Long Term Care and Considerations of the Aging LGBT Adult

Over the past year, I’ve been increasingly advising and solution seeking with senior housing and aging services providers regarding the special aging needs of older lesbian, gay, bisexual, and transgender (LGBT) adults. I’ve been assisting long term care and assisted living organizations with developing policies and protocols and establishing training and education as the landscape in long term care continues to change.  With the enactment of the Affordable Care Act, recent decisions from the United States Supreme Court allowing gay couples the right to marry and access to certain federal benefits including Medicare as well as federal regulatory guidance and proposed rules, long term care providers need to increase legal and policy understanding, awareness and education in their organizations. OBRA ’87 (the federal Nursing Home Reform Act) and the resident’s bill of rights protect LGBT residents from discrimination and harassment, regardless of their sexual orientation or gender identity or expression and long term care providers are encouraged to examine policies and practices to ensure that discrimination is clearly prohibited, that recommendations for equitable and inclusive care are being followed, and that staff are trained to provide knowledgeable, sensitive care.

    On May 13, 2016, the Department of Health and Human Services issued The Nondiscrimination in Health Programs and Activities which is the final rule implementing Section 1557 of the ACA. This final rule seeks to advance health equity and reduce health care disparities. Under the rule, individuals are protected from discrimination in health care on the basis of race, color, national origin, age, disability and sex, including discrimination based on pregnancy, gender identity and sex stereotyping. 

    The final rule prohibits sex discrimination in health care by:

Prohibiting denial of health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.

    Current estimates state that 9 million Americans identify as LGBT. One study found that 27% of LGBT baby boomers had significant concerns about discrimination as they age and there are reports that LGBT older adults encounter violations of their rights when seeking long term care services and support. Incidents of abuse are often unreported or unidentified; however, a majority of individuals responding to a recent survey (578 of the 649 respondents or 89%) felt that staff would discriminate against an LGBT elder. Additionally, negative treatment, including verbal and physical harassment, by other residents was the most commonly reported problem by respondents in this study.

    The healthcare community is providing more attention to the special aging needs of the LGBT population. A recently-published, groundbreaking report—LGBT Older Adults in Long-Term Care Facilities: Stories from the Field—highlights the treatment that some LGBT elders may encounter and the reasons why LGBT older adults are less likely to access health and social services.     

Review Residents Rights and Consider Best Practices

    While we are familiar with the residents’ bill of rights, understanding the particular importance to LGBT individuals living in a nursing home or assisted living as well as knowing the applicable state nursing home regulations and various anti-discrimination laws may help LGBT older adults feel more included and provide additional protections for your organizations.

    Right to be free from abuse - All residents have the right to be free from abuse (by any individual - including other residents) and facilities must develop and implement policies and procedures that prohibit mistreatment of residents and investigate and report allegations of abuse. Resident mistreatment includes all types of abuse; such as verbal, sexual, mental and physical abuse, neglect and financial exploitation. For example, facility staff cannot refuse to provide care due to a resident’s sexual orientation nor can staff harass a resident due to his/her gender identity.

    Right to privacy - Residents have the right to private and unrestricted communication with anyone they choose (e.g. during in-person visits and through letters, telephone and electronic communication) and privacy regarding their medical, personal and financial affairs. Residents also have the right to privacy regarding their bodies, and all care must be given in a manner that maximizes that privacy.

    Right to receive visitors - Residents have the right to receive visitors of their choosing. According to the federal government, “residents must be notified of their rights to have visitors on a 24-hour basis, who could include, but are not limited to, spouses (including same-sex spouses), domestic partners (including same-sex domestic partners), other family members, or friends.”

    Right to participate in activities - Residents have the right to participate in (or choose not to participate in) social, religious, and community activities both inside and outside of the facility. For example, LGBT individuals have the right to participate in and promote an event, training or resource regarding LGBT equality without fear of discrimination or abuse.

    Right to be treated with respect - All residents have the right to be treated with dignity, respect and consideration and have the right to exercise their choice and self-determination. For example, all residents have the right to be addressed how they want to be addressed (e.g. using a resident’s preferred pronoun) and the right to be clothed and groomed consistent with their gender identity.

    Right to participate in care - Residents have the right to be informed about care and treatment, participate in their own assessment and care planning and make decisions regarding their treatment, including health care choices related to gender transition. Residents also have the right to designate a legal surrogate (or, decision-maker) to act on their behalf. State laws, such as health care power of attorney and guardianship laws, govern how someone (including same-sex partners or spouses or other family of choice) can make decisions on their behalf.

