AUSTIN (KXAN) — After the last legislative session, Mary Nichols thought she was done driving 200 miles from the Dallas-area town of Forney to the Texas State Capitol to advocate for residents in nursing and assisted living facilities.

After the doors of her mother’s nursing home closed in 2020 and the state suspended visitation to prevent the spread of COVID-19, she formed the group Texas Caregivers for Compromise. She worked with lawmakers to help pass a law giving Texans the constitutional right to an “essential caregiver.”

However, she said, the group’s work is far from over.

“There are other issues related to long-term care, resident rights, that have come up — that we’ve just not been able to walk away from,” she said. “There aren’t many people out there advocating for residents.”

She’s watching two pending bills inch toward passage that could have major impacts on people living in these kinds of long-term care facilities.

One bill backed by resident advocates would require a significant portion of Medicaid money be spent directly on resident care and require more transparent reporting about facility ownership. Another bill largely backed by industry groups would redefine rules governing the long-term care ombudsman’s office, which advocates for resident rights.

‘Transparency and accountability’

Senate Bill 1629, by Sen. Lois Kolkhorst, R-Brenham, would “improve nursing care by increasing transparency and accountability for nursing homes participating in the Medicaid program,” according to a statement by Kolkhorst in a Senate Research Center analysis. Kolkhorst chairs the Senate Health and Human Services Committee.

Her bill would require nursing facilities reimbursed through Medicaid to disclose their ownership structure. Kolkhorst said her constituents described how difficult it could often be to figure out who actually owned the facilities where their loved ones lived.

“They would go on the website, and, you know, and they were trying to just find if they could write the owner, or they could write someone that was not just in middle management,” Kolkhorst said. “Owners should want some transparency there. You would want to know if something was going on in your facility that … should be brought to your attention.”

The legislation would also establish a “direct care expense ratio” to ensure 80% of Medicaid reimbursement money is spent on resident care, according to a bill analysis. The legislation authorizes the Texas Health and Human Services Commission to recoup “all or part of the reimbursement amounts paid to a nursing facility that are subject to the direct care expense ratio … if the facility fails to spend the reimbursement amounts in accordance with the direct care expense ratio,” according to the analysis.

Kolkhorst describes it as performance- or outcome-based funding. Texas has some of the lowest-rated nursing facilities of any state in the country by federal standards, she pointed out.

“It gives an insurance to the people that are putting their loved ones in these facilities and the insurance to the taxpayer that these dollars are going to the care of these residents — and not to a private equity partner in Boca Raton,” Kolkhorst said.

In Texas, nearly one-third of the state’s nursing facilities are owned by private companies, such as limited liability companies (LLC) or for-profit companies. More than half of nursing homes in the state are owned by local government entities like hospital districts or authorities, cities or counties, according to HHSC data.

Representatives of the state Office of the Long-Term Care Ombudsman, AARP Texas, Alzheimer’s Association and citizen-advocacy group Texas Watch registered in favor of the legislation at an April 5 hearing, and no one registered against the bill.

Kolkhorst’s bill passed the Senate in April. The House Human Services Committee heard testimony on May 10, including testimony from Eddie Parades, a nursing home provider and representative of the Coalition of Nursing Home Providers, which includes 600 nursing homes.

“Besides our funding for this session, this is the most important bill that impacts the industry,” Parades said.

Parades said his organization members are OK with the bill’s ownership reporting requirements, but they are “greatly concerned” about the implementation of the Medicaid spending ratio. He said the ratio is a one-size-fits-all rule that would not factor in the wide differences in business structures between small and large facilities. He also expressed concern about rules that would allow the state to recoup reimbursements from providers that failed to meet the ratio. In addition, he said capital expenditures — such as new beds or walk-in freezers — should be counted in the ratio.

In an interview with KXAN, Kolkhorst said she understood capital improvements were a “real concern” for the industry and acknowledged there may still be negotiations on this point.

“We want good buildings, you know, we want the roof to be fixed,” she said. “I think that’s where some of the money’s being peeled off and not being invested into quality workforce. Because how do you define that?”

