Kansas lawmakers decry federal COVID-19 nursing home visitation rules as 'tyranny'

At least a handful of Republicans want to make such rules toothless.

Titus Wu
Topeka Capital-Journal
A sign turns visitors away May 14 near the entrance to a nursing home. Long-term care facilities across the nation, including Kansas, have had to implement similar no-visitor rules.

When the pandemic was at full force, Kansas Republican lawmakers took aim at Gov. Laura Kelly's COVID-19 emergency orders. Earlier this year, they wrapped in local COVID-19 orders into their target list, portraying the orders as an infringement on individual freedoms.

Limits on both are now Kansas law, but their battle against virus restrictions isn't done. Some are eyeing adult care homes' COVID-19 visitation rules as the next bull's-eye.

"Some of us have family members or friends in health care facilities and have been barred from having personal contact with loved ones, except maybe through a glass barrier," said Rep. Trevor Jacobs, R-Fort Scott. "This is not only an individual liberties issue, but this is a private spiritual issue for many."

More:Kansas 5th slowest state in U.S. on spread of COVID-19 cases

A bill recently heard by legislators would prohibit state and county officials from restricting visitors at county-owned adult care homes to prevent transmission of a disease. Every resident, or his or her legal representative, also would have the right to waive any such restrictions, even those from the federal government.

The impact of Senate Bill 303 is limited, given there are relatively few county-owned nursing homes in Kansas. Nevertheless, politicians used the bill as a platform to denounce visitation rules for all types of eldercare.

"Many elderly people are denied basic human rights of not being allowed to have in-person visits with their loved ones," said Jacobs.

Safety concerns

The pandemic at its earliest stages had spotlighted the contentious nature of visitation rules for the elderly. Statewide and across the nation, nursing homes were hotspots for the virus, and as a result, many homes nearly (if not completely) barred all visitors.

While the action was meant to protect elderly people at higher risk of COVID-19, the ban on visitors also posed for residents an emotional toll, which can exacerbate health issues. A September 2020 survey by the Kansas Long-term Care Ombudsman found many residents felt such.

Read more: Long-term care facilities struggle to balance safety of residents with visitation rights 

“My father has aged tremendously during this lockdown,” said one respondent. “He also is not as cognitive. Says daily he feels like a prisoner.”

Family members aren't just visitors, relatives say, but also advocates for residents in making sure they're well taken care of, and their needs are met. Marilyn Salmans, spouse of former state Sen. Larry Salmans, said issues for her 82-year-old husband worsened without her keeping watch.

"A number of Sen. Salmans’ current issues are hospital-acquired but could have been avoided or lessened by family presence and in-person observation," she said.

The former senator, who was paralyzed, had a minor bedsore that progressed to a Stage 4 wound when it could have been avoided with simple care. In another case, she said she could tell he was distraught over the phone, but she was unable to get any information before being told he was sent to the emergency room.

"If I could just get you to imagine what it's like to be laying on your back with nowhere to move and no way to talk. And then your family can't come and see you," Marilyn Salmans said. "It just seems like cruelty."

Some doubted whether patients received proper care without the constant checking-in by visitors, noting that long-term care facilities are often overburdened and understaffed.

Signs at Aldersgate Village Live Plan Community restrict visitors to certain buildings. To visit a resident, you must be pre-authorized, go through a screening process, and wear a mask and face shield at all times.

Health officials, however, say doing away with all visitation rules would cause more harm than good, and make the fight against any infectious disease difficult.

"This would put the visitor and all individuals who come into contact with them at risk," said Secretary Lee Norman, of the Kansas Department of Health and Environment. "If this outbreak becomes widespread, the impact on local health resources — like doctors’ offices, clinics and hospitals — are threatened and the overall ability for the state to respond is strained."

According to Norman, as of last week, there have been 646 outbreaks, 14,760 cases, 1,237 hospitalizations and 1,887 deaths due to COVID-19 in long-term care facilities. Those deaths attributed for 92% of the overall deaths for outbreaks.

Liability from the federal government

Adult care industry representatives were sympathetic with folks who felt hurt by the strict visitation rules, but they were strongly opposed to the bill. Waiving or ignoring federal requirements could have severe consequences, many said.

For one, federal funding could be lost, said the Kansas Department for Aging and Disability Services. It could spell trouble for county-owned nursing homes that heavily rely on Medicaid, the largest payer in the long-term care setting.

"These are the very programs that nearly all nursing homes in the state rely on for payment for the residents in their care," said Linda MowBray, CEO of the Kansas Health Care Association. "Violating those terms and conditions would force residents from the home and lead ultimately to closure. These homes do not have the authority to ignore CMS requirements."

Nursing homes heavily relying on Medicare or Medicaid have the most to risk for not complying with Centers for Medicare and Medicaid Services rules.

Facilities out of compliance are usually given a chance to correct themselves, but the penalties issued by the Centers for Medicare and Medicaid Services still remain. Allowing residents to waive CMS requirements would prevent that correction from even happening, resulting in more fines or loss of license.

Adult care homes are frustrated with all the federal rules and restrictions, said Rachel Monger, of LeadingAge Kansas, but that funding is needed to survive. A facility's closure can also result in social and economic costs for the surrounding community.

"While nursing home residents are greatly affected by federal CMS regulations, they have no legal standing to waive them," Monger said.

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That didn't stop conservative lawmakers from the desire to make a political point through this legislation.

"When a federal agency dangles funding as a threat, it's time that we as the state legislature step in," said Rep. Tatum Lee-Hahn, R-Ness City. "We give the power to the federal government, not the other way around. The only way that we have to stand against tyranny is to actually take our role of state legislators seriously."

Or to put it more bluntly: "Yes, we do control the federal government," said Sen. Renee Erickson, R-Wichita.

Sen. Kristen O'Shea, R-Topeka, correctly pushed back that neither the state nor local levels have jurisdiction over federal rules. She said a push to change visitation rules should be made on the federal level, not through this state bill.

"We're putting our rural nursing homes as a political football against the federal regulations," O'Shea said. "I'm not willing to gamble our seniors being displaced to the streets to make a point to the federal government."

State Sen. Kristen O'Shea speaks at the Washburn Technology of Institute on Mar. 22, 2021.

Making a point

Currently, Senate Bill 303 (which became House Bill 2062) is heading to the Kansas Senate floor, after a committee pushed it out last minute. 

While the legislation's chances with the adult care industry's opposition remain unclear, it seems to be a personal and passionate issue for a handful of legislators who are sure to try to keep options as open as possible.

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For them, the restriction on visitors is indeed an infringement on individual freedoms, liberties and quality of life. Two lawmakers, in written testimony, even included Holocaust-related quotes, inviting a comparison between the genocide and the countless seniors stuck at nursing homes amid a pandemic.

In short, it's a hill some are willing to die on.

"They want to close down nursing homes because we're not letting family in?" Erickson said. "I'll take that fight. I'll take that fight any day of the week."