Lawyer says Proposition 6 could create confusion around assisted living visit rules – State of Reform


Texans are expected 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 Proposed Ballot 6 will decide who has authority in the event the state needs to change the rules regarding in-person visits in the future.

Carmen Tilton is 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 spoke to State of Reform about some of the nuances of SB 25 that are not present in Proposition 6 and what that inconsistency might mean if voters approve it.

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When the Texas Health and Human Services Commission (HHSC) resumed in-person visits in August 2020 after months of a visitation ban, Tilton said many families were engaging in “illegal behavior” during their visits. Since there were so many rules in place around visiting – wearing a mask, only being able to visit for a certain period of time, staff who had to escort visitors to the washroom, etc. some were required to break some of these rules.

Carefully crafted by TALA, Senator Lois Kolkhorst (R – Victoria), Representative James Frank (R – Seymour) and other stakeholders, SB 25 was signed by Governor Greg Abbott in June and sets clear rules for tours and provides advice on how to increase restrictions in the event of a future wave of COVID.

“There are all kinds of temporary and acute cases where it’s not safe for residents to have visitors into the building, and it’s not safe for visitors to try to enter communities… Senate Bill 25 was an attempt to introduce a lot of proper nuance and make sure there was some sort of fine-tuning and trying to balance both the right to a visit but also to recognize that there are those acute moments when there must be a temporary suspension… “

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

She explained that since the most recent laws or regulations on an issue are usually those with ultimate authority, Proposition 6 could potentially trump SB 25. This is a concern, Tilton said, because the SB 25 has specific nuances on establishing visiting guidelines – the result of extensive negotiations within the legislature.

Tilton said the proposal did not contain the same kind of nuance, which she said makes sense for a ballot proposal because their language is generally more straightforward and direct.

Proposal 6 delegates responsibility for making the rules on visit restrictions to the legislature, rather than to the HHSC as SB 25 did. This creates confusion as to who will intervene if the rules visit need to be changed, Tilton said. If the proposal takes precedence and the changes to the rules require an act of the legislature, the implementation of the necessary changes to the visiting rules could take much longer.

Although Tilton made it clear that she was not sure that Proposition 6 would override the provisions of SB 25, she said the uncertainty is nonetheless worth worrying about.

“The concern is that this could create a situation where the proposed vote overrides the nuance that has been worked out in [SB 25]. “


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