Families sue Gov. Abbott, claim Texas is ‘violating constitutional rights’ of nursing home residents

Nursing Home Investigations

ROUND ROCK, Texas (KXAN) — Marcy Renneberg spent weeks grieving the death of her father. She would like to sit with her mother to help her process their loss, but isn’t allowed due to state restrictions. That’s why Renneberg said she filed a lawsuit.

“We still had memories to make that were stolen from us,” she said, blaming the state of Texas as the thief.

After COVID-19 began to spread across the state back in mid-March, Gov. Greg Abbott issued a disaster declaration, and the Texas Health and Human Services Commission (HHSC) restricted access to vulnerable long-term care facilities — banning any non-essential visitors, including family members.

INVESTIGATIONS: See KXAN’s continuing coverage of coronavirus in Texas nursing homes

In the court documents filed this week, Renneberg and another family claim the governor, HHSC and the individual nursing homes are “violating constitutional and statutory rights” of the residents and their loved ones by “prohibiting essential family visitors, damaging the health of residents in these facilities, and costing precious time to the residents and their families.”

Renneberg said her father remained healthy for four months after the pandemic began, but he ultimately tested positive for the virus and later died.

“To know they’ve suffered months of cruel isolation, and you’ve had your heart ripped out? It’s a tormenting process that you weren’t able to be there with them for their last months. Their last months,” she cried. “The government has taken that away from us. The government is the one that’s responsible for the cruelty to my family.”

Her attorney, Warren Norred, said they are concerned about how long these restrictions have been in place.

“We wouldn’t have filed this a day into this or a week into this,” Norred said. “We’ve had multiple plaintiffs die and pass away while we are trying to find some remedy for them.”

He argued there should be a special session of the Texas legislature called in order to “suspend laws” for this long, and there is “no oversight” to the governor’s actions.

The lawsuit also invokes the Americans with Disabilities Act and the Texas Human Resources Code, which states, “An elderly individual is entitled to privacy while attending to personal needs and a private place for receiving visitors… This right applies to medical treatment, written communications, telephone conversations, meeting with family, and access to resident councils.”

The court documents state, “The Governor is impeding this right and is suspending this portion of the law without authority.”

When are nursing home visits allowed?

Marcy Renneberg remembers the last time she spoke to her father, through the window of the nursing home. She chooses not to remind her mother, who has dementia, that Roland is no longer alive.

“I want to help my mother. I want to comfort her. I want to be there for her,” Renneberg said. “That’s my responsibility. I’m her medical power of attorney. I’m being denied what I think is my legal responsibility.”

After nearly six months of separation, certain nursing homes meeting a list of criteria were allowed to apply for limited visitation in early August.

All long-term care facilities must report no confirmed positive COVID-19 cases in staff in the last 14 days and no active positive cases in residents before qualifying. Skilled nursing facilities, specifically, are only allowed to conduct outdoor visits and must administer tests to staff on a weekly basis.

KXAN Investigators obtained data showing only 57 of the state’s more than 1,200 licensed nursing homes have applied for visits. So far 36 facilities have been approved, while six facilities were denied. Eight applications were still pending. Seven facilities were approved for visits at one point, but they have had their visitation approvals rescinded.

Meanwhile, the data shows 881 of the more than 2,000 assisted living facilities in the state have applied for visits. Assisted living applicants were more likely to be approved — with 772 facilities allowed visitation. Twenty-one assisted living facilities have been denied. Sixty applications were still pending. Twenty-eight homes had their visitation approvals rescinded.

Nearly all of the more than 100 intermediate care facilities applications were approved. According to the state, these facilities serve people with intellectual disabilities.

Norred feels these Phase I allowances were implemented so that the state can “say they are doing something, but you are really not.”

Meanwhile, in a virtual panel hosted this week by state Sen. Judith Zaffirini, representatives from HHSC said the slow reintegration of visitors is necessary to keep these vulnerable residents safe.

“We were monitoring and trying to get enough information about the impact of visitation,” said Victoria Ford, HHSC’s Chief Policy and Regulatory Officer.

Ford noted they are expecting the governor to direct their agency to develop Phase II guidelines soon. In the meantime, they are evaluating what other states have done, including expanding outdoor visits, allowing indoor visits with plexiglass barriers or adopting an “essential family caregiver plan.”

IN-DEPTH: Texas families fight for access to long-term care facilities with ‘Essential Family Caregiver’ plan

“That could allow for physical touch and contact for individuals who could have some training before they are interacting with their loved one,” Ford said. “We have even also been investigating allowing personal care services such as a hair salon or barber to open back up [for residents].”

She said they have been communicating with the governor’s office on their research.

HHSC declined to comment on the pending lawsuit, but a spokesperson for the commission said in part, “Our top priority remains the health and safety of residents and staff in the facilities we regulate and we are continually assessing how to keep them safe. We understand the hardship and isolation that many families have endured during the COVID-19 pandemic. We’re working toward reuniting families as safely and as quickly as possible.”

The Governor’s office has yet to respond to our request for comment.

Renneberg said these developments are moving “too slow” and coming “too little, too late” for her father. She said the lawsuit is for her mother.

“I want to be able to help her have what little bit of life that she has left,” she said.

Copyright 2020 Nexstar Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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