Constitutional amendment establishing a right to a designated essential caregiver will be on the November ballot in Texas

On May 27, the Texas State Legislature voted to refer a constitutional amendment to the ballot that would provide residents of nursing facilities, assisted living facilities, and state-supported living centers with a right to designate an essential caregiver who may not be prohibited from visiting the resident. It would also authorize the Texas State Legislature to pass guidelines for facilities to establish visitation policies and procedures for essential caregivers.

Senate Bill 25, the implementing legislation for the amendment, was approved in the last few days of the 2021 legislative session. SB 25 requires the executive commissioner of the Health and Human Services Commission to develop guidelines for the visitation policy of designated essential caregivers. The guidelines are required to include a visitation schedule, a minimum duration for visitation, physical contact between caregiver and the resident, and rules on safety protocols including a signature that a caregiver will comply with all protocols. 

The bill would also allow the facility to revoke the designation of the caregiver if the caregiver does not follow the protocols. The resident would be allowed to immediately designate a new essential caregiver. SB 25 would also allow nursing facilities to petition the Health and Human Services Commission to suspend visitation for an initial seven days and up to 14 days in a year if there is a health risk. The commission would be allowed to deny the petition if they disagree with there being a health risk. The law was designed to take effect on September 1, 2021.

State Sen. Lois Kolkhorst (R) said, “Visiting a loved one in a nursing home should be a right, not a privilege. If another health emergency occurs, our state’s caregivers will always have a way to safely go inside a facility for scheduled visits and ensure that their loved one’s physical, social, and emotional needs are being met.”

To put a legislatively referred constitutional amendment before voters, a two-thirds (66.67%) supermajority vote is required in both the Texas State Senate and the Texas House of Representatives.

This amendment was introduced as Senate Joint Resolution 19 (SJR 19) on March 3. On March 17, the state Senate passed SJR 19 in a vote of 29-0 with two absent. The House passed an amended version of SJR 19 on May 24, by a vote of 142-1 with seven not voting or not present. On May 27, the Senate concurred with the House amendments.

The amendment is the second referred to the Texas ballot that is related to policies put in place during the coronavirus pandemic. The legislature also voted to refer an amendment that would prohibit the state or any political subdivision from limiting religious services or organizations. 

As of May 28, Ballotpedia has identified 11 ballot measures certified for statewide ballots that were proposed in response to the coronavirus pandemic and coronavirus-related regulations. On May 18, 2021, Pennsylvanians approved two constitutional amendments related to the governor’s emergency powers, which have been a point of conflict between the Republican-controlled Legislature and Democratic Gov. Tom Wolf during the pandemic. The other ballot measures will be decided in 2022 and concern changes to election procedures, convening legislative sessions, and increasing appropriations limits during emergencies.

Since 1876 when the Texas constitution was adopted, it has been amended 507 times. Voters approved 91% (154 of 169) and rejected 9% (15 of 169) of the constitutional amendments on ballots between 1995 and 2019.

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