HOW DOES H.R.3733 AFFECT LONG-TERM CARE FACILITIES IN TEXAS?
Updated: Jun 4, 2022
Texas just approved SB25 which establishes essential caregivers as statute and SJR19 which puts a proposition on the November ballot asking voters if essential caregivers should be a constitutional right. Here's how it all fits together.
LET'S TALK ABOUT H.R. 3733 - A FEDERAL ESSENTIAL CAREGIVER BILL
WHAT IT IS - H.R. 3733 is a federal essential caregiver bill that requires facilities to allow each resident up to two essential support persons. Simple, important, and something we should support because not all states have esstial caregiver legislation in place or in progress. It is not something we have discussed in the group up until now and it is a little complicated and the longest post I have ever written so please go grab a cup of coffee or a soda and light snack and meet me back here when you are ready to hang out a few minutes and devote your full attention to this post.
. . . . .I'll wait . . . .
Okay, here we go.
First of all, to be perfectly clear here, This is NOT a Texas piece of legislation and our statutes will change September 1, 2021 no matter what to make essential caregivers law. Your Texas legislators have worked to make sure you get essential caregiver visits in ALL facilities. ALL OF THEM. That’s important and I need you to remember that as this post continues.
WHERE IT CAME FROM - This bill was filed by Rep. Claudia Tenney in NY. She and Representative John Larson of Connecticut are leading the charge for this bill but there are no fewer than a dozen other co-sponsors so far.
While it does have the potential to benefit Texas as an upper layer of law requiring essential caregivers, if the bill does not pass, your rights as Texas essential caregivers are still secure.
WHY DOES TEXAS NEED IT? -Remember, essential caregiver rights are not guaranteed unless voters approve SJR19 (it will eventually have a proposition number) in November because we all know that laws - both state and federal - can be and have been paused. However, H.R. 3733 does have an additional layer of protection for essential caregivers in facilities that accept Medicaid or Medicare funding.
But how? This gets complicated. I mean really, really complicated.
When the President declares a disaster or emergency under the Stafford Act or National Emergencies Act and the HHS Secretary declares a public health emergency under Section 319 of the Public Health Service Act, the Secretary is authorized to take certain actions under section 1135 of the Social Security Act. One of these acts is a temporarily waiver or modification of certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements. Basically, visitation requirements can be waived. We all know that part but we did not all know this is where it came from. This bill amends the Social Security Act so this cannot happen.
While Texas has already passed SB25, the statute securing essential caregivers in our state and SJR19, the joint resolution that will put a proposition on the ballot in November asking voters if essential caregivers should be a constitutional right, there are a great many - no, make that a majority - of states in this country that have not addressed isolation in long-term care facilities.
But, for some reason, the constitutional amendment does not pass in November, we still have our Texas law and the permanent guidelines that HHSC is putting in place. The federal law is added authority and a clear and an unmistakable essential caregiver right for residents. It will also give facilities additional pause before removing an essential caregiver or suspending visitation.
WHY DOES THE COUNTRY NEED IT? - There are some states that addressed isolation with emergency guidelines like we did, some with permanent guidelines, and some that have addressed it with statutes, but the rest rely on facilities to follow CMS (Centers for Medicaid and Medicare Services) guidelines. And, let's face it, if anyone knows what it is like to rely on facilities to learn, stay updated, accept and follow guidelines, it is this group. I am NOT calling all facilities bad actors but we saw rampant non-compliance in our state and there is rampant non-compliance nationwide.
WHO H.R.3373 APPLIES TO - Since assisted living facilities do not follow CMS guidelines, if they have no statute or state guidelines in place, facility policy is the boss. This is a disappointing part of the legislation but I am hopeful that if the bill passes, since nursing facilities and ICFs will be required to admit essential caregivers, those states that have not adopted guidelines or statutes will do that to make sure visitation is equal in assisted living facilities as well.
WHY NOT LEAVE IT TO STATES TO LEGISLATE? - Nationwide, there are facilities with lenient visitation, no visitation, essential caregivers only, window visits or outdoor visits only, twenty minutes once a week if you are vaccinated, one hour outdoors, it’s ALL OVER THE PLACE and unequal restoration of a RIGHT ESTABLISHED BY FEDERAL LAW and violations of ADA. States have had fifteen months to do something and while several have, there is no common, accepted, nationally recognized opposition for a long-term care resident to be forced into isolation.
Federal legislation is needed to provide a common denominator and restore at least an increment of rights across the board in this country the way Texas has for our state.
. . . . okay, this is a good place for a bathroom break . . . .
HOW DOES THIS COMPLICATE THINGS FOR TEXAS? Right now, it won’t. If H.R.3733 is approved as filed, our state law and permanent guidelines fit neatly inside this bill. Nothing changes. If it doesn’t pass, nothing changes. The bill is broadly worded so all states will have the ability to write their own statutes inside the bill. The only potential complication I see is if CMS writes guidelines underneath the bill but at the moment, since essential caregivers are brand new, nobody knows if that is a thing.
THE BILL NEEDS OUR SUPPORT - There are 49 other states in this country and most of them have not had the advocacy and legislative support that residents in Texas have had so clearly, H.R.3733 is more important for those 1.5 million people in long-term care nationwide than our 130,000 or whatever our number is. I would like to see all our Texas representatives sign on to this bill. Representative Lance Gooden has agreed to sign on as a co-sponsor and meet with me in Washington D.C. next week and I have also heard back from Representative Dan Crenshaw's office and am hopeful he will jump on board. Those of you in Representative Rep. Lloyd Doggett's district are particularly important. He chairs the Health Subcommittee of Ways and Means and his support will be critical to this bill.
HOW DOES IT ALL FIT TOGETHER? - No facility in Texas will be able to deny essential caregiver visits by saying they are waiting on corporate or they only follow CMS guidelines. There will be both state and federal law EVEN IF the constitutional amendment does not pass. But like I said before, we need that constitutional amendment because all laws can be paused and nobody gets to push a hold button on the constitution.
Awhile back, I used “The Three Bears” to explain ICF guidelines. This time, it's all facilities. Keep in mind, facility families differ.
The Godfather - Federal Law
Grandfather Bear - CMS
Papa Bear - State Law
Mama Bear - Localized or County Policy
Baby Bear - Facility Policy
Each Texas facility has different rules they must pay attention to:
NURSING HOMES - These facilities obey all the bears but usually don’t have a Mama Bear except under special circumstances like when a county judge issues an order.
INTERMEDIATE CARE FACILITIES - Have a grandpa if they accept Medicaid or Medicare and some have a Mama Bear like SSLCs but most will not except under special circumstances like when a county judge issues an order.
ASSISTED LIVING FACILITIES - You guys only follow Papa Bear and Baby Bear except under special circumstances when Mama Bear shows up like when a county judge issues an order.
WHAT WE NEED TO DO - Ask your Congressional Representatives to support and sign on to this bill. Texas will also need help understanding SJR19 so as soon as we get a proposition number, we will be working to help voters understand it, but for now, you should be making calls and writing emails to your national representatives. Our loved ones in long-term care across the nation are depending on us.
We are Texas. We are big and loud and hard to miss. Let's get to work!