Treating residents as individuals, training staff members and having the appropriate policies and procedures in place are key takeaways for senior living communities and other long-term care facilities working to comply with federal LGBTQ+ nondiscrimination requirements.
That’s according to Baker Donelson attorneys Jennifer Curry and Stefanie Doyle, who hosted a webinar on Thursday.
More than 5% of people living in senior living and care facilities identify as lesbian, gay, bisexual, transgender or queer, according to Doyle. Additionally, 70% of LGBTQ+ older adults fear having to “re-closet” themselves when seeking housing. And a 2020 study from the Center of American Progress revealed that 15% of self-identified LGBTQ+ respondents postponed or avoided medical treatment due to fear of discrimination.
LGBTQ+ rights in healthcare has been a topic of heated debate, according to the speakers. While the nation has moved toward greater inclusivity through laws and regulations, LGBTQ+ individuals continue to experience discrimination in the workplace, education, healthcare and housing, they said.
The adoption of the Affordable Care Act, Section 1557, prohibited discrimination on the basis of race, color, national origin, age, disability or sex — including pregnancy, sexual orientation, gender identity and sex characteristics — in covered health programs or activities.
Assisted living on the hook
Section 1557, Curry explained, took existing federal nondiscrimination laws that apply to public spaces of federally funded programs and applied those same protections to individuals in healthcare settings.
Many of the provisions in Section 1557 were reversed by the Trump Administration in 2020, leading the Biden administration to place a renewed focus on restoring those protections. Protections on the basis of gender identity and sexual orientation would be reinstated in Centers for Medicare & Medicaid Services regulations under a proposed rule announced last month by the U.S. Department of Health and Human Services.
The purpose of Section 1557, Curry said, is three-fold: to expand access to healthcare and coverage, to eliminate barriers to care and to reduce health disparities.
The law is expansive in who it applies to within the healthcare industry. Covered entities include health programs and activities that receive federal financial assistance from HHS, including grants, property, Medicaid and Medicare (Parts A,C and D), and / or taking credits and cost-sharing subsidies under Title I of the Affordable Care Act.
Although assisted living communities typically do not receive those types of federal funding, Curry said operators should expect HHS and the Office of Civil Rights to apply a broad definition to “covered entities.”
“It’s not the name of what you’re doing; it’s whether you’re in the healthcare space and you receive any of that funding from HHS,” Curry said. “The regulations make clear that when an entity is principally engaged in health services or health coverage, all of that entity’s operations are considered part of a health program or activity and must be in compliance with 1557.”
The Department of Housing and Urban Development interprets the Fair Housing Act — which applies to assisted living — to include sexual orientation, gender identity and gender expression under sex discrimination, according to Curry. Sex nondiscrimination regulations contained within the Health Insurance Portability and Accountability Act and the Americans with Disabilities Act also apply to assisted living.
In addition, she said, some state and local nondiscrimination laws prohibit healthcare discrimination based on gender identify in licensed healthcare facilities. Many states, for instance, have residents’ rights statutes or regulations that apply specifically to assisted living communities.
A recent proposed rule, Curry said, is meant to address gaps in identifying sexual discrimination under the law. The proposed rule would expand coverage of sex nondiscrimination provisions to be in line with recent legal and regulatory developments. That expansion would include prohibiting sex discrimination as it relates to sexual orientation and gender identify, strengthening enforcement and allowing exemptions from specific Section 1557 provisions based on violations of federal conscience or religious freedom laws.
The proposed rule also would include providers that receive Medicare Part B payments.
As a result, Doyle said, it’s important to train staff members on Section 1557 regulations if they potentially have resident or public interactions. Long-term care facilities with 15 or more employees also should ensure that they have grievance procedures and policies in place to address sex discrimination.
Facilities found to have violated Section 1557 by the Office of Civil Rights could face a review of their policies and procedures, training and monitoring requirements, and compensatory damages. Entities that refuse to take corrective actions could lose federal funding or face enforcement actions from the Justice Department.
Curry said that the industry can expect more to come from Section 1557 as discrimination definitions expand and court cases wind their way through the legal system, including changes for individuals with hearing or speech impairments.