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About a year ago, as a once-in-a-century public health crisis was unraveling across the world, it was abundantly clear how unprepared Texas was for the pandemic.
An aging data collection system within the Texas Department of State Health Services made it difficult for health officials to fully assess the impact of COVID-19, which the state's official numbers say has left nearly 50,000 people dead. Protective gear and COVID-19 tests were in short supply, leaving health care providers and governments scrambling to find supplies. Waves of infection would soon overwhelm entire hospital systems, while morgues across the state would run out of space to store the dead.
But now, with vaccines widely available and daily new case totals declining, preparing for the next pandemic is competing for space on the legislative priority list. Hot-button conservative issues — such as the permitless carrying of handguns, voting restrictions and measures targeting transgender children — and the state’s response to a deadly winter storm have taken up much of the oxygen in the Capitol this legislative session. And the legislative proposals related to the pandemic gaining the most attention from Republican leadership in both chambers are bills that would restrict the governor’s ability to impose restrictions in public health emergencies.
With fewer than 35 days left in the legislative session, public health experts are urging lawmakers to prioritize preparations for another infectious disease outbreak — the possibility of which health officials say is increasingly likely. Lawmakers this session have filed a flurry of proposals related to the pandemic, many of which are at varying stages of the legislative process. Some, experts say, constitute meaningful reform. Others, they warn, could leave the state worse off.
A “boom and bust cycle”
Gerald Parker, director of the Pandemic and Biosecurity Policy Program at Texas A&M University’s Bush School of Government and Public Service, said officials often prepare for infectious diseases in the immediate aftermath of an outbreak. But, as other issues take priority over time, attention to and funding for public health issues fades in what he called a “boom and bust cycle.”
“We're going to be faced with a future series of epidemics, outbreaks — whether they rise in the category of a pandemic, we can't predict,” Parker said. “But COVID has told us we need to take preparedness much more seriously than we have in the past as a nation.”
One area of particular concern for legislators is the power wielded by the governor during prolonged times of emergency. Republican Gov. Greg Abbott faced fierce criticism from officials within his party over unilateral decisions to temporarily shut down Texas businesses and to require face masks be worn in public spaces. Abbott also resisted calls from some lawmakers to convene a special session of the Legislature to consider pandemic-related proposals and to weigh how the state should spend billions in federal relief dollars.
In response, lawmakers have sought to curb the power of the governor during states of emergency or disaster. The Texas Senate earlier this year took up and passed bills that would prohibit nursing homes from shutting down visitation to people deemed “essential caregivers.” Other measures with Senate backing would forbid the governor from mandating the closure of places of worship or gun stores under any circumstances. These proposals, all of which were listed among Lt. Gov. Dan Patrick’s top 31 priorities, run counter to guidance from public health experts, many of whom have advocated for strategic closures or capacity limitations as a way to slow the spread of the virus.
The most comprehensive attempt to claw back power from the governor is a proposed constitutional amendment — Senate Joint Resolution 45 and its enabling bill, Senate Bill 1025 — that would require the governor to call a special session in order to declare a state emergency that lasts more than 30 days. The special session would give lawmakers the chance to terminate or adjust executive actions taken by the governor, or pass new laws related to the disaster or emergency. It would also specify that a statewide disaster declaration preempts a local one.
In discussion on the Senate floor, state Sen. Sarah Eckhardt, D-Austin, who previously served as Travis County judge, expressed concern that the Legislature would not be able to act quickly enough to respond to events during a disaster.
“I don't see this Legislature being able to convene fast enough to answer ... in the kind of disasters I have seen and expect the state to see in the future,” Eckhardt said.
Eckhardt’s concern was shared by medical experts, who cautioned that state and local officials need flexibility to respond to emergencies in real time.
“Some of those regulatory ceilings Texas has set prevent a lot of really important work that needs to be done at the local level,” said Valerie Koch, co-director of the Health Law and Policy Institute at the University of Houston Law Center. She said that measures like those currently moving through the Legislature often come at “the detriment of public health” and could exacerbate existing health disparities.
In the Texas House, a wide-ranging pandemic bill that was deemed a top priority of the chamber’s leadership has so far struggled to gain momentum. House Bill 3 by state Rep. Dustin Burrows, R-Lubbock, would, among other things, carve out future pandemics from how the state responds to other disasters, require local jurisdictions to receive approval from the secretary of state before altering voting procedures during a pandemic and address liability protections for businesses operating during a pandemic. It has languished in the House State Affairs Committee for more than a month.
Koch said that lawmakers should act with some urgency in preparing for the next crisis. But she warned against “a knee jerk reaction” based on “political whims” rather than “sound scientific evidence that justifies various restrictions.”
