AUSTIN (Nexstar) — Gov. Greg Abbott went to Lubbock on Tuesday to announce his plan to end the state’s mask mandate and allow businesses to fully reopen in Texas. The order will take effect on March 10.
“It is clear from the recoveries, from the vaccinations, from the reduced hospitalizations and from the safe practices that Texans are using, that state mandates are no longer needed,” Abbott said. The audience of business owners and community leaders applauded as he made the announcement.
The governor says that although it won’t be required at the state level, it is still good practice to wear a mask.
“Removing state mandates does not end personal responsibility when it comes to caring for family, friends and the community,” read a statement from the governor’s press secretary.
If COVID-19 hospitalizations in the 22 hospital regions of Texas rise above 15% for seven consecutive days, then county judges may implement a mask mandate for their area. But, county judges cannot penalize anyone for not following a county mask mandate.
Abbott cited the availability of vaccines as one reason for ending the mask mandate. However, Texas is one of the states with the lowest vaccinations per capita rate. Imelda Garcia, associate commissioner of the Department of State Health Services (DSHS), says part of the blame falls on the Centers for Disease Control.
“CDC is using older data that has us with a lower adult population than what is currently estimated now,” Garcia said. “And so we have shared that information. They have heard us, we have yet to actually see them make a change.”
The governor also cited therapeutic drug treatments, such as the Regeneron Antibody Cocktail being tested at Texas Tech Health Sciences Center in Amarillo. The committee monitoring the trials found that the treatment can help patients survive COVID-19 without requiring hospital care. Researchers also say the treatment can neutralize emerging variants of the virus.
Abbott did not consult all of his medical advisors before making the decision to fully open the state or lift the mask mandate. When asked about it, the governor’s press secretary said Abbott regularly speaks with Dr. John Hellerstedt, commissioner of the Texas Department of State Health Services; Dr. John Zerwas, a special advisor on Abbott’s staff and University of Texas executive vice chancellor for health affairs; and others in the medical community.
Texas voters are divided on whether preserving the economy or controlling the virus should be their top priority, according to a poll from the Texas Politics Project. The February poll showed 47% listing controlling the virus as top priority, while 43% chose helping the economy.
The divide in the poll is larger when broken down by political affiliation; 82% of Democrats prioritize controlling the virus, while 72% of Republicans say preserving the economy is more important.
Republican Florida Governor Ron DeSantis has won praise from conservatives across the country by rejecting most COVID restrictions. Some Texas Democrats are now implying that Abbott is also trying to get national attention to boost his political prospects.
“The rush to be the first state to lift their mask mandate, to be the first state to open 100% feels to me like it’s less motivated by public health and by science and more motivated on grabbing headlines and attention,” said State Representative James Talarico (D-Williamson).
However, Abbott’s supporters say removing restrictions will help the people who have been hurt by the unforeseen consequences of the pandemic.
“We need to look at this as not just being a one-dimensional issue,” U.S. Senator John Cornyn (R-Texas) said in response to a reporter’s question about Abbott’s decision. “We need to think about the victims of domestic violence that have been cooped up with their abuser, with the suicides that have taken place, to children that have fallen further and further behind,” Cornyn added.
Abbott’s announcement comes nearly a year after Texas initially went into a strict lockdown due to the coronavirus pandemic.
The initial lockdown in Texas was lifted on May 1, 2020, when several of the governor’s executive orders detailing his plan for phase one of reopening that state went into effect. Phase one allowed businesses, restaurants, churches, retailers, movie theaters and malls to reopen with social distancing protocols and 25% occupancy.
Phase two of reopening Texas was initiated on May 22, 2020. More businesses were permitted to open at 25% capacity, including bars, bowling alleys, bingo halls, aquariums and childcare facilities. Bars were under the most strict guidelines; patrons must be seated at a table with no more than six people, dancing was discouraged, there had to be six feet between different parties and hand sanitizer was required at the entrance. At this time, restaurants were allowed to expand to 50% capacity. Outdoor professional sports stadiums were allowed to reopen at 25% capacity.
Abbott put the third phase of reopening Texas into effect immediately on June 3, 2020. Businesses were allowed to expand to 50% capacity. Restaurants could expand to 75% capacity and have parties of up to 10 people starting June 12, 2020. Outdoor college stadiums were allowed to reopen with 50% capacity; professional stadiums moved from 25% to 50% capacity.
