Future Proof: How to Ally with Older Adults Facing Systemic Discrimination & Marginalization

In this episode of Future Proof, Denny Chan, senior staff attorney at Justice in Aging, addresses civil rights for older adults and how the heterogeneity of this population means paying attention to the intersection between age and other protected identities. Chan and Kaldes also discuss how COVID-19 has exposed disparities in our racist healthcare system, LGBTQ protections and underreporting in healthcare discrimination and the importance of educating oneself about civil rights protections in order to help others.


 

 

 

 

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Denny Chan on left and Peter Kaldes on right

 

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Key Quotes

On thinking about how civil rights apply to older adults

"It's important to think about civil rights in a much broader context. We often think about civil rights for people of color or for women, or for people with disabilities, but we don't think about older adults in those communities. And the civil rights that protect those communities protect older adults, because they're a part of those communities, too."

On section 1557 of the Affordable Care Act, the ACA is nondiscrimination provision.

A law like section 1557 is so important to older adults. And in particular, what we're seeing under this Administration, unfortunately, is a real effort to curve back some of those protections. To end the regulations and enforcement. To take some teeth out of what were really strong laws

On racism, civil rights protections, policy brutality, and older adults

"I would argue that there's racism behind police brutality and what has ignited demands for justice. That's the same racism that causes disparate outcomes in nursing facilities for nursing facility residents of color. It's the same system. They have different manifestations, different symptoms, but it goes back to the same notion. At Justice in Aging, we're taking really seriously this notion because this is really crystallized how important civil rights protections are for older adults, for other communities, older adults who live at the intersection with different identities."

On the role that ASA members can play in fighting racism

"I'm hoping that the moment that we're living in will offer and support a reimagined boldness and newness to how aggressive we can be in ensuring that our systems are fair for everyone. That's where I see ASA members doing that internal evaluation. Are our staff matching the communities that we serve? How do we go about recruitment and retention? All those things are part of building a sector that will work better for the older adults that we serve."
 


 

Recent Work from Denny and Justice in Aging


 

Transcript:

Peter Kaldes  0:03  
Hi there, my name is Peter Kaldes. I'm the CEO of the American Society on Aging, and I want to welcome you to another episode of Future Proof. In this season of Future Proof, we're looking at equity and justice. And today on Future Proof, we have Denny Chan. He's a senior staff attorney at Justice in Aging, a national organization that uses the power of law to fight senior poverty. And today we'll be addressing the issues of equity and justice and how they intersect with Denny's important work advocating for health care reform and people eligible for both Medicare and Medicaid. So Denny, welcome to the show. 

Denny Chan  0:43  
Thank you so much for inviting me and I really appreciate the opportunity, Peter.

Peter Kaldes  0:47  
So Denny, I want to thank you for your contributions to ASA. In particular to some of the articles that you've recently written around fighting for the civil rights of older adults. Could we step back and start with, what does civil rights mean in the in the context of working with older adults?

Denny Chan  1:11  
Sure, absolutely. Thank you for the question. You know, the first thing that I think people think about in terms of civil rights as they apply to older adults is age discrimination. And that should be first and foremost in your mind. And so that's kind of where it starts. But I think it's also important in thinking about our diverse country and where older adults live and the communities that they live in, to think about civil rights much more broadly. It starts with something like age discrimination, but that's really not where it ends. Because we all know that the older adults that we're serving are not a monolithic community. They don't all look the same. They don't all eat the same food. They don't all have the same needs. So really, what I hope to see is increased attention in looking at the intersection of age with a bunch of other identities. So how do we think about older adults who might be limited English proficient? How do we think about older women? How do we think about LGBTQ seniors? All of them are going to have different lived experiences. And it's really the focus on that intersection and the fact that many of those groups have faced historical oppression and discrimination and continue to face challenges today. It's important to think about civil rights in a much broader context. We often think about civil rights for people of color or for women, or for people with disabilities, but we don't think about older adults in those communities. And the civil rights that protect those communities protect older adults, because they're a part of those communities, too.

Peter Kaldes  2:36  
That's a great point. And it's so interesting, particularly as you know, there's conversations about reopening schools that sometimes people forget that in that context, for example, you have older adults who are teachers, who are custodians, who are professors, who are principals. And even in those contexts, people forget about the implication of their work on older adults. So it's great to link up how civil rights work isn't limited to folks who aren't older. It may surprise some, but it's it doesn't surprise us.

Denny Chan  3:14  
Older adults aren't just hanging out the senior center. In the context of reopening schools, so many of our school-aged kids live with older adults. So we think about the risks of reopening, and we can talk more about that at some other time, but older adults are embedded in our communities. And it's important that we think about how broad and how non-monolithic, they are when we're thinking about older adult advocacy.

Peter Kaldes  3:43  
So Denny, indulge me a little bit here. As I mentioned to you, I'm an attorney. I'm a recovering attorney. So I'd love to geek out with you a little bit here on some cases that you've worked on, related to the civil rights of older adults. Can you share some examples?

