Federal strings attached to nursing home funding required Kansas long-term facilities to shutter residents and lock visitors out during the pandemic. Through impassioned testimony on Monday, families of those in nursing homes asked lawmakers to prohibit county-owned nursing homes from restricting visitors, despite federal guidelines.
Guidance from the Centers for Disease Control, Centers for Medicaid and Medicare Services (CMS) requirements and Gov. Laura Kelly’s executive orders closed nursing homes to most visitors for more than a year. In support of Senate bill 303, families of nursing home patients related to the Kansas Senate Public Health and Welfare committee the cruelties wrought by mandated isolation.
Sen. Alicia Straub, an Ellinwood Republican, said the committee should note that those opposing the legislation are bureaucrats and unelected officials.
“I don’t believe you will see any written opposition to this bill from individuals who this has directly affected,” Straub said.
Proponents say lockdowns damaged patients’ health, wellbeing
Marilyn Salmans, Hanston, said the lockdown damaged the health and wellbeing of nursing home residents. Salmans is the wife of former state Sen. Larry Salmans, who served in the Kansas Legislature from 1996 t0 2004. The Hanston Republican acquired neuroinvasive West Nile Virus last fall. Unable to walk and talk, Salmans entered a series of nursing homes and hospitals. Although his family committed to advocating for him, COVID-related rules prevented his wife and children from visiting and ensuring he received quality care, Marilyn told the committee.
“A number of his current issues are hospital-acquired but could have been avoided or lessened by family presence and in-person observation,” she told committee members.
For example, he suffered a minor bedsore that progressed to a stage 4 wound.
“We understand that this could have been avoided by the facility turning him over every two hours, as was the standard of care, but we were unable to observe whether this was their practice or not,” she said.
During the hearing, family members described facilities that prohibited staff from grooming patients. Meanwhile, lockdowns prevented family members from providing basic care like shaving, nail trimming, and removing ear wax. Others testified that some homes allowed family members to stand outside windows and talk with patients via cellphone. Other facilities allowed FaceTime. Still others limited all access.
Homes drug patients for not following instructions, proponent says
Michelle Suter, Leawood, said her father went to the hospital for a cracked rib, but hospital officials admitted and isolated him after he tested positive for COVID. The hospital sent her father to a rehabilitation facility that prevented family visits. Suter’s father died a month later, and she believes many of his symptoms can be traced to psychiatric drugs given to him.
“Because, as their records show, he was not ‘following directions,’” Suter said.
Her father suffered from profound hearing loss and could not communicate with his nursing home caregivers. Though he excelled at lip-reading, his caregivers wore masks.
“You can’t follow directions or respond when you can’t hear,” Suter said.
Kim Eastman, Olathe, said her mother’s health significantly declined.
“My mother has lost over 20 pounds this past year. Now she is just skin and bones,” Eastman said. “ I was not able to see that she had been barely eating for months. She has lost all muscles and is extremely weak due to sitting in her chair or her bed for days on end with no socialization.”
Eastman said at one point, her mother said she would rather die than continue to live in isolation.
“This visitation restriction was to keep residents from dying, but succeeded in only keeping them alive, while preventing them from actually living a meaningful life,” Eastman said.
Restrictions locked out pastors, ministers
Lockdowns damaged residents’ physical health, but patients also suffered mentally, emotionally, and spiritually from the isolation, Rep. Trevor Jacobs, a Fort Scott Republican, said.
“This is not only an individual liberties issue, but this is a private spiritual issue for many,” he told the committee.
For the last 9 years, Jacobs said he’s sat beside many nursing home patients, singing to them, holding their hands, and reading the Bible to them as they drew their last breaths.
“It has been a year since the COVID-19 Kansas shutdowns and lockdowns and still many elderly people are denied basic human rights of not being allowed to have in-person visits with loved ones and pastors,” Jacobs said.
Rural facilities risk federal funding
Many Kansas nursing homes are privately owned. SB 303 solely applies to county-owned homes and hospitals. Most of Kansas’s 32 county-owned facilities are sprinkled throughout rural communities where it’s difficult to incentivize private investment in smaller nursing homes. Local taxpayers provide some money to operate the facilities. But the federal government, through Medicaid and Medicare, provides most funding to these homes.
“These are the very programs that nearly all nursing homes in the state rely on for the payment for residents in their care. Violating those terms and conditions would force residents from the home and lead ultimately to closure,” Linda MowBray, President of the Kansas Health Care Association and the Kansas Center for Assisted Living said.
Sen. Kristen O’Shea, a Topeka Republican, asked proponents why they didn’t remove their family members from long-term care facilities during the pandemic.
One proponent said it wasn’t financially viable. After the hearing, Erin Salmans, Salmans’ daughter-in-law, said that’s not an option for many in rural Kansas.