    Right to be fully informed - Facilities must inform residents of any changes in services, changes in care or treatment, what is covered by Medicare and Medicaid or other health care insurance and of a change in roommate or room. Facilities must provide notice before a change in roommate and be as “accommodating as possible” by considering each resident’s preferences. In regards to benefits, the federal government states that Medicare Advantage enrollees are entitled to equal access to services in the same skilled nursing facility their spouse resides in, regardless of sexual orientation. Specifically stating that, “this guarantee of coverage applies equally to couples who are in a legally recognized same-sex marriage, regardless of where they live.” 

    Right to choice - Residents have the right to make their own choices, including what to wear, how to express themselves and their daily routine. Residents also have the right to retain and use personal items (e.g. some furnishings, pictures). Additionally, residents have the right to room with a person of their choice, including same-sex spouses or partners, if they live in the same facility and both consent to the arrangement.

    Right to remain in the home - A facility cannot transfer or discharge a resident unless one (or more) of the permissible reasons for transfer or discharge apply. Residents cannot be transferred or discharged due to their sexual orientation or gender identity. 

    In-service and education and training in residents’ right and best practices and setting new benchmarks in your organization will enhance the quality assurance and risk management programs and the quality of care delivered in the communities. 

Guidance on Policies and Procedures 

Nondiscrimination policies that prohibit LGBT discrimination are a first and necessary step toward ensuring resindets have equal access to respectful, knowledgeable treatment and long term care. Recommendations and guidance on your organization’s policies include:

Gender Identity and Gender Expression Nondiscrimination Policies

    Residents’ Bill of Rights

    Protocols for Interactions with Transgender Patients

    Room Assignments

    Access to Restrooms

    Access to Personal Items that Assist Gender Presentation

    Admitting/Registration Records—Collection of Gender Identity Data

    Compliance with Privacy Laws

    Insurance Issues

(See: Lambda Legal) 

Reviewing and revising policies and practices for greater inclusiveness is consistent with federal and state regulatory compliance. Compliance will support risk prevention with regulatory complaints and reduce litigation. Moreover, commitment to diversity in the changing world of healthcare and especially eldercare highlights your organization’s best care policies and practices and improves quality of care for all elders.

Education, Training, Public Relations and Programming

    The question to be posed in the senior healthcare industry is: How is aging as an older LGBT adult different than aging as a heterosexual and/or non-transgender adult, and how might we reflect and honor these differences in our communities? 

    There are an abundance of resources available to educate and train our organizations. I’ve included a list of those we are relying on with our advisory and legal services. To begin with:         

    DO presume your organization has LGBT residents;

    DO NOT assume you can identify LGBT individuals by appearances, experiences,

    or external characteristics;

DO remember that a resident’s sexual orientation and gender identity are only two     aspects of a person’s overall identity and life experience;

    DO ask your residents about their sexual orientations and gender identities in a safe

    and confidential manner;

DO NOT assume that treating everyone the same, regardless of sexual orientation

    or gender identity, is effective or will make LGBT older adults feel safe or welcomed.

Education and training and modifications to protocols in the following areas are recommended: 

    Admission and Interview and Social Work Forms - Use inclusive terms, phrases, and language that do not presume a sexual orientation, gender identity, or relationship status.

    Confidentiality – Detail how resident information is kept confidential and private and shows residnets that they are respected and that they do not need to fear intrusion or harassment.

    Cultural Competency Training – Train all staff on how to identify and address the needs of LGBT older adults is key to making a community inclusive.

    Public Relations – Create inclusive marketing materials that reflect a commitment to diverse aging populations. 

    Programming – If possible, offer LGBT-specific programming demonstrating to other providers and agencies in your community that your community is welcoming of broader diversity principles. 

     Here are some of the central resources: The National Resource Center on LGBT Aging is the country’s first and only technical assistance resource center aimed at improving the quality of services and supports offered to LGBT older adults. Established in 2010 through a federal grant from the U.S. Department of Health and Human Services, the National Resource Center on LGBT Aging provides training, technical assistance and educational resources to aging providers, LGBT organizations and LGBT older adults. The center is lead by Services & Advocacy for GLBT Elders (SAGE) in partnership with

14 leading organizations from around the country. 

    With the increased level of oversight in long term care including compliance with nondiscrimination regulations policies, your organization will need to review and revise policies and practices through increased understanding in the area of LGBT elder care. Through these efforts, risk and litigation and compliance complaints can be reduced and quality of care increased to all elders we serve. I look forward to this continued conversation and services to our clients in this aree of legal and regulatory compliance and care delivery. .

Rebecca Adelman