

“I think there was very early understanding that the elderly were particularly at risk,” Gilbert added. “I would think the administration would have used that and made nursing homes a singular focus.”

Hope said the heavy impact on long-term care facilities, coupled with the delayed release of state-level data, was leading to deeper legislative scrutiny of existing state laws and funding levels for long-term care facilities. The cost of mitigating the outbreaks is still a concern for nursing homes and assisted care facilities as the pandemic continues, according to Keith Hare, CEO of VHCA-VCAL.

On Friday, Northam announced $246 million in funding to “support long-term care facilities in their response to COVID-19,” according to a news release from his office. But $152 million of that has already been delivered to the state’s nursing homes directly through federal stimulus bills, Hare said. Approximately $40 million of the total is tied to an additional $20-per-day Medicaid reimbursement for nursing homes that the state first announced in early April.

Of the remaining $54 million, $20 million will go to assisted living facilities, which haven’t received any previous state or federal support, Hare said. VHCA-VCAL confirmed that the remaining $34 million will go to nursing homes as “last dollar” support if they exhaust previous federal funding.

“That can go toward COVID-related efforts if they spend all the other funding that’s provided,” Hare said. But facilities are still concerned that the additional funding won’t cover expansive new testing requirements required under the state’s new reopening guidance for nursing homes, also announced Friday. 

The guidance requires nursing homes to complete a baseline test of all residents and staff, then conduct weekly testing until the entire facility tests negative for at least two weeks. Smith said Monday that VDH, with assistance from the National Guard, has completed baseline testing at 92 long-term care facilities. She couldn’t immediately provide a breakdown of how many of those were nursing homes.

Virginia National Guard soldiers and airmen collected samples for COVID-19 testing at a long-term care facility April 28, 2020. (U.S. National Guard photo by Cotton Puryear)

The agency aims to complete baseline testing at Virginia’s 287 federally regulated nursing homes by July 15, according to the governor’s news release on Friday. But even when that’s completed, Hare said it’s still unclear whether the state laboratory, coupled with private diagnostic companies, has the ability to return 60,000 COVID-19 tests (the estimated number of nursing home residents and staff in Virginia) within a one- or two-day period, which he described as the only real way to prevent the virus from spreading through the facility.

“The idea is to know who’s positive and who’s not so you can separate them quickly, especially when it comes to staff,” he added. “It’s not a criticism of the state — it’s just still an open-ended question.”