Parades said he was in talks with Kolkhorst about the possibility of reducing the direct care spending mandate outlined in the bill from 80% to 70%.

“This one-size-fits-all mandate is difficult,” Parades said. “Those two things actually would make this bill acceptable.”

Parades said a similar bill passed in New York has been tied up in the courts after 150 providers sued over its legality.

Rep. James Frank, R-Wichita Falls, chair of the House Human Services Committee, said he didn’t think reducing the spending mandate to 70% and including “debt-service for capital” improvements would both be changed. Perhaps, Frank said, one or the other.

Frank said a big issue is that some nursing homes owned by larger companies are “playing some financial games” and “a lot of the money is getting siphoned off and not going to direct patient care.”

Kolkhorst’s bill was left pending in the House committee after the public hearing.

‘Certain excesses’

Another bill passing through the Capitol, HB 4220, by Rep. Travis Clardy, R-Nacogdoches, would refine rules governing the Long-Term Care Ombudsman program — including how the office would be trained, address complaints and access resident records.

Ombudsman staff and volunteers “help protect the quality of life and quality of care of anybody who lives in a nursing facility or an assisted living facility,” according to the program’s website.

Clardy said he was interested in filing the bill after hearing reports of “certain excesses that were occurring with the ombudsmen showing up at facilities and really taking some liberties.”

“I’m here as a — as an absolute believer in the ombudsman. But, that said, because you’re dealing with volunteers, I think perhaps some of the training hasn’t been as intense as it should be,” Clardy said in an interview with KXAN. “There were several complaints that have come out of the ombudsman being, perhaps, overzealous.”

Under Clardy’s bill, the ombudsman would be able to access a resident patient’s care records only if they obtained informed consent from the appropriate parties. The ombudsman would also have to provide a facility under investigation with documentation showing they were entitled to patient care records, according to a legislative analysis.

Clardy said those provisions would stop the ombudsman from investigating issues outside the scope of a specific resident’s complaint, and it would shield the protected private medical information of other residents.

KXAN asked Clardy if the bill would limit the ombudsman’s access during an investigation. Clardy said the bill would not limit the ombudsman from doing their job. However, he said, doing an investigation is “really not their job.” Texas already has the Health and Human Services Commission — with its surveyors and investigators — to regulate and investigate long-term care facilities, he said.

“That’s not the role of the Ombudsman. They’re not there as the ‘investigators.’ They’re not there to be amateur sleuths. They’re there to provide support,” Clardy said. “What we’ve tried to do is say, ‘let’s make sure the ombudsmen know their role.’”

Weakening the ombudsman?

According to federal regulations, the first of several “functions” of State Long-Term Care Ombudsman offices is to “identify, investigate, and resolve complaints … made by, or on behalf of, residents.”

“The Long-term Care Ombudsman program has a pretty broad set of responsibilities, but top of that list is hearing from residents, investigating and working to resolve their concerns,” said Patty Ducayet, the head of the Texas Long-Term Care Ombudsman program. “It is improper and inaccurate to describe us as not conducting investigations. We are different from [HHSC] long-term care regulation, but we are charged with protecting the health, safety, welfare and rights of residents — and we’re going to continue to do that because residents deserve good care every day, in every facility. And it’s our job to help them.”

The ombudsman’s office is aided by 100 full-time staff and 300 volunteers, according to the bill analysis.

Though Clardy said the efforts by the ombudsman’s office that drew concern were done in good faith and not egregious, he said he felt there needs to be “clear lines and delineation where our state law comports with federal law and to make sure that our ombudsmen were trained to know what was appropriate.”

Ducayet said she is confident her office was already in compliance with federal statutes and regulations.

Those registered against Clardy’s bill mostly represented nonprofits groups and others advocating on behalf of residents and the elderly, such as the Office of the State Long-Term Care Ombudsman, AARP Texas, Arc of Texas, Disability Rights Texas and Texas Caregivers for Compromise, according to legislative records. Critics of the bill generally disagreed with Clardy’s assessment and said the bill would strip power from one of the few advocates for long-term care residents.

