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Mar 23

March 23, 2020 TML Coronavirus Update #6

Posted on March 23, 2020 at 4:25 PM by TML Staff

Urgent Updates


Has the state or any city or county issued a “shelter-in-place” order?


Yes, Dallas County became the first entity to issue such an order yesterday. The City of Waco followed suit today, and it appears that other cities will be doing so shortly. The governor has thus far chosen not to do so. He did take action related to cancelling elective surgeries to free up hospital beds. With regard to further local shelter-in-place orders, “Local officials have the authority to implement more strict standards than I as governor have implemented in the state of Texas,” Abbott said. “If they choose to do so I would applaud them for doing so, but at this time it is not the appropriate approach to mandate that same strict standard across every area of the state...”


If a city decides to issue a shelter-in-place order, should certain businesses and activities be exempt from the order?


The Dallas County order or City of Waco order could serve as a template for other local orders. It appears to follow what other states and localities have done with regard to exemptions. For example, certain “critical infrastructure” is typically exempted. In addition, the Texas construction industry, including the Texas Association of Homebuilders and other associations, has issued an open letter to elected officials asking that their work be allowed to continue. (The Dallas County order contains their suggested language.) Finally, the Federal Aviation administration has issued guidance to airports related to attempted airport closures.


Further Updates


What is a “public health authority” under Texas law?


In Texas, a public health authority is called a “local health authority.” A local health authority (LHA) is a competent and reputable physician licensed to practice medicine in Texas who is appointed by a municipality or county to administer state and local laws relating to public health within the appointing authority’s applicable jurisdiction. Tex. Health & Safety Code §§ 121.002; 121.022. Cities that have established local health departments, a public health district, or that receive grants from Department of State Health Services (DSHS) for essential public services are required to appoint an LHA. Id. §§ 121.028(b); 121.033; 121.041. In a city that has a local health department, the local health department director serves as the city’s LHA, provided that the director is a physician. Id. § 121.033(d). If the local health department director is not a physician, he or she is required to appoint a physician as the LHA, subject to approval by the DSHS and city council. Id. A city that does not have a local health department may appoint an LHA. Id. § 121.028(a).


An LHA has supervisory authority and control over the administration of communicable disease control measures within his or her jurisdiction unless specifically preempted by the state. Id. § 81.082. The LHA is also authorized to perform each duty that is necessary to implement and enforce a law to protect the public health or prescribed by DSHS, including the right of entry to real property and a right of access to an individual that is in isolation or quarantine. Id. §§ 121.024; 81.065. The LHA’s responsibilities also include, among others: (1) establishing, maintaining, and enforcing quarantine in the LHA’s jurisdiction; (2) aiding DSHS with local quarantine, inspection, disease prevention and suppression, birth and death statistics, and general sanitation within the LHA’s jurisdiction; (3) reporting the presence of contagious, infectious, and dangerous epidemic diseases in the city; (4) reporting to the DSHS on any subject on which it is proper for a report to DSHS to be made; and (5) aiding DSHS in enforcing proper rules, requirements, ordinances, sanitation laws, quarantine rules, and vital statistics collection. Id. § 121.024.


Does Texas law allow for disclosure of protected health information to local health authorities or individuals?


Yes. The Texas Communicable Disease Prevention and Control Act (Health & Safety Code Chapter 81) allows for disclosure of information linking a person who is exposed to a person with a communicable disease as well as required disclosure of monitored individuals to first responders. Information related to a person with a communicable disease can be released generally for statistical purposes so long as the release protects the identify of the any person. Id. § 81.046(c)(1). Medical or epidemiological information, including information linking a person who is exposed to a person with a communicable disease, may be released:


1.  for statistical purposes if released in a manner that prevents the identification of any person;

2.  with the consent of each person identified in the information;