“It's much harder to get public buy in if you are slapping a Band-Aid on problems, rather than exploring and researching and analyzing [and] proposing rules that can be applicable in future circumstances,” Koch added.
Some measures from the Senate
Though they haven’t been flagged as top priorities by Patrick, the Texas Senate last week advanced a pair of bills that represent perhaps the most substantial action by either chamber in response to the coronavirus pandemic. The sweeping Senate Bill 968 by state Sen. Lois Kolkhorst, R-Brenham, who chairs the Senate Health and Human Services Committee, includes a mix of provisions that experts say would bring mixed results.
The measure would require Texas to contract with companies to guarantee an adequate stockpile of personal protective equipment. It would also create the Office of the Chief Epidemiologist within DSHS to respond to disease outbreaks and coordinate with the Texas Division of Emergency Management. An expert panel, composed of five doctors and four health care providers, would be charged with providing recommendations to the chief epidemiologist during declared emergencies or disasters. And the proposal would require health officials to produce a report on the successes and failures of the state’s coronavirus response.
Parker, of Texas A&M University, stressed the importance of cooperation between state agencies in preparedness and response.
“The need to work seamlessly is absolutely essential,” he said.
However, if passed by the Texas House and signed by Abbott, the measure would also limit the duration of a public health disaster or emergency declaration to just 30 days. Only the Legislature would have the power to renew a declaration. And the bill would ban government agencies or businesses from requiring proof of a COVID-19 vaccination, an expansion of an earlier executive order signed by Abbott that outlawed so called “vaccine passports.”
Senate Bill 969, also by Kolkhorst, addresses what Parker called the “heartbeat” of pandemic response: data collection. A glitchy state computer system stymied efforts in the early days of the pandemic to track and manage the coronavirus in Texas and left policymakers with incomplete, and at times inaccurate, data about the virus’ spread. Reliable and transparent data could better prepare hospitals for a wave of infections or inform decisions about resource allocation, Parker said.
“It allows us a better ability to anticipate shortfalls and cover those shortfalls before they even happen,” Parker said.
The bill, which was unanimously approved by the state Senate, would require DSHS to publicly post on its website “all available de-identified public health data” during a disaster and coordinate with local health officials to implement a “standardized and streamlined” method for sharing information. DSHS would also release compliance reports for laboratories that report data to the state and conduct quality assurance checks to ensure data is “systematically reviewed for errors and completeness.” Health care facilities that fail to report information could be fined up to $1,000 for each instance.
“Lawmakers and the public alike have watched as government agencies responded with sweeping statewide policies to reduce the impact of the virus,” Kolkhorst said in a March statement after the bills were filed. “Sometimes these measures struggled to find the right balance between public health and our individual rights. We must now utilize the lessons learned over the past year to improve the state's response to any future health event.”
“Structural, systemic barriers”
While experts have pointed to the need to prepare for future health crises, they also say that there are immediate steps lawmakers must take to address longstanding disparities in health care that have been laid bare and exacerbated by the pandemic.
Texas has the largest share of uninsured people in the nation, leaving many with costly medical bills at a time when tens of thousands of people lost their jobs. Communities of color in Texas have disproportionately died from the virus, but vaccine distribution in those areas lags behind whiter, more affluent parts of the state.
“These inequities are not new,” said Nadia Siddiqui, chief health equity officer at the Texas Health Institute. “They are a reflection of the deep and longstanding, underlying structural and social inequities that low-income [communities] and communities of color have faced for too long.”
Siddiqui said it’s vital that lawmakers act now to expand vaccination access in rural areas and communities of color through mobile clinics and partnerships with community organizations. She also stressed the need to expand access to health insurance for low-income Texans. Texas is one of 12 states that have not expanded eligibility for Medicaid, a federal insurance program for low-income people.
And she called on the Legislature to reinvest in an Office of Health Equity. In 2017, lawmakers defunded and quietly shuttered the Office of Minority Health Statistics and Engagement, an office within the Texas Health and Human Services Commission that addressed racial disparities and worked with communities to promote racial equity in health care.
In response, a group of Democratic Texas state representatives filed a measure to formally establish and fund the Office of Health Equity. The Texas House on Thursday is slated to take up House Bill 4139. A similar measure in the Senate by state Sen. Judith Zaffirini, D-Laredo, was referred to the Senate Health and Human Services Committee but has not yet received a hearing.
“We've really got to address those structural, systemic barriers to opportunity and health within our state,” Siddiqui said.
Disclosure: Texas A&M University and the University of Houston have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.