As the restrictions eased, data showed a steady increase in cases in Texas from May to June of 2020.
After the third phase, the mayors in Austin, Houston, San Antonio, Dallas, Fort Worth, El Paso, Arlington, Plano and Grand Prairie signed a letter to request the power to order mask mandates for their cities. On June 23, 2020, Abbott issued an executive order expanding mayors’ and county judges’ ability to impose restrictions, which allowed them to issue mask mandates in their cities.
COVID-19 case numbers continued to increase. At the time, Abbott blamed the increase in cases on people in their 20s and 30s going to bars and social gatherings in public. Because of the spike in cases, Abbott issued an executive order to reduce capacity at all businesses to 50%, except for dine-in establishments that had “less than 51 percent of their gross receipts from the sale of alcoholic beverages,” which were allowed to remain at 75% capacity.
On July 2, 2020, Abbott ordered a statewide mask mandate in counties with 20 or more active cases of COVID. By August 2020, cases were steadily decreasing for the first time since the beginning of the pandemic.
After a few months of steady decrease in cases, Abbott issued another executive order in October 2020. This order allowed all businesses to operate at 75% capacity, and churches, childcare facilities and schools did not have an occupancy limit.
Now, Texas leaders gear up for the implementation of Abbott’s latest executive order on March 10, when businesses will be allowed to open to 100% with no required mask mandate from the state.
The push for accountability after the winter storm crisis
Hearings in the Texas Legislature continued this week to look into the widespread power outages during February’s winter storm. At the same time, a subcommittee in the U.S. House of Representatives began looking into the same event.
Congressman Ro Khanna (D-California), chairman of the House Oversight and Reform subcommittee on the environment, requested documents in a letter to Bill Magness, the CEO of the Electric Reliability Council of Texas (ERCOT). Khanna said he is looking into winter preparations that ERCOT should have made following a joint report from the Federal Energy Regulatory Commission and North American Electric Reliability Corporation, but were not made.
“ERCOT’s own consultant has predicted that such extreme winter weather events will continue to occur every decade,” Khanna said in the letter. “The Subcommittee is concerned that the loss of electric reliability, and the resulting human suffering, deaths, and economic costs, will happen again unless ERCOT and the State of Texas confront the predicted increase in extreme weather events with adequate preparation and appropriate infrastructure.”
ERCOT board members issued a 60-day termination notice to Magness. The board said they will begin the search for a new leader immediately, and until then Magness will continue to serve as president and CEO. Several ERCOT board members have resigned in the wake of the crisis, including five members who do not live in Texas.
The Public Utility Commission Chair DeAnn Walker resigned on Monday. Her testimony at state House and Senate hearings led several lawmakers and Lt. Gov. Dan Patrick to call for her resignation.
“I testified last Thursday in the Senate and House and accepted my role in the situation,” Walker’s resignation letter to Gov. Greg Abbott reads. “I believe others should come forward in dignity and courage and acknowledge how their actions or inactions contributed to the situation.”
Gov. Abbott named Arthur D’Andrea, who has been a PUC commissioner since 2017, as the new chairperson.
Texas leaders — Gov. Abbott, Lt. Gov. Patrick, and Texas House Speaker Dade Phelan — have all promised reform following last month’s deadly winter storm that left millions without power for days.
The Texas Legislature has filed a half dozen bills in response to the storm. Some would require energy producers to winterize equipment and establish reserve emergency power.
Another bill would require board members of the Public Utility Commission to be elected, not appointed by the governor.
Sen. Drew Springer, a Muenster Republican, filed legislation requiring the chief executive officer and board members of ERCOT, the state’s electric grid manager, to live in Texas.
“It’s why the Texas Legislature is so great, we all come back home, and we all have to live with the people that we put rules and laws on top of,” Springer said.
But lawmakers have ignored warning signs before. Little changed after a winter storm caused widespread outages in 2011.
Craig Goodman, a political science professor at the University of Houston-Victoria, said the most complicated and needed proposals will face the toughest road and timeline.
“Oversight isn’t sexy,” Goodman said. “I suspect some of the strongest measures will probably face a lot more opposition in the Senate, where Patrick is probably going to want to block most things that are going to impose significant new regulations on energy providers in the Lone Star State.”