Greg Shelley, managing local ombudsman for the Harris County Long-Term Care Ombudsman Program, was one of dozens of individuals who submitted public comments to the House Committee on Human Services in April. Shelley said he opposes Clardy’s bill because it would limit the ombudsman program’s ability to resolve complaints without the assistance HHSC’s long-term care regulators, which are “already stressed for resources.”

The bill “weakens what has long been one of the few effective consumer protections for residents of assisted living facilities and nursing homes,” according to Shelley’s public comment. “HB 4220 would likely have no positive impact on long-term care providers’ ability to operate successfully. On the other hand, it will likely have a negative impact on the dignity and respect of the residents and their ability to get information related to their own care.”

Shelley’s comments were included in a 21-page compilation of public comments. The compilation contained 85 comments — 82 of the commenters opposed the bill. Three of the 85 comments were in favor of the bill, including two written by operators of long-term care facilities.

Legislative records show most of the support for Clardy’s bill comes from long-term care industry groups. For example, a witness list from an April committee hearing on the bill shows representatives of the Texas Assisted Living Association, Texas Health Care Association, Cascade Health Services, HMG Healthcare and LeadingAge Texas all registered in favor of the bill.

Some supporters expressed concern about the ombudsman understanding the regulatory differences between assisted living communities and nursing homes.

“Long-Term Care Ombudsmen are phenomenal resources for families, residents and long-term care providers,” the Texas Assisted Living Association wrote in a statement to KXAN. “This bill strengthens the program by providing families and residents with additional information about the Texas LTC Ombudsman, ensures that sensitive health care and financial information are handled with appropriate safeguards, and creates consistency by adopting the program’s federal rules regarding access to records and documents.”

An amendment to relieve concerns from AARP by Rep. Senfronia Thompson, D-Houston, struck language from the bill that barred ombudsmen from accessing documents obtained through litigation.

Tina Tran, the state director of AARP Texas, said the group has major concerns about the bill — even in its amended form — and still does not support its passage.

“For the safety and wellbeing of Texas’ most-vulnerable population, it’s vital that this program remain intact and ombudsmen are allowed to work freely in addressing the concerns of residents and their families,” she wrote in a statement to KXAN.

An advocate for residents

Language remaining in Clardy’s bill also requires certain ombudsman training and require the ombudsman’s office to put an explanation in each of its publications clarifying its role as an advocate for residents and saying its positions on policy and opinions “do not necessarily represent” the positions of HHSC, according to a House bill analysis.  

Mary Nichols, with Texas Caregivers for Compromise, expressed concern about a chilling effect on the ombudsman’s office staff and volunteers.

“Residents have had no voice in this whole House Bill 4220 process because it is the ombudsman that are their voice. So when … it is the ombudsman program that is being amended, there’s no voice for the residents.”

Another Texas Caregivers for Compromise member, Genny Lutzel, detailed several times when an ombudsman helped her family with concerns about negligence, retaliation and visitation rights for her mother, who lived in long-term care facilities for more than 10 years.

“This is clearly a tactic to muzzle the one and only advocate for residents by asking them to defend their very purpose — to support residents’ rights,” Lutzel wrote to lawmakers in a public comment on the bill.

KXAN asked Clardy about the pushback his bill has received from families and patient advocates.

“I will look you in the eye and tell you that this is a good bill for patient advocacy, for patient safety. This is going to promote a better environment, and it’s better. It’s going to give comfort to people that we’re going to know, ‘Who was there? What were they looking at?’ And that would give me comfort,” he said.

He also told KXAN the ombudsman’s office has his “absolute support,” and “last thing we want to do is chill these people that really are committed to making the elderly’s lives better and want to serve in a volunteer capacity. And my hat’s off to them.”

The amended version of the bill passed out of the House on third reading on Friday. It has not been sent to the Senate or its committees for consideration.