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Texas Gov. Greg Abbott talks to guests on March 15, 2023, at the Fort Worth Chamber of Commerce’s Leaders in Government program at The Worthington Renaissance Fort Worth. (Cristian ArguetaSoto | Fort Worth Report)
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Fort Worth hospitals will soon have to report the immigration status of patients who walk through their doors. 

Texas Gov. Greg Abbott signed an executive order Aug. 8 that requires public hospitals in the state to collect this information so those institutions can then track costs incurred for the care of undocumented patients beginning Nov. 1. 

The quality of patient care will not be affected, according to the executive order. However, immigrant advocates have raised concerns that the order could violate patient privacy and discourage undocumented people from seeking health care services.

The order will extend to Fort Worth hospitals, health care facilities and providers enrolled in Medicaid and Children’s Health Insurance Program. Hospitals will have to report data to the Texas Health and Human Services Commission on a quarterly basis with initial submissions due March 2025. 

Stephen W. Love, president and CEO of the Dallas-Fort Worth Hospital Council, said North Texas hospitals will work with the Texas Health and Human Services Commission “to comply with new procedures, regulations or requirements resulting from the executive order.” 

The Dallas-Fort Worth Hospital Council is made up of 90 North Texas hospitals that unite to advance health care in the region. 

Representatives with Baylor Scott & White Health, Cook Children’s Health Care System, JPS Health Network, Medical City Healthcare, and Texas Health Resources — all members of the council — deferred to Love’s statement. 

The executive order also directs the state health commission to report annually to the governor and Texas Legislature all inpatient and emergency care costs for undocumented patients so the state can seek reimbursement from the federal government. 

Abbott said the order is in response to the “Biden-Harris Administration’s reckless open border policies.” 

“Due to President Joe Biden and Vice President Kamala Harris’ open border policies, Texas has had to foot the bill for medical costs for individuals illegally in the state,” Abbott said in a statement. “Texans should not have to shoulder the burden of financially supporting medical care for illegal immigrants.” 

Medical research and law experts spoke with the Fort Worth Report to break down the executive order’s legality and possible effects on patient health outcomes.

Could the executive order violate HIPAA?

Abbott’s action follows a wave of immigration action in Republican-led states. In May 2023, Florida Governor Ron DeSantis signed Senate Bill 1718, an extensive immigration law that included a requirement for hospitals that accept Medicaid to collect information on a patient’s immigration status. 

Lawsuits have been filed to block the Florida law, but most have focused on part of the law that threatens felony charges for people who transport an immigrant who “entered the United States in violation of law and has not been inspected by the federal government since his or her unlawful entry.”

Abbott’s action is anticipated to face similar legal challenges, said Stacey Tovino, associate dean for scholarship and enrichment at the University of Oklahoma College of Law. 

The executive order contradicts previous guidelines from the Texas Department of State Health Services, which advise health care workers not to ask for immigration status information.

“Right now, hospitals don’t ask about patient immigration status as a condition of treatment. Hospitals are required by law to provide life-saving treatment to anyone, regardless of ability to pay or status,” the Texas Hospital Association said in a statement. 

It is also unclear if the executive order violates the Health Insurance Portability and Accountability Act, said Tovino. 

The Health Insurance Portability and Accountability Act, also known as HIPAA, is a federal law passed in 1996 to protect sensitive patient health information from being disclosed without consent or knowledge. The U.S. Department of Health and Human Services established the HIPAA Privacy Rule to implement federal requirements. 

The HIPAA Privacy Rule contains two potentially relevant exceptions permitting hospitals to disclose protected health information without the patient’s prior authorization, said Tovino. 

The first potentially relevant exception is at 45 C.F.R. 164.512(d), which permits a covered hospital to disclose private health information to a “health oversight agency” for activities which includes audits, investigations, inspections, proceedings or licensure or disciplinary actions. 

“Whether the U.S. Department of Health and Human Services would consider the Texas Health and Human Services Commission a health oversight agency in this context is unclear, although the argument certainly could be made,” Tovino said. 

The second potential exception is at 45 C.F.R. 164.512(a). If there is a federal or state law that requires a covered entity to disclose private health information, then it does not violate the HIPAA Privacy Rule, even if the patient’s consent is not obtained. Whether the U.S. Department of Health and Human Services would consider Abbott’s executive order a law or not is unclear at this time, said Tovino. 

“Executive orders are generally considered to have the ‘force of law,’ but they are not ‘the law’ in the same way a statute or regulation is,” she said.

Will the executive order impact patient outcomes?

Luz Maria Garcini, interim director of community and public health with the Kinder Institute for Urban Research at Rice University, said Abbott’s executive order is a “risky move” that is not based on evidence-based science.

The action evokes fear and could result in worsening health outcomes, which costs more to treat than preventive measures, said Garcini. 

“What’s going to happen is it’s going to deter these communities from seeking care, which can create a public health crisis,” she said. “This rhetoric affects the entire Latino community, regardless of immigration status, because then people start being targeted by the way they look.” 

More than 630,000 Hispanic people live in Tarrant County. Texas had an estimated population of 30.5 million people as of July 2023 with 12.1 million of those identifying as Hispanics of any race, followed by 12 million white non-Hispanics, according to The Dallas Morning News. 

There were roughly 1.6 million undocumented immigrants residing in Texas in 2022, according to Pew Research Center. 

“I think we need to continue to find a middle ground, so it’s not all pro-immigrant or anti-immigrant,” said Garcini. “It’s about moving the dialogue forward to find solutions that are best for everybody.” 

Meanwhile, Abbott has faced criticism from conservatives who say the executive order doesn’t go far enough. Julie McCarty, chief executive of the Tarrant County-based conservative activist group True Texas Project, said state officials already know the cost of providing health care to undocumented people is an “astronomical figure.” 

“Is there some illusive magic number we have to reach before Abbott will actually do something about it instead of pretending to care?” McCarty wrote in a Facebook post. “The (executive order) does nothing. Defy the Feds. Close the border. No research needed.”

David Moreno is the health reporter at the Fort Worth Report. Contact him at david.moreno@fortworthreport.org or @davidmreports.

At the Fort Worth Report, news decisions are made independently of our board members and financial supporters. Read more about our editorial independence policy here.