Quality of Care questions
Cissy Sanders was scrambling last April to get information — to do something, anything, for her vulnerable mother living in a nursing home where COVID-19 was spreading.
Sanders phoned the facility, Riverside Nursing and Rehabilitation Center, directly. She called its management company Regency Integrated Health Services. She dialed up city leaders in Austin. She contacted local and national elected officials and news outlets.
As she desperately waded through the labyrinthine structure of nursing home administration and ownership, Sanders struggled to find someone, anyone, with authority to field her questions. Then she made a surprising discovery. She learned the nursing home’s owner, the holder of its license, was not in Austin and wasn’t the nursing home’s corporate operator. The owner was housed in a nondescript building in rural Hamilton County, 120 miles north of her mother’s facility.
“What is Hamilton County Hospital District? I had no idea,” Sanders said.
Hamilton County Hospital District, which is a government body and operates under the name Hamilton Healthcare System, describes itself as a “hometown healthcare system.” It has a 25-bed hospital and a handful of small clinics, according to its website. But what you won’t find on the hospital district’s website is any mention that it owns Riverside Nursing and Rehabilitation Center in Austin and more than 20 other nursing facilities spread from Brownwood in the center of the state, to McKinney in North Texas, to Bandera in the Hill Country, according to the Texas Health and Human Services Commission.
While this type of ownership structure seemed odd to Sanders, and few in the general public probably know about it, it is common practice for hundreds of Texas facilities.
It’s all part of the Quality Incentive Payment Program, or QIPP, which has grown in the past four years to become a major funding apparatus for the industry. This fiscal year it will pump more than $1 billion from the federal government into about 860 nursing facilities. Over 540 of them are owned by government entities, like county hospital districts, which own the nursing home’s license and typically contract with nursing home operating companies, such as Regency, to run the facilities.
Just like the program’s name suggests, QIPP funds are based on quality improvements. Nursing homes get paid for meeting or exceeding certain measurable “metrics,” like reducing the number of residents getting pressure ulcers or taking antipsychotic medication.
Advocates and representatives of the nursing home industry tout the program as a success. They say it has linked funding to achievement, has resulted in measurable improvements and provides a critical supplement for Texas’ low Medicaid reimbursements.
But critics of QIPP question whether the program has delivered on its promise. And, a KXAN investigation has found that since the COVID-19 pandemic began, the federal government waived some reporting requirements that state health officials use as benchmarks to calculate payments to nursing homes. That means nursing homes have been paid as if they met some quality standards without having to prove it.
“So, is this program working effectively, or is it just another profit dumping from taxpayers into the owner’s coffers as a way to try to get more money into the facilities?” said Brian Lee, executive director of nonprofit Families For Better Care, which advocates for nursing home residents.
The QIPP program pays nursing facilities based on whether they meet certain standards of staffing and care. A nursing home can be paid for exceeding all of the metrics, or just some of them, depending on how they score.
There are four categories, called “components,” and each is broken down into multiple “metrics.” Each component addresses an important area for improvement.
- Component 1 – Facility must meet monthly and review “Quality Assurance and Performance Improvement” plans
- Component 2 – Three metrics requiring increased nurse staffing levels
- Component 3 – Three metrics address rates of pressure ulcers, use of antipsychotic medication and resident mobility
- Component 4 – Three metrics requiring improvement of infection control performance and processes
COVID-19 has hammered Texas nursing homes, killing over 8,800 residents in the past year. The rollout of the Pfizer-BioNTech and Moderna vaccines has drastically affected the virus’ spread. The number of active cases has plunged in nursing homes from a high of nearly 7,000 in early January to fewer than 2,600 a month later, according to HHSC records.
After the vaccine rollout began in Texas nursing homes in December, the number of active COVID-19 cases among residents dropped sharply through January and February. (Source: Texas HHSC data)
After the pandemic began, federal officials waived reporting requirements including data that are critical to calculating the third component (rates of bed sores, antipsychotic medication use and mobility). The Centers for Medicare & Medicaid Services (CMS) said the waiver would provide flexibility and allow facilities to focus on containing the virus. Without that data, HHSC has paid nursing homes, now on a monthly basis, as if they’ve hit targets for those areas of improvement, according to HHSC.
