Advocate says Proposition 6 could create confusion around visitation rules in assisted living facilities

Texans are set to vote this week on a constitutional amendment guaranteeing the right to have essential caregivers in assisted living facilities. Ahead of the vote, advocates for these facilities are raising questions about how Ballot Proposition 6 will decide who has authority in the event the state needs to change the rules around in-person visitation in the future.

Carmen Tilton is the vice president of public policy at the Texas Assisted Living Association (TALA), which worked with the legislature during this year’s regular session to create Senate Bill 25, a bill that creates the right to have essential caregivers in long-term care facilities. She told State of Reform about some of the nuances from SB 25 that aren’t present in Proposition 6 and what this inconsistency could mean if voters approve it.

 

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When the Texas Health and Human Services Commission (HHSC) resumed in-person visitation in August 2020 after months of visitation prohibitions, Tilton said a lot of families engaged in “rule-breaking behavior” while visiting. Since there were so many rules in place around visitation — mask-wearing, only being able to visit for a certain amount of time, staff members needing to escort visitors to the bathroom, etc. — she said pandemic-weary individuals who missed their loved ones were bound to break some of these rules.

Carefully crafted by TALA, Sen. Lois Kolkhorst (R – Victoria), Rep. James Frank (R – Seymour), and other stakeholders, SB 25 was signed by Gov. Greg Abbott in June and establishes clear rules for visitation and provides guidance on how to increase restrictions in the event of a future COVID surge.

“There’s all sorts of temporary, acute instances where it is not safe for residents to have visitors in the building, and it’s not safe for visitors to be attempting to enter into communities … Senate Bill 25 was an attempt to put in a lot of the appropriate nuance and make sure that there was some kind of fine-tuning and trying to balance both the right to a visitation but also acknowledge that there are these acute times where there needs to be a temporary suspension …“

Kolkhorst and Frank went a step further, however, and created SJR 19 to further protect Texans’ right to in-person visitation. This resolution directs the state to adopt a state constitutional amendment guaranteeing the right. Since amendments to the Texas Constitution require majority approval from Texans, voters will decide on the initiative when ballots are due on Tuesday.

She explained that since the newest laws or regulations on an issue are typically the ones to have ultimate authority, Proposition 6 could potentially override SB 25. This is a concern, Tilton said, because SB 25 has specific nuances about establishing visitation guidance — the result of thorough negotiations in the legislature.

Tilton said the proposition doesn’t have the same kind of nuance embedded into it, which she says makes sense for a ballot proposition, as their language is typically more simple and straightforward. 

Proposition 6 delegates rulemaking responsibility over visitation restrictions to the legislature, rather than to HHSC as SB 25 did. This raises confusion about which entity will intervene if visitation rules need to be changed, Tilton said. If the proposition takes precedence and changes to the rules require an act of the legislature, it could take a lot longer for needed visitation rule changes to be implemented.

While Tilton made clear it’s not certain that Proposition 6 would override SB 25’s provisions, she said the uncertainty nonetheless merits concern.

“The concern is that it could create a situation where the ballot proposition overrides the nuance that was crafted in [SB 25].”