Navigating Nursing Home Violations, Dwindling Protections, and Potential Solutions for LGBT Older Adults

BY ANGIE PERONE

Local media recently reported that nearly a quarter of Michigan's nursing homes have been cited for serious health and safety violations. This coverage garnered attention from Congresswoman Debbie Dingell who expressed outrage of such treatment at facilities that "serve our most vulnerable." LGBT older adults are particularly vulnerable to abuse and neglect given a lack of training among many providers, failure to create and enforce inclusive agency-level caregiving policies, and a resurgence in religious exceptions in anti-discrimination and healthcare law.

Lifetime experiences of discrimination have created unique caregiving experiences for many LGBT older adults that increase their likelihood of living in a nursing home. Many LGBT older adults came of age when homosexuality and gender transgressions were routinely associated with pedophilia. Biological or adopted children was unthinkable for same-sex couples who were unable to disclose their relationship status for fear of harsh repercussions including jail, job loss, eviction, and hospitalization. As such, LGBT older adults are less likely to have children to care for them as they age. Instead, they often rely on families of choice within their same age-cohort, which can dwindle possible caregivers as LGBT older adults age together. Years of accumulated discrimination further render LGBT older adults more vulnerable to health issues, which may contribute to earlier and more frequent nursing home usage.

A survey completed by six LGBT organizations (Justice in Aging, 2015) indicated that many LGBT older adults fear disclosing their sexual orientation and/or gender identity because of negative experiences with service providers and/or fear of discrimination. In this survey, caregivers, older adults, and service providers reported instances where formal caregivers refused to bathe a gay man for sixteen days, prevented a transgender resident from eating, talking, and socializing with other residents, and failed to provide proper medical care such that one resident needed to visit the Emergency Department (Justice in Aging, 2015).

Currently, residents can file complaints with a long-term care ombudsman who is empowered to advocate for residents and resolve problems. However, ombudsmen training may not necessarily include content on some of the unique needs and concerns of LGBT older adults. Without assurance that an advocate has familiarity and experience serving LGBT people, LGBT older adults may be reticent to file complaints. This may be especially pronounced for transgender older adults and LGB older adults of color who report higher rates of health disparity, discrimination, and denial of care.

Nursing home residents can also file a civil claim in court. But this right may disappear soon. The Trump Administration proposed eliminating an Obama Administration rule that prohibits binding arbitration agreements. Many nursing home contracts require people to sign a mandatory arbitration agreement that precludes them from filing a complaint in court. Because arbitration uses different evidentiary rules than court, lacks a jury, and often favors repeat players (like businesses that repeatedly pay to use arbitration), many consumers and civil rights attorneys abhor mandatory binding arbitration clauses.

While CMS received an overwhelming number of negative comments in response to this proposed rule by the Aug. 7 deadline, the Trump administration has not yet stated when it will release a decision. In a world where LGBT people already lack many protections under the law, this legislative limbo creates one more reason for LGBT older adults to decide not to complain about abuse, neglect, or health and safety violations.

The Trump administration has further suggested eroding legal protections for LGBT nursing home residents through the Affordable Care Act's nondiscrimination provision. Section 1557 of the Affordable Care Act prohibits discrimination in health care services based on sex. Under the Obama Administration, the Department of Health and Human Services clarified that the prohibition of sex discrimination could also bar various forms of discrimination against LGBT people. The Trump Administration has threatened to change these federal regulations, and in a recent court filing in Franciscan Alliance v. Burwell, the Trump Administration indicated that it was currently vetting a draft of proposed regulatory changes to Section 1557.

Despite these obstacles, short-term and long-term solutions exist. Long-term care providers can obtain training and policy guidance from organizations like SAGE Metro Detroit to better prepare their staff on how to best serve LGBT older adults. The Michigan Civil Rights Commission could also interpret the Elliott-Larsen Civil Rights Act prohibition on sex to include protections for LGBT people, similar to other state and federal agency interpretations. Last month, the Commission denied the opportunity to issue this clarification, but the Commission could reconsider its decision. State or local policymakers could also pass an LGBT-specific long-term care bill of rights to mirror a law signed by the California governor earlier this month. With increasing attention on nursing home safety and health violations, such efforts could make great strides in better protecting LGBT older adults, a population particularly at-risk for abuse and neglect in nursing homes.

References

Justice in Aging, The National Gay and Lesbian Task Force, Services & Advocacy for GLBT

Elders (SAGE), Lambda Legal, The National Center for Lesbian Rights, & The National Center for Transgender Equality. "LGBT Older Adults in Long-term Care Facilities: Stories from the Field." Last updated June 2015.

Angie Perone is the Director of SAGE Metro Detroit and a Ph.D. candidate at the University of Michigan in social work and sociology. She previously served as a civil rights attorney at the National Center for Lesbian Rights, where she oversaw its LGBT Elder Law Project.


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