By Eric Carlson–
For most people, moving into a nursing facility or assisted living facility is a transition into the unknown. And not necessarily a benign unknown, but “unknown” with a whiff of foreboding. This is doubly true for LGBTQ+ older adults, who well may be wary about moving into an unwelcoming or even hostile environment.
How to address this problem? One strategy is to pass a law. Since 2018, California has had a Bill of Rights for LTBTQ+ residents of long-term care facilities. The law prohibits facilities from discriminating on the basis of sexual orientation or gender identity in certain specified actions. The no-discrimination principle explicitly applies (for example) to admission and eviction decisions, room assignments, and clothing choice.
One provision of the Bill of Rights—the so-called “pronoun provision”—is currently being challenged in state court. Under this provision, if facility staff have been “clearly informed” of the resident’s chosen name and pronouns, they commit a violation by “willfully and repeatedly” failing to use the name or pronouns.
As things currently stand, this provision is unenforceable, based on a ruling from a state appellate court that the provision violates facility employees’ free speech rights. According to the court, the law regulates the content of speech and, although the law’s goal may be admirable, the state has adopted an unduly restrictive method to reach that goal. The court relied heavily on a finding that, under some circumstances, a staff member hypothetically could be guilty of a criminal offense by using the wrong name or pronoun.
Importantly, this appellate court ruling will not be the last word: the California Supreme Court accepted the case for review and is expected to issue its opinion later this year. Justice in Aging submitted a friend-of-the-court brief defending the law on behalf of itself, Openhouse (a nonprofit San Francisco LGBTQ+ senior service organization), and several other California community organizations.
The Importance and Power of Individual Advocacy
But passing laws (and sometimes the related litigation) are only part of the answer. LGBTQ+ facility residents can recognize the importance of legislation while also understanding the need to look out for yourself, sometimes, but not always, by utilizing the relevant law.
Perhaps the most obvious individual action is choosing a welcoming facility. A small number of California facilities designate themselves specifically for LGBTQ+ residents while others—due to history, a management initiative, or other factors—put themselves out as open and affirming for an LGBTQ+ clientele.
How to identify a facility that welcomes LGBTQ+ residents? A stereotypical indication would be a rainbow flag or marketing materials that feature same-sex couples. But a potential resident does not have to rely on discreet clues, nor overlook the power of asking questions. I encourage you to be as proactive on your own behalf as possible (or have a friend or family member be proactive on your behalf).
Ask the facility about LGBTQ+ residents. Ask about no-discrimination policies. And ask about things that are specifically important to you, whether related to sexual orientation, gender identity, health care needs, favorite activities, or any other concern. Remember, a potential resident represents possibly tens of thousands of dollars of future income for the facility, and should be prepared to exercise the leverage that comes with controlling that much money. And if facility staff seems uncomfortable with your inquiries or with the concept of an LGBTQ+ clientele? Better to know now rather than later.
Continuing to advocate for yourself after admission is also important. Both nursing facilities and assisted living facilities are required by law to work with residents (or a resident’s representative—this can be a family member or friend) to develop a service plan. Federal nursing facility law explicitly requires that care be “person-centered,” and that a facility make reasonable accommodations for a resident’s needs and preferences.
An important step in self-advocacy is bringing in other people to help. The resident or representative can consult with the publicly-funded Long-Term Care Ombudsman Program, which provides advocacy assistance for residents of nursing facilities and (to a lesser extent) assisted living facilities. Also, a resident has the option of filing a complaint with the relevant state inspection agency. In any case, the first and essential step for self-advocacy is the resident saying, “No, this is not good enough.”
There was a time when no laws supported the rights of LGBTQ+ people. Now, the laws have improved to a significant extent, but remaining gaps in relevant law, along with rampant facility noncompliance, still often leave facility residents in a precarious position. As a practical matter, residents and their representatives must assert their rights when the facility falls short. Speaking up may feel intimidating, but staying silent and hoping for the best is not a winning strategy. Reach out to others so you are not alone—to a friend, relative, neighbor, legal aid office, community social worker, ombudsman representative, or others. Don’t give a long-term care facility more power than it actually has. Facility staff feel pressure too, and the ombudsman program and licensing agencies can provide helpful back-up. The resident who stands up for themself, with help from a few friends or allies, may be pleasantly surprised by how much can be accomplished.
Eric Carlson, an attorney, is Director of Long-Term Services and Supports Advocacy at Justice in Aging, and author of the comprehensive consumer guide “25 Common Nursing Home Problems and How to Resolve Them,” available for free at https://justiceinaging.org/
Aging in Community Special Section Part Two by Dr. Marcy Adelman
Published on May 18, 2023
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