Despite Gov. Greg Abbott’s March announcement that he was “opening Texas 100 percent,” Mary Nichols of Texas Caregivers for Compromise says Texas isn’t fully open because Texans are still restricted from being with their family members in long-term care facilities.

Nichols discusses what the Texas Legislature did about this in the regular session and how concerns about staffing, emergency power, and holding these facilities accountable need to be addressed in upcoming special sessions.

“The governor keeps saying Texas is 100 percent open. It’s like those 120,000 people in long-term care don’t exist,” Nichols told Texas Scorecard. “As long as visitation is still restricted, and as long as people in long-term care still are not fully restored all their rights, then Texas is not fully open.”

She’s referring to Abbott’s executive order, in effect since March 2020, restricting visitations to long-term care facilities. Nichols then noted that Alabama Gov. Kay Ivey (R) set July 6 as their end date for emergency orders. “We don’t have that in Texas just yet.”

Nichols recalls the “extraordinary loss” that resulted from these restrictions. “There was loss for those people who never saw their loved ones again, and there were many of those,” she said. “There’s also another kind of loss, and that is a lot of people, once they did finally get in to see their loved ones, that loved one was not the same person that they left.”

“Part of that is due to the natural progression of their disease, but part of that is also due to those people who suffer from that rapid cognitive decline, that extreme weight loss, and that despondency,” she continued. “Some of them lost that little bit of memory of their loved ones they had left, so once they saw them again, [they] did not know them anymore.”

Despite these restrictions, Nichols said “hundreds of staff members have brought disease into facilities,” noting that many can’t afford to miss work as they are part-time employees without benefits. “We had staff members going to work with symptoms and disguising their symptoms or downplaying their symptoms because it’s necessary for them to survive and to keep food on their table. And that’s how the disease has spread.”

What Did the Legislature Do?

While the Legislature didn’t fully reopen the state, Nichols was mostly pleased with what they did. In particular, she commended State Reps. James Frank (R–Wichita Falls) and Scott Sanford (R–McKinney), and State Sens. Lois Kolkhorst (R–Brenham) and Judith Zaffirini (D–Laredo).

First, Nichols mentioned Kolkhorst’s Senate Joint Resolution 19—a proposed constitutional amendment saying residents of nursing, assisted living, and similar residential facilities have the right to designate an essential caregiver who may not be denied in-person visitation. “The reason that is so incredibly important is because … we have seen all the residents’ rights paused in the last year. We have seen their ADA rights disregarded. If the voters approve this in November, that can’t happen,” Nichols said, adding that she knows of no other state that has a constitutional amendment to defend that right. “It will not protect all their rights, but it will at least protect their right to still have a family unit.”

Nichols also praised Kolkhorst’s Senate Bill 25. “[It’s] a huge victory, although it is indeed an imperfect bill,” she said. “It requires a long-term care facility to allow residents at least one or two support people, and that is a family member, a legal representative, or a friend of their choosing. Or if they can’t choose, their legal representative would do that.” She explains this individual would provide care and emotional support to prevent cognitive decline and help maintain the resident’s overall health. “People are not designed to live alone.”

She said SB 25 also instructs Texas Health and Human Services to create visitation guidelines for facilities to follow “depending on whatever the health emergency is.” Despite Texans having much of this put into place through emergency orders, it still needed to be made into law. “We have had so many facilities who have not felt compelled to follow emergency rules,” Nichols said. “We’ve seen facilities go to extraordinary lengths to keep essential caregivers out, and that still happens today.”

Restrictions on caregivers aren’t compelling after Nichols shared that, since September 24, “in all of our facilities—the 1,220-something nursing facilities and over 2,000 assisted-living facilities—one essential caregiver actually came into a facility and brought disease.”

She also discussed SB 25’s imperfections. “It does allow a facility to remove an essential caregivers’ status if they feel like that person has violated their Infection Control Policy,” Nichols explained. “That’s a flaw because I’ve seen over the last year that a lot of these facility’s Infection Control Policies contradict Texas Health and Human Services guidelines.” She credits her State Rep. Keith Bell (R–Forney) for adding an appeals process.

SB 25 also allows facilities to suspend visitation. “Originally, it couldn’t suspend visitation for more than 14 days in a calendar year, and at the last minute, there was an amendment that changed that to 40 days in a calendar year,” Nichols explained. “The safety net there is that does require Texas Health and Human Services’ approval.”

Despite the flaws, she’s still “impressed” and grateful to legislators for getting these bills passed. But part of another bill they passed—Senate Bill 6—she calls “terrifying.”

“The truly terrifying part of this bill, for us, is what it does for long-term care facilities, because it gives them blanket immunity for any abuse or neglect that occurred during the pandemic,” Nichols said. “All the facility has to do is say, ‘Due to a staff shortage caused by the pandemic, we were short-handed because three of our CNAs were out with COVID, [and] this [incident] occurred.”’

Nichols said examples of such incidents could range from a resident missing a meal, a resident dying due to dehydration, or if a staffer’s criminal background check wasn’t done right and he or she committed a crime against a resident.

“It will also excuse intentional abuse and neglect,” she explained. “It requires evidence that somebody who’s locked out of the facility can’t provide.”

Nichols said the Long-Term Care Ombudsman Program and AARP Texas also brought up these concerns. “It wasn’t just me,” she said. “I’m terrified of this bill for long-term care residents because we did see a lot of abuse and neglect in long-term care facilities over [the] pandemic.”

Special Session

With Gov. Abbott expected to call multiple special sessions this year, Nichols was asked what should be on legislators’ to-do list. She’d like to see Senate Bill 6 amended to clarify that abuse and neglect from daily care are exempted from immunity. “There’s nothing in there to me that makes it clear that long-term care facilities are still required to provide daily care, and there has to be something in there that addresses the fact we can’t provide that exceptional amount of proof if we’re not allowed in there to gather it.”

She’s also concerned about emergency power supplies. “Rolling outages in long-term care facilities are not a good thing if they don’t have reliable backup power, because a lot of these people are on oxygen and … other kinds of devices,” Nichols said. “It’s a scary prospect to have a power outage at a facility if they don’t have reliable backup energy.” Texas Scorecard has previously reported on the vulnerabilities of the state’s power grid.

Staffing at these facilities also needs attention. “We had CARES Act funding that was meant to help add additional staff, but I don’t know if there was any oversight of that. Maybe that’s where the fix needs to be.”

Nichols was asked if the Legislature should fully reopen Texas. “Without a doubt,” she replied. “Family members have vaccinated; residents are vaccinated almost 100 percent in so many facilities.”

“It is time to open long-term care facilities, and it is time to end visitation restrictions,” Nichols added.

Concerned citizens may contact Gov. Abbott, their state senator, and their state representative.

Robert Montoya

Born in Houston, Robert Montoya is an investigative reporter for Texas Scorecard. He believes transparency is the obligation of government.