“Because the federal government chose to freeze the reporting of that data, the state does not have the ability to access those numbers in order to move forward on those aspects of the program. That’s why they waived those reporting requirements,” said Kevin Warren, president and CEO of Texas Health Care Association, which advocates and lobbies on behalf of nursing home operators.
The change has not stopped nursing homes from providing quality care, he said.
Quality care “doesn’t stop just because the federal government has frozen the ability to report that data. Those are still important requirements,” Warren said. “If a surveyor goes into a facility for a particular infection control reason and sees concerns or issues associated with one of those other measures, then part of their responsibility is to further investigate that issue.”
An HHSC spokesperson said QIPP is “not the sole program for monitoring and improving the quality of care in nursing facilities.”
“Strong monitoring and oversight of facilities’ compliance with infection control and other health and safety requirements is critical to protecting all residents in these facilities,” HHSC said in a statement. “That is why HHSC surveyors continue to perform on-site investigations in Medicaid and non-Medicaid facilities statewide in response to concerns about COVID-19 or any other potential health and safety issue.”
Trent Krienke, an Austin based health law attorney and counsel for the Hamilton County Hospital District, agreed with the assessment that QIPP has been a critical source of funds for the nursing home industry.
“I don’t think you can’t question the fact that Texas has some of the lowest Medicaid rates in the United States,” Krienke said. “This is a program to make up for some of that shortfall.”
Krienke spoke generally about QIPP and referred specific questions about Riverside Nursing and Rehabilitation to the facility’s management company, Regency Integrated Health Services. Regency declined to comment for this report.
Krienke said it’s important to note the changes in reporting requirements were initiated at the federal level, by CMS. HHSC and nursing home facilities are operating under rules they did not create.
“We are in extraordinary times,” Krienke said. “You’d have to ask CMS why they issued that blanket waiver. But my understanding is it was to reduce the burden and the red tape on nursing facilities, so they could better address COVID outbreaks and other COVID-related issues in their nursing facility.”
CMS did not respond to requests for comment for this report.
Meanwhile, critics of the program, like Texas Congressman Lloyd Doggett, question whether it has improved quality at all.
Doggett, a Democrat whose district stretches from Austin to San Antonio, said he began taking a closer look at QIPP after KXAN brought the reporting waiver to his attention. Now, Doggett said he is concerned the costs of the program outweigh the benefits.
“It’s clear that Texas taxpayers, federal taxpayers, are not getting their money’s worth,” Doggett said. “I don’t deny … many people in these homes that are really making an effort. But this program has simply taken taxpayer money, and spent a great deal of it, and has very little to show for it.”
Doggett referenced an audit report produced last December by the federal Department of Health and Human Services Office of Inspector General. That audit of Texas’ QIPP program “raises questions” about its use of funds and whether it improved nursing home quality.
The audit found that in the first year of QIPP in 2017, nursing homes participating in the program received less than half the earned incentive payments, generally rated below average in overall quality and declined in quality — yet continued to receive quality improvement payments.
“What we need first and foremost is we need Texas legislators involved,” Doggett said. “Get the bureaucrats involved over there and get some accountability that the federal inspector general was trying to do.”
The federal inspectors probed into the finances and nursing home quality in the QIPP’s first year, 2017. The federal report does not examine the impact of the current reporting waiver.
In the first half of fiscal year 2017, federal investigators found nearly half of the nursing facilities in the program declined in performance in two components, yet qualified for over $9 million in payments “because they still performed better than the national average,” according to a federal report.
“These facilities decreased in certain quality metrics specific to their facility, which may indicate that the facility was performing more poorly,” the federal report states.
In a letter addressing the audit’s findings, HHSC said it had “taken steps to raise the performance standards for participating providers” since the first year of QIPP. Newer quality measures require stronger improvement. More broadly, HHSC said it “believes QIPP currently operates in a manner that promotes economy and efficiency in Medicaid.”
The financial structure of the program is complex. QIPP money moves from the federal government to the state, then through health care companies called “managed care organizations,” or MCOs, then to non-state governmental entities, like county hospital districts and authorities, then into nursing facilities, according to the federal report.
Hamilton Hospital District, for example, is a non-state governmental entity. Privately owned nursing homes are also in the program.
“QIPP provides some incentives for nursing facilities to improve the quality of resident care. However, the results of our audit suggest that further analysis of the program is warranted,” the federal report states.
