The Missouri legislature has retaliated against the state health department by including what some called drastic cuts to the agency in next year’s budget.
Lawmakers approved the cuts, totaling in eight eliminated positions, after the Missouri Department of Health and Senior Services refused to reveal the number of people in Missouri who had tested positive for antibodies for a mysterious virus. The virus reportedly killed a Meramec State Park worker in 2017.
According to the health department, the state, along with the Centers for Disease Control and Prevention, tested certain state workers’ blood for traces of the Bourbon virus, an emerging disease that first occurred in 2014 and is likely spread by ticks. The results of those tests have been kept confidential.
DHSS refused to comply with a subpoena from the Missouri House of Representatives that requested the number of people who had tested positive for the virus.
"Any bit of information"
The position left lawmakers frustrated at a budget hearing earlier this week.
“I can’t go home and confidently tell my constituents that I believe the state department of health is working on their behalf when they shut me out and shut all the members of the House out completely,” said Budget Committee Vice Chairman Justin Alferman, R-Hermann.
At that same hearing, lawmakers said they didn’t understand why the department couldn’t just eliminate any identifying information from the data set.
“I’m not an unreasonable person,” said Alferman. “I’m asking for a little bit of information, any bit of information.”
But the health department said disclosing the information, even just the number of positive cases, would violate patient privacy laws. That’s true even if peoples' names were erased, it said.
“Significant information has been publicly reported and is publicly available regarding the testing,” said the department in a legal summary given to reporters. “It has been reported that park employees were tested, the media has a list of names of park employees, and the number of people tested is small.”
As a result, “there is more than a small risk of identifying individuals if DHSS releases the number of positive test results,” wrote the department.
The federal Health Insurance Portability and Accountability Act — or HIPAA — makes it illegal to disclose personal health information except in certain serious circumstances. According to DHSS, none of those circumstances are present in the Bourbon virus dispute.
Health data can be shared if certain factors are erased (such as addresses, names or ages.) But Clayton health care lawyer Donn Herring agreed that even if the data was de-identified, the sample size of workers is so small patients could still be recognized.
“If there’s a small patient population and you know that X number of people in that population have been exposed to that virus, maybe those two things together is enough to give the department of health concern,” he said.
House budget chairman Scott Fitzpatrick, R-Shell Knob, said, in a phone interview, he’s seen DHSS report health statistics from small samples before.
“We’ve had reports of where the department has had one case of specific disease in a county,” he said. “I feel like that’s more close to being individually identifiable. I feel like they’re definitely hiding something.”
Herring said a case could be made to disclose the number of people who tested positive for Bourbon, but “whether the legislature would be the proper recipients … I don’t think we have enough facts at this point [to make that determination].”
What is it?
The Bourbon virus is a relatively new virus that was only first identified in 2014. It’s named for the place it was first found: Bourbon County, Kansas. Only a handful of cases have been confirmed in the United States since then. Although it’s difficult to tell with such a small sample size, experts agree the virus is most likely spread through ticks.
After the case emerged in 2017, Missouri’s health department tested 7,000 ticks from Meramec State Park and found no sign of the virus. Ticks that had previously been collected in 2015 for a different study were also tested. From that collection, scientists found the virus in a “small portion” of ticks collected from northwest Missouri. (Meramec State Park is in the central part of the state.)
After the department refused to change its position, the legislature approved the budget, including the cuts, late Wednesday night.
Alferman said he tried to talk to the department for ten weeks regarding cutting eight department positions and didn’t get a response.
“Either they don’t care, or they’re already receiving enough funding to where they did not believe it was adequate to come and talk to the members of the budget committee,” he said.
The governor will still need to sign off on the cuts.
In the meantime, the DHSS has not shied away from potential court action.
“Because our two branches of government have been unable to resolve this matter, the department respectfully suggests that it may be appropriate for the third branch of government to determine whether the information can be lawfully disclosed,” said the department’s general counsel, Nikki Loethen, in a letter to House Speaker Todd Richardson.
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Correction: An earlier version of this story stated the subpoena requested the number of state parks workers who had tested positive for the Bourbon virus. The request was for any people in Missouri who had tested positive.