3.  to medical personnel treating the individual, appropriate state agencies in this state or another state, a health authority or local health department in this state or another state, or federal, county, or district courts to comply with this chapter and related rules relating to the control and treatment of communicable diseases and health conditions or under another state or federal law that expressly authorizes the disclosure of this information;

4.  to appropriate federal agencies, such as the Centers for Disease Control and Prevention, but, except as provided under Subsection (c-3), the information must be limited to the name, address, sex, race, and occupation of the patient, the date of disease onset, the probable source of infection, and other requested information relating to the case or suspected case of a communicable disease or health condition;

5.  to medical personnel to the extent necessary in a medical emergency to protect the health or life of the person identified in the information;

6.  to a designated infection control officer;

7.  to governmental entities that provide first responders who may respond to a situation involving a potential communicable disease of concern and need the information to properly respond to the situation; or

8.  to a local health department or health authority for a designated monitoring period based on the potential risk for developing symptoms of a communicable disease of concern.


Id. § 81.046(c)(1)-(8). Only the minimum necessary information may be released to first responders and local health departments or LHAs for a designated monitoring period, as determined by an LHA, local health department, governmental entity, or DSHS. Id. § 81.046(c-2).


Does the Health Insurance Portability and Accountability Act (HIPAA) allow protected health information to be disclosed to a local health authority without the individual’s consent?


Yes. HIPAA provides that health plans, health care clearinghouses, and health care providers may use or disclose protected health information without the written authorization of the individual or the opportunity for the individual to agree or object to:


(i) A public health authority that is authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury, or disability, including, but not limited to, the reporting of disease, injury, vital events such as birth or death, and the conduct of public health surveillance, public health investigations, and public health interventions; or, at the direction of a public health authority, to an official of a foreign government agency that is acting in collaboration with a public health authority.

. . .

(iv) A person who may have been exposed to a communicable disease or may otherwise be at risk of contracting or spreading a disease or condition, if the covered entity or public health authority is authorized by law to notify such person as necessary in the conduct of a public health intervention or investigation


45 C.F.R. § 164.512(b)(i), (iv).  See this U.S. Department of Health and Human Services bulletin as well.


Public health authority means an agency or authority of the United States, a State, a territory, a political subdivision of a State or territory, or an Indian tribe, or a person or entity acting under a grant of authority from or contract with such public agency, including the employees or agents of such public agency or its contractors or persons or entities to whom it has granted authority, that is responsible for public health matters as part of its official mandate. 45 C.F.R. § 164.501.


What can a city official say publicly about local cases of COVID-19?


A city official can say how many cases exist in the city so long as they do not identify any individuals. Tex. Health & Safety Code § 81.046(c)(1). A city should not disclose any additional information to the public about the cases to avoid disclosing protected health information. In addition to local resources a city may have, the Department of State Health Services has a web page with cases in each Texas county. 


Must a LHA disclose information about COVID-19 to first responders?


Yes. A local health department or health authority shall provide to first responders the physical address of a person who is being monitored by the local department or authority for a communicable disease for the duration of the disease’s incubation period. Id. § 81.046(c-1). The local health department, health authority, or other governmental entity, as applicable, shall remove the person’s physical address from any computer-aided dispatch system after the monitoring period expires. Id.


Reports, records, and information relating to cases or suspected cases of diseases or health conditions may be released to the extent necessary during a public health disaster, including an outbreak of a communicable disease, to law enforcement personnel and first responders solely for the purpose of protecting the health or life of a first responder or the person identified in the report, record, or information. Id. § 81.046(f). Only the minimum necessary information may be released under this subsection, as determined by the health authority, the local health department, or the department. Id.


Who is considered a first responder for the purposes of the Texas Communicable Disease Prevention and Control Act?


First responders are defined as public safety employees or volunteers whose duties include responding rapidly to an emergency. Examples of first responders include peace officers, fire protection personnel, certified firefighters or members of an organized volunteer firefighting unit, and individuals certified as emergency medical services personnel by DSHS. Tex. Gov’t Code § 421.095(1).


