Quality Care for Queer Nursing Home Residents: The Prospect of Reforming the Nursing Home Reform Act*
Ritter, Michael J., Texas Law Review
The U.S. population is steadily aging: while currently comprising only 12% of the population, adults over the age of sixty-five will likely grow to comprise one-fifth of the populace in the next twenty-five years.1 In about forty years, this group will consist of 25% of the population.2 One aspect of individuals that tends to be thought about and discussed less as they age is their sexual orientation and gender identity. It is thus unsurprising that some dub the significant portion of this aging population identifying as gay, lesbian, bisexual, transgender, queer, or of a questioning sexuality3 as "the hidden population."4 Presently, as many as three million people ages sixtyfive and older identify as queer,5 a number that "could grow to [four] million by 2030."6 As the average age of the population increases, so will the number of queer elders7 in nursing homes throughout the country-a situation for which many nursing homes in the country are largely unprepared.8
At least two unique aspects of queer elders' lives make them more likely to move into nursing homes than the general population. First, they often lack immediate family members to move in with when they become unable to live alone.9 Second, unlike opposite-sex couples, same-sex partners are frequently ineligible for tax and other benefits; this can limit their options for dependent living.10 The impending demographical changes thus necessitate nursing-care facilities whose staffs and nursing aides are more informed of queer health and social issues.11 While nursing aides' primary function is to deliver medical care to nursing home residents,12 aides frequently provide the only sustained personal contact with nursing home residents.13 Thus, the key psychosocial roles they perform cannot be understated. Nursing aides' intolerance and ignorance contribute to unwelcoming nursing home environments that render these homes significantly less capable of providing the continuous medical and psychosocial care that their queer patients need.14
The discrimination against queer elderly individuals in nursing homes is receiving more and more national attention. In 2007 and 2008, investigative journalists exposed the pervasive abuse of queer elders in nursing homes by conducting a variety of interviews with queer nursing home residents.15 Since then, the news coverage and reports of neglect, abuse, and otherwise discriminatory actions by nursing home staffs have only been increasing.16 Though the federal government passed on an opportunity to increase the protection of queer elderly individuals in nursing homes in its recent groundbreaking healthcare reform legislation,17 the U.S. Department of Housing and Urban Development (HUD) has recently recognized the pervasive discrimination against queer elderly individuals in nursing homes.18 In 2009, HUD announced a plan to conduct a national survey of housing discrimination against elderly individuals in nursing homes and discrimination against queer individuals in the broader housing context.19
This Note argues that because nursing homes across the country are illprepared to offer effective care to the influx of queer elderly patients they will see in the near future, the federal government should increase its protections pertaining to the sexual orientation and gender identity of nursing home residents under the Nursing Home Reform Act (NHRA). Part II provides an overview of the problems associated with the transition of elderly individuals from independent living to nursing home living and highlights the distinctive troubles queer elders face when making this move. Discrimination against queer residents in the form of abuse, neglect, and stigmatization-combined with their perceived need to conceal their sexual orientation or gender identity-significantly contributes to the deterioration of patients' physical and mental health and renders ineffective the care nursing aides provide.
Part III reviews pertinent provisions of the NHRA that allocate federal funds to incentivize improvements in the quality of patient care. …