J.T. Borah, an attorney with the Carlson Law Firm in Austin who specializes in nursing home abuse and neglect cases, said he has seen the same problems linger in nursing homes for years despite the QIPP.
Many of Borah’s cases have involved understaffed nursing facilities where residents have died after complications from a fall or bed sore.
“They just get worse and worse. They become infected. They go septic; the bone gets the infection —it’s called osteomyelitis — and then they die,” Borah said.
The federal government has accepted the nursing home industry’s claims of poverty without asking them to prove it, he said.
“Please don’t get me wrong. I’m fine with them making money. I’m fine with them making a profit. What I’m not fine with is them making a profit before meeting the needs of their residents,” Borah said.
In the process of suing these facilities, Borah said he has seen how they are financed, and he believes they receive ample money.
“If you were to add up all this money, in addition to everything else they’ve been getting, our Texas residents of nursing homes should be getting five-star treatment. But they are not,” Borah said. “There are some facilities that are getting lots of money, not providing for care, then having their facilities overrun with COVID.”
Kevin Warren, CEO of Texas Health Care Association, called QIPP a “lifeline.”
“Given the significance of the Medicaid shortfall in Texas, this has been a very popular and very important program in terms of not only recognizing its efforts to reward quality, but also ensuring that there are the additional resources necessary for these providers,” Warren said.
A KXAN review of the number of cases of COVID-19 at Texas nursing facilities shows homes in the QIPP program have had some of the highest numbers of residents with the virus, according to HHSC data.
Eight of the 10 nursing homes in Central Texas with the most confirmed COVID-19 cases among their residents are currently enrolled in QIPP. Five of those were enrolled in the last fiscal year, earning from $690,000 to $1.2 million that year.
Warren said participation in QIPP and the prevalence of COVID-19 are two separate issues and shouldn’t be connected.
“You really need to unbundle the COVID issues, COVID concerns, from the quality of care and the program in this way,” Warren said. There has been a significant focus on infection control and prevention in nursing facilities since the pandemic began, he said.
“COVID has affected almost every single nursing facility in the state of Texas. So, it’s affected the rural, and it’s affected urban. It’s affected your one-star facilities, your five-star facilities, your for-profit, you’re not-for-profits. No one was excluded from this,” Warren said. “It’s really about looking at, you know, the circumstances in each individual building, the goings on within the community around the building, and … the co-morbidities and other things associated with the residents in the building.”
He said the COVID-19 issues and QIPP payments are “all interrelated.” The QIPP program’s outcomes have been “outrageous,” Doggett said, with nursing homes continuing to be paid after getting low scores from CMS.
Cissy Sanders, whose mother remains in Riverside Nursing and Rehabilitation in Austin, echoed Doggett’s sentiment.
Sanders said her mother is doing well at her nursing facility and received both doses of the Pfizer-BioNTech vaccine with no side effects. Regarding QIPP, Sanders said nursing home operators should be held accountable, all the more so during a pandemic.
“I mean, sorry. You have to do your job in order to get paid,” Sanders said. “That’s just a basic rule. Just like you in your job. Just like me in my job. We have to produce certain things. We have to meet certain metrics and perform at certain levels, in order to get our paycheck.”
A Failure to Report – Failing Consequences
Less than 12 hours before the midnight March 1 deadline, 104 police chiefs, sheriffs and constables were at risk of losing their peace officer licenses. Those chief administrators had hours to meet the reporting deadline or face violations of the Texas racial profiling law.
All 104 law enforcement officials faced a 90-day suspension of their peace officer license.
When midnight hit on March 1, just 15 agencies failed to file their racial profiling reports. When the Texas Commission On Law Enforcement’s Austin offices opened that morning, the commission started the process of holding those 15 administrators accountable.
“The law clearly states that if they do not submit it by midnight on March the first that we will take action,” TCOLE Executive Director Kim Vickers told KXAN.
“So, if it came in at two o’clock in the morning, which some of them did, five o’clock in the morning on the second, it wasn’t by the deadline, and by the law, that doesn’t matter. They still are going to be held accountable,” Vickers said.
TCOLE sent letters of reprimand to the Coke County Sheriff, Webb County Constable Precinct 2 Constable, Beverly Hills Police Chief and the Holiday Lakes Police Chief. The letters are a permanent record placed in each chief’s TCOLE file and subject to disclosure under the state’s open records act.
