Nursing home-visitation bill addresses a real problem in a problematic way

Allowing visitation, no matter what, isn’t the solution

Deborah Trigueiro (R) greets her husband Douglas Smith, with a big hug from across the table at the Life Care Center of Kirkland on August 24, 2020 in Kirkland, Washington. This was only the second time they had seen each other in person since February when the coronavirus (COVID-19) raced through the facility. Prior to their first visit the week before they had had to talk through the window on a phone. The families cannot touch, must visit outside and stay socially distant. The Life Care Center of Kirkland, a nursing home, was an early epicenter for coronavirus outbreaks in the U.S. (Photo by Karen Ducey/Getty Images)

Hours before my mother died I spoonfed her vanilla ice cream. Sprinkled into the dessert was a vitamin she’d been refusing to take. But I pleaded with her. I asked her to please take it — if only for me — and though she had stopped opening her mouth to talk, she eventually opened up and swallowed as a final show of love.  

I wasn’t there during the 2 a.m. hour when she breathed her last breath, but my aunt was holding her hand. After not being present for her parents’ final moments, she said later, she considered it a blessing that she could be a comforting presence for her baby sister.

For the greater part of 2020, tender deathbed moments such as those were nearly eliminated across the state, across the country, across the world. Hospitals and nursing homes mostly banned visitors from their facilities to prevent the novel coronavirus from spreading throughout their facilities. As a result, terminal patients — whether they were suffering from COVID-19 or something else — were dying alone, leaving their loved ones to not only deal with the grief of losing them but also with the guilt of not having been by their side.

There’s no reason to doubt state Rep. Tony Bacala’s Tuesday testimony to the Louisiana  House Health and Welfare Committee that he’s received many calls this year from people upset that they’ve been kept from their loved ones’ bedside. Bacala, a Prairieville Republican, said he suspects that people have called his colleagues with similar complaints.

But Bacala admitted that the legislation he introduced to give nursing home patients an ironclad right to receive as many family members as they want even in the midst of a public health crisis wasn’t thought out and that he would have had more time to get it right if he had introduced it during the regular session next year. He still asked for an up and down vote, though, and committee members were only able to persuade him to defer his bill by promising to give it another hearing next week.

Unlike so many other bills Louisiana’s Republicans have introduced during this hastily called special session, Bacala’s legislation actually attempts to address human suffering. Real suffering. Not the let-down that comes from seeing one’s favorite bar locked tight or the fogging-up of eyeglasses that comes with wearing a properly fitted face mask. But real suffering: the kind of bone-deep sorrow that follows not being there for loved ones at the moment that they might be most afraid.

Even though it’s meant to address very real suffering, Bacala’s bill is still another Republican attempt to weaken the governor’s authority.

Given how sympathetic everybody is to people who’ve been kept away from their dying loved ones, the amount of resistance to Bacala’s bill was remarkable. As written, his bill says nursing homes “shall allow in-person access to the resident” from anybody on a list that includes “immediate family members, other relatives of the resident, and the resident’s clergy,” as long as the resident desires the visit.

The right for nursing home residents to receive visitors is already in the state’s “Residents’ Bill of Rights,” but Bacala’s measure would add that “no right enumerated therein may be waived for any reason whatsoever.”  Specifically, the bill says, “No provision of the Louisiana Homeland Security and Emergency Assistance and Disaster Act … the Louisiana Health Emergency Powers Act … or any other law or regulation shall be construed to limit a resident’s right to have access to in-person visitation.”

Rep. Travis Johnson, D-Vidalia, who said he wanted to support something that would allow visitation, pointed out that if an Ebola-like disease with more than a 50 percent mortality rate arrived in Louisiana, Bacala’s bill would mean that nursing homes, even then, would have to let visitors in.

Bacala’s decision to include “other relatives of the resident” beyond the immediate family also raised eyebrows on the committee.

Bacala’s bill appears to be based on the premise that state law is all that matters. But Mark Berger, executive director of the Louisiana Nursing Home Association, said that guidelines about how to protect nursing home residents during a pandemic come from the Centers for Medicare & Medicaid Services, a federal agency. During the coronavirus pandemic, CMS uses the percentage of people testing positive in an area to determine if nursing home residents should have visitors.

When CMS announced on Sept. 17 that nursing homes in areas where the rate of disease is low enough could allow outdoor socially-distanced visitation, Louisiana immediately implemented that change. “We know these past several months have been tough, especially for our nursing home residents and their loved ones,” Gov. John Bel Edwards said then.

Despite the obvious problems with Bacala’s legislation, Berger appeared to be trying not to offend anybody with his answers Wednesday.  When Rep. Johnson said it sounded like the nursing home association didn’t support Bacala’s bill, Berger responded, “We don’t support it, but we’re not opposed to it.”  Johnson’s confusion showed on his face, and Berger said, “I’m sorry. We have concerns, but we want visitation.”

Everybody wants visitation, but everybody should be concerned about a bill that would have the Louisiana Legislature setting visitation policy for society’s most vulnerable residents. If Bacala’s bill hasn’t been fundamentally improved when it’s heard again next week, then the members of the committee need to make sure that their skepticism translates into opposition and that they vote their colleague’s bill down.

If the state’s lawmakers want their constituents to be able to say their tearful goodbyes to their dying loved ones, then the way to get there isn’t to create laws that override commonsense health restrictions. The way to get there is to follow those restrictions and arrest the spread of the disease.

May we all have those beautiful and touching goodbyes with the ones we love. But not in the way that imperils others, and not in a way that leaves even more death in its wake.

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