Is information received under the Texas Communicable Disease Prevention and Control Act considered public information under the Public Information Act?


No. Reports, records, and information relating to cases or suspected cases of diseases or health conditions are not public information under Chapter 552 of the Government Code. Tex. Health & Safety Code § 81.046(b). This also includes investigations by local health authorities into suspected cases of diseases. Open Records Decision No. 577 (1990) (concluding that any information acquired or created during an investigation under Chapter 81 of the Health and Safety Code is confidential and may not be released unless an exception set out in the statute applies); Op. Tex. Att’y Gen. No. OR2009-10186 (2009) (concluding information gathered or created by the city’s health department pursuant to the provisions of chapter 81 were not subject to disclosure under the Public Information Act).


Has TCEQ extended the deadlines for occupational licenses renewal?


Yes. In response to the disaster declaration issued by the governor, TCEQ is extending the expiration dates of all occupational licenses expiring in March and April of 2020 by 30 days. These occupational licenses include the following:


-Backflow Prevention Assembly Tester (BPAT)

-Customer Service Inspector (CSI)

-Landscape Irrigator, Technician and Inspector

-Leaking Petroleum Storage Tank (LPST) Corrective Action Specialist and Project Manager

-Municipal Solid Waste (MSW) Operator

-On-Site Sewage Facilities (OSSFs), including Septic Tanks

-Smoke School: Visible Emissions Evaluators

-Underground Storage Tank Contractors and On-Site Supervisors

-Wastewater Collection Operators

-Wastewater Operators

-Water Operators

-Water System Operating Company

-Water Treatment Specialist (WTS).


Has TCEQ extended the deadlines for the continuing education requirements for renewal of occupational licenses?


No. TCEQ is encouraging anyone with continuing education requirements to seek online training opportunities when possible.


Has TCEQ canceled occupational license exams?


Yes. In the interest of safety, paper exams have been cancelled through May 2020. In addition, computer-based testing (CBT) is not currently available. Therefore, TCEQ is extending the validity of new applications until testing is available. If you have an approved application on file, you will not be required to reapply and pay the application fee again.


For other questions or concerns, please email


Can hotels in our city be used to quarantine or treat COVID-19 patients? 


The Texas Hotel and Lodging Association (THLA)has reached out to TML to offer some member hotels to cities for that purpose. THLA recommends the following:


1.  Each city should work with its national CDC contact and the city’s local health authorities to determine the potential worst case need for separate living accommodation units (e.g.; separate hotel rooms) for quarantined individuals, recovering individuals, other at-risk populations, and for medical and emergency providers.

2.  THLA can provide a list of hotels that are willing to work with their local government entity to lease their facilities for that purpose. THLA already has a list of over 600 hotels statewide that are willing to enter into such a lease agreement and can expand that list exponentially.  

3.  THLA has a sample lease document that has been used for this purpose in other states that we have adapted for Texas and we can provide to your city legal department. The leases can be edited and adjusted to meet the particular needs of the community and the hotel. 

4.  Each city should determine NOW the specific duties that it would contract for in such accommodation lease scenarios, and with what entities for items such as food service, staffing, maintenance, etc. A city will not want to have to figure out these items in the height of the health crisis. 

5.  Lodging industry leaders are ready to work with each city’s leadership on developing working protocols in advance on all of these items. 

6.  If done successfully, each city will already have an option contract for all of the potential quarantine and recovery space that it may need in the worst case scenario. This will help get the community through this crisis and keep hospitals and medical workers safer and focused on treating the most critical care patients.


According to THLA, “we are ready to provide this partnership and want to do everything we can to ensure readiness and the optimal resources for this health crisis. Please contact us as soon as possible to ensure and formalize this resource.” THLA can be reached at 512-474-2996.


Where can I find archived issues of the TML Coronavirus Updates?


TML Coronavirus Updates are archived chronologically here and by subject here.