“Now, let’s not make light of that. It is a permanent reprimand that goes on their peace officer record that will never go away and which comes into place, especially if you’re a chief administrator and you try to go somewhere else and get a job as a chief; as the chief administrator you’re running for sheriff or running for constable, and you’ve got a reprimand from the regulatory agency that oversees your license on your record, it has a big effect,” Vickers said.
TCOLE also sent notices of violation and a warning of 90-day license suspensions to 11 other agencies that still have not reported anything to TCOLE.
That list includes seven police chiefs, two sheriffs and two constables. The notice TCOLE sent on March 2 gives each of those administrators until April 9 to submit their racial profiling reports or the state will issue fines of $5,000 against the agency and move to suspend those chiefs’, sheriffs’ and constables’ peace officer licenses.
A suspension means they’d no longer be able to work as law enforcement officers during that time.
“The suspension is horrible for them. I mean, it’s a killer for a lot of people, but don’t sell short the reprimand as well, because it means a lot on their record,” Vickers said.
If a Texas peace officer receives three reprimands, Vickers said state law would force TCOLE to revoke the license for life.
Within a day of our interview with Vickers in December, he started the process of correcting the lack of oversight our “Failure to Report” investigation exposed.
Vickers sent a warning to every Texas chief, sheriff and constable notifying them of the March 1 deadline and the requirement to file both a comparative analysis and the traffic stop data by midnight on March 1. Vickers then sent certified letters to those agencies, formally notifying them of the requirements to file these reports and the consequences for violating the law.
The Texas racial profiling law requires every agency that conducts routine traffic stops to collect race, gender and ethnicity information from every traffic stop and report that information to the state annually.
The racial profiling law hit the books in 2001. In 2009, a new law passed that gave TCOLE exclusive authority to collect the traffic stop data and to punish police chiefs, sheriffs and constables who did not comply with the reporting law.
The law also requires every agency perform a comparative analysis of annual traffic stop data to population metrics within the agency’s jurisdiction. The law requires each agency file the analysis annually, along with the traffic stop data.
The statute allows TCOLE to discipline police chiefs and sheriffs for “knowingly” failing to report. That disciplinary action could result in the loss of their peace officer licenses. TCOLE can also seek fines against the noncompliant agency of up to $5,000.
Our investigation into TCOLE’s decade-long oversight of racial profiling reporting shows TCOLE never collected a single analysis from any law enforcement agency. We also uncovered 257 times since 2015 that law enforcement agencies in Texas did not file annual racial profiling data.
For the past 11 years, TCOLE did nothing to hold those police chiefs and sheriffs accountable. That changed following our investigation.
“We’re going to get better at doing our part of it. We’ve already improved a lot since this started, and we’ll get it done. We’re going to get it done,” Vickers told KXAN in a March 2 interview.
Following our investigation in January, Vickers vowed to not let what we found happen again. The agency admitted it wasn’t aware the law required TCOLE to collect the comparative analysis until our interview with the director in December.
In the past few months, TCOLE designed a portal on its website where agencies file their annual data. Before, those agencies could file their raw racial profiling data, and TCOLE considered those agencies to have complied with the law.
Through an open records request filed with TCOLE, we found the commission did not have a single comparative analysis on file for any law enforcement agency in Texas.
After our investigation, TCOLE redesigned its reporting portal to ensure compliance with the analysis component of the reporting law.
“The way the reporting system is set up, it will not accept your numbers until the comparative analysis comes in. So, the thing that was the issue is the first thing that has to come in or the report is rejected. So, by creating the system that requires that comparative analysis to come in first then, we ensure that both components will come in,” Vickers said.
TCOLE’s leader believes the changes he’s made will ensure 100% compliance with the racial profiling law, and those who don’t comply will pay a price for breaking it.
“The racial profiling reporting is there for a reason. And the Legislature felt it was very important to know these numbers and these facts or they wouldn’t have made this a mandate,” Vickers told KXAN. “And it is a mandate, and we take the mandate seriously. I think they’re going to recognize how seriously we take it after this process, and we will continue to take it seriously and as I said before, I think pretty quickly you’ll see even these 16, we’ll go down to zero.”