“Dad is on a ventilator. We could not have him on a ventilator if we took him home, that would be to rural Kansas… There are dirt roads in this town. There are no stoplights.”
And, she said, the nearest hospital is miles away.
Distance a problem when nursing homes close
Rachel Monger, vice president of Leading Age Kansas, said the distance to the next-available facility is one reason to kill the proposal. She warned that federal government fines and eventually closes nursing homes that fail to comply with their guidelines.
“When a nursing home in a rural area closes, it can be devastating for residents and their families,” she said. “The next closest provider is likely many miles away. It means further isolation of seniors because they must leave a community they are deeply connected to. Their family and friends are much less available, and it is less likely someone will be there to advocate for the resident’s needs. It is especially hard on an older spouse who cannot drive longer distances and must rely on others to take them to the nursing home for visits.”
MowBray said her heart goes out to long-term care facility residents and their families.
“I am at a loss for a strong enough adjective to describe the loss and grief so many have experienced since March,” she said. “The loneliness, isolation, and disruption in routine was unquantifiable for residents, family and staff alike.”
Still, she asked lawmakers to reject the legislation.
“It will jeopardize county-owned homes providing care to the very residents that the proponents of this bill hoped to protect,” she said.
Monger called barring visitors a “cruelty.” However, she too opposed the Senate proposal.
“We respect the intentions behind Senate Bill 303. However, the reality that our providers must operate under means that we must strongly oppose its passage,” she said. “Complying with SB 303 would force our county-owned nursing homes to violate federal nursing home regulations, and no county-owned nursing home could survive the devastating penalties that would result from it.”
Nursing homes closed to most visitors for more than a year
Most Kansas nursing homes closed their doors to family visits last March. CMS ordered nursing homes into lockdown beginning on March 13, 2020. Not only did the guidelines prohibit outside visitors, but CMS orders also ceased communal dining and group activities, and required enforced social distancing.
“In many instances, this meant confining residents to their rooms,” Monger told the committee.
The guidelines allowed for compassionate care visits for patients on the brink of death.
“Even then, physical touching and room visits were strongly discouraged by CMS,” Monger said.
Throughout the spring and summer, CMS softened restrictions, allowing outdoor visitation. Guests visited indoors in homes without COVID-19 infections within the last 14 days where community positivity rates stayed below 10%.
By fall, however, colder weather and increased positivity rates meant most homes prohibiting visitors.
“It has only been in the last month that vaccinations have increased enough and county positivity rates have decreased enough for nursing homes to open their doors again,” Monger said.
CMS updated its guidelines on March 10 of this year, finally allowing residents to hug. State officials announced new recommendations for long-term care facility visitation on March 16. Indoor visits are allowed, though residents must be fully vaccinated in order to have physical contact with their visitors.
However, proponents of SB 303 want to ensure complete nursing home lockdowns never happen again.
Legislation passes out of committee
A divided committee forwarded the legislation to the Senate for full consideration. Most agreed advocates for the elderly need to push back against federal nursing home regulations. However, they disagreed on how to best do so.
Sen. Mike Thompson, a Shawnee Republican, said the state affirms individual rights via the proposal.
“Should we not correct our federal government and tell them, wait a second? If we don’t take a stand and tell them they’re wrong and show them they’re wrong, this is going to continue in perpetuity,” he said. “I do not see the logic in any of this. Who do we cave to? The federal government? Or the individual?”
Monger said her members agree with the sentiment behind Senate Bill 303.
“I think our ask is that we find a way to push back on the federal government, we find a way to try and fix this… without putting rural homes at such great risk,” she said.
Advocacy groups pushed very hard to see restrictions lifted as soon as possible, according to Monger. They demanded loosened rules once the vaccines rolled out.
“At that point, it was ridiculous that we still had the same restrictions in place,” Monger said.
Lawmakers balance individual rights against federal dollars
O’Shea voted against forwarding the proposal, though she said the isolation caused more damage than COVID.
“We’re using our rural nursing homes as a political football against federal regulations,” she said. “I think this bill will shut down homes. I am not willing to gamble our seniors being displaced to the streets…If you are willing to gamble that, you would have taken your loved ones out of the home.”
Rep. Tatum Lee Hahn, a Ness City Republican, told the committee that civil liberties and the Constitution don’t evaporate during a pandemic.
“When a federal agency dangles funding as a threat, it’s time that we as a legislature step in and exercise our 10th Amendment rights,” she said.
The hearing served as a warning to lawmakers who favor taking federal funding with strings attached, according to Sen. Richard Hilderbrand, a Galena Republican and chair of the Senate Health and Public Welfare Committee.
“If anything, from the passion in this hearing, we have to come to the realization that whenever a state accepts federal dollars, we are giving up our authority as a state and ceding it to the federal government to pull whatever strings they want,” he said. “Let that be a caution to you as you vote on future bills that accept federal dollars.”