HealthcareStatewide NewsNew Caregiver Protections in Texas Tested by Long-Term Care Facilities Attempting Restrictions

Even with increasing cases of the omicron variant, nursing homes and assisted living facilities cannot unilaterally decide to halt visitation by designated essential caregivers which is now protected by the Texas constitution.
January 5, 2022
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In November, Texas voters overwhelmingly approved a Texas constitutional amendment ensuring that at least one essential caregiver would have access to those residing in nursing homes and other long-term care facilities after families were locked out from visitation for over 200 days in 2020.

Despite the constitutional protection, some nursing homes are telling families that essential caregivers may not visit due to either high positive rates in the county or an outbreak in the facility.

Mary Nichols, who is a leader of Texas Caregivers for Compromise — a group that has been working for the rights of residents and their families during the COVID-19 pandemic—has been helping educate families about how to advocate for their rights to visitation.

“Some facilities are still in a March 2020 mindset,” she told The Texan, but added that facilities now have vaccines and personal protective equipment available along with infection protocols to help prevent the spread of illness.

Nichols has received pleas for help from most areas of the state and from residents of facilities of all sizes.

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The first recommendation she makes to families is to talk to the facility administration and ask them the reason for the limitation on visitors. Nichols also encourages them to help educate the facility about the law and ask if they are staying apprised of updated guidelines and Texas Health and Human Services (HHSC) hosted webinars. 

For example, the Centers for Medicare & Medicaid Services, which provides many regulations to nursing facilities that receive federal funding, clarified in November that, “Facilities must allow indoor visitation at all times and for all residents as permitted under the regulations. While previously acceptable during the [pandemic], facilities can no longer limit the frequency and length of visits for residents, the number of visitors, or require advance scheduling of visits.

If the facility won’t budge on visitation once the family educates it, Nichols suggests they contact the Texas Office of the Long-Term Care Ombusdman. She said many families are unaware this office exists to advocate on behalf of residents and their families at no charge.

Regulations have required the ombudsman contact information to be posted within the facility and in admission paperwork for years, but during the lockdown when families couldn’t enter the facility, they didn’t see the posted information. So new legislation, House Bill 3961, which took effect January 1, requires the facilities to post information about the role of the ombudsman’s office and the telephone number on their website. 

Nichols said that when families reach out to the Office of the Long-Term Care Ombudsman almost all the visitation-related issues are resolved. “Before the lockdown, I had never heard of the ombudsman,” Nichols said. “But the office is a powerful weapon in our arsenal.”

Patty Ducayet, the State Long-Term Care Ombudsman, agreed with Nichols’ advice. 

“It’s important to ask the facility management why visitation is being denied, and to explain that as an essential caregiver you should have access to your loved one,” Ducayet told The Texan.

“It may help to acknowledge that the facility wants to keep residents and staff safe, and that you will follow their instructions about infection control precautions,” she added.

Unfortunately, during the recent holidays when the ombudsman office was closed, many families were kept from visiting their loved ones in long-term care facilities, Nichols added.

Finally, Nichols suggests reporting a facility that is not following visitation requirements to the Texas HHSC for investigation. 

Facilities must apply to HHSC if they want to pause visitation of essential caregivers and HHSC may grant permission for a week-long pause if they find it necessary.

However, in response to The Texan’s inquiry, HHSC said that no facilities had submitted such an application.

“Nursing facilities are required by HHSC rule to allow residents to receive visitors, including essential caregivers, as long as all appropriate health and safety precautions relating to COVID-19 are taken. Nursing facilities also must ensure a resident’s right to communicate with people inside and outside the facility by making a phone or other electronic communication, such as videoconferencing, accessible. The facility also is required to assist residents as needed,” HHSC further explained.

Ducayet added that nursing facilities can change personal protective equipment requirements or suggest outdoor visitation, but this does not change the resident’s right to receive visitors. Assisted living facilities may allow visits to be scheduled during an outbreak of coronavirus, Ducayet said.

Texas Caregivers for Compromise recently developed an educational booklet for families about visitation policies. It can be downloaded from the group’s website for free. Nichols encourages families to print it and keep it with them in a bag or their car so they have access to the most updated guidelines when visiting residents.

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Kim Roberts

Kim Roberts is a reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.