Many people who identify as lesbian, gay, bisexual, or transgender (LGBT) report having significant fear of discrimination and mistreatment as they age. Many LGBT older adults experience violations of their rights, when they try to access long-term care services and supports. Surveys have revealed concerns about discrimination by the staff and negative treatment by other residents, including verbal harassment and physical abuse. If you are facing this situation, you need to know your rights as LGBT residents in nursing homes.
Federal nursing home regulations and state and federal anti-discrimination laws protect all residents, including LGBT individuals, living in nursing homes from discrimination, harassment and abuse. You need to know the laws that protect you, so you can take action when someone violates your rights.
If a long-term care facility receives any Medicare or Medicaid funding or has Medicare or Medicaid certification, even if no current resident receives this funding, the facility must honor the following rights. The individual resident in a care center has these rights, whether he receives Medicare or Medicaid funding or not.
- Freedom from abuse. The facility must develop and follow policies that prohibit mistreatment of residents, including things like physical, mental, verbal, sexual, or financial abuse or neglect. The center must investigate and take action on allegations of abuse or neglect. Harassing a resident or refusing to provide good care based on a resident’s sexual orientation or gender identity violates the right to be free from abuse.
- The right to privacy includes the right to private communications, whether in-person or through electronic or any other means. The facility must also maximize the resident’s right to privacy about his body and his medical, personal and financial matters.
- The facility cannot restrict the right of a resident to receive visitors based on gender identity or sexual orientation. This issue comes up when a facility treats same-sex spouses or same-sex domestic partners different than different-sex couples.
- The right to participate in activities includes taking part in events of a religious, community, or social nature within and outside the facility. The staff cannot prevent you from taking part because of your sexual orientation or gender identity. You should be allowed to be involved in and promote LGBT events, support groups and other resources without concern about abuse or discrimination.
- The guarantee of respectful treatment includes dignity, respect, and consideration and being allowed to make your own decisions. This right also mandates you be addressed by your preferred pronoun and wear clothing and groom yourself, according to your gender identity.
- The right to participate in your care, includes designating someone as your decision-maker for medical, financial and other matters. Federal law protects the right to name your same-sex spouse as your legal representative. The nursing home must treat a same-sex spouse decision-maker the same as a different-sex spouse legal representative.
- The right to be fully informed protects a same-sex spouse’s right to the same information as a different-sex spouse.
- Your right to make your own choices includes what you wear and how you express yourself. You can choose to share a room with the person of your selection, as long as both people agree. The facility cannot discriminate on the basis of gender identity, sexual orientation, or marital status.
- The right to remain in the home bans the facility from discharging a resident on the basis of sexual orientation or gender identity.
Federal law orders nursing home staff to protect all residents from abuse and neglect, and to promptly report and investigate allegations of mistreatment. You can also contact your state’s ombudsman for long-term care to advocate for you.
An elder law attorney near you can explain how your state’s regulations differ from the general law of this article.
References: National Consumer Voice. “LGBT Elders.” (accessed August 15, 2019) https://ltcombudsman.org/issues/lgbt-elders