Denny Chan  3:58  
Sure, absolutely. We might too get too geeky,  I hope people stay engaged. One example is a case that Justice in Aging brought several years ago. This was a case during the Obama era against the Social Security Administration because they had discriminated against same-sex couples who were receiving Supplemental Income Benefits. SSI.

So, there was such a hodgepodge in the marriage equality decisions and how states were going about it, that there was a period of time before the last marriage equality decision, where depending on what state you lived in whether the state would recognize that marriage. And whether, for purposes of SSI benefits, you'd be recognized. There were couples in marriage recognition states that the Social Security Administration claimed they had overpaid. Because, as you might know, the couple's rate for SSI is lower than two times the individual rate. So technically, for purposes of SSI payments and benefits, there were same-sex couples who had been overpaid. And so the Social Security Administration actually tried to seek overpayment from this population. To try to collect money from these people who, by definition, because they're on SSI, are poor. Because they are same-sex couples, they have higher health disparities. There were all sorts of reasons why this didn't make sense. 

We along with some partners went to court and tried to stop the Administration from seeking overpayment. Ultimately, we're able to settle with the Administration and get everything that we wanted. They stopped collecting overpayment for those couples. It's a really good example of how changes in the law can have unintended impacts on people's benefits and people's living situations. 

Another couple of cases that we've been working on is challenging what's known as the public charge immigration rule. And that's a rule under federal immigration law that allows immigration officers to deny admission to people who might use a bunch of resources. And, under the Trump administration, unfortunately, they've expanded how they consider that and who might count as someone who will use a lot of resources. And that has a disparate impact on older adults who are immigrants, in particular. What they said was using things like Medicaid, even accessing health care coverage could count against you. And technically speaking, there weren't a ton of people for whom the rule would necessarily apply to, but it was enough to scare people. In California, where I do a lot of work, we noticed a significant drop in Medicaid applications. People were worried that using Medicaid would mean that they were somehow going to have immigration-related consequences, even if the rule didn't apply to them, because it's so wonky. So we were involved in filing a series of amicus briefs, which are a friend of the court briefs, in a number of the lawsuits that were challenging the public charge rule.

Peter Kaldes  7:18  
It is amazing how sometimes there are perverse results from changes in laws that arguably, even with the best of intentions, end up having a disproportionate effect on a number of populations, and in this case, older adults. So I'm wondering if you could talk a little bit about some laws that currently exist to protect older adults and maybe are in danger of being perhaps applied inappropriately? 

Denny Chan  7:52  
The good news is that there is a strong bedrock of federal civil rights laws that apply to older adults. Obviously, we can start with the Age Discrimination Act. And that's really important, particularly during the pandemic. We know that there are hospitals and health systems out there, as we go through surges in different states--your state of Florida, my state of California, both are states where there are huge surges--and there's a real risk that we run out of hospital beds that we run out of ventilators. So things like the Age Discrimination Act protect older adults from being discriminated against. From a doctor saying, "Well, you're 85 and you're probably going to die anyway, pretty soon, right? So I'm going to give the ventilator 35-year-old." So that's a really important law, especially right now, in this context. 

There's a bunch of other federal civil rights laws like title six, section 504, and the Americans with Disabilities Act. And sex discrimination provisions that also would apply to older adults as well. 

You were talking about earlier about potentially, some laws that we should be looking out for that might be weakening: A newer law known as section 1557 of the Affordable Care Act, which is the ACA is nondiscrimination provision. That basically strengthened nondiscrimination protections specifically in health care, because it recognized that healthcare is kind of a different beast and that we really want to make sure there are strong nondiscrimination protections in that specific context. Even though section 1557 is not specific to older adults, we all know how important health care is for older adults. In particular, as we age, as a community ages, being able to access prescription drugs, being able to access home and community-based services -- that's fundamental to being happy and staying at home. A law like section 1557 is so important to older adults. And in particular, what we're seeing under this Administration, unfortunately, is a real effort to curve back some of those protections. To end the regulations and enforcement. To take some teeth out of what were really strong laws. I know a number of lawsuits have been filed. We are working on advocacy to try and maintain parts of the nondiscrimination rule. And we'll ultimately see where it goes.

Peter Kaldes  10:27  
You mentioned the implications of these laws on older adults who need healthcare, but also, increasingly, more and more older adults are reentering, or forced to stay in the in the workforce, and are looking for jobs right now, particularly during a pandemic. Can you talk a little bit about the age discrimination cases specifically? I understand that it's quite difficult to succeed at such a case. I know, through some of our new efforts here at ASA where we're going to be providing some summary of up-to-the-minute legislative initiatives on the Hill around matters related to older adults, there are a couple of proposals that are looking to tweak the amount of evidence you need to win on a case. And I'm wondering is that because the case laws, the burdens pretty high?

Denny Chan  11:27  
Absolutely. You're spot on in identifying and sort of crystallizing how difficult it is. There's a separate federal statute known as the Age Employment Discrimination Act that governs and protects against employment discrimination, specifically for people who are over 40 years old. And the way that the Supreme Court has interpreted that statute, unfortunately, has meant that people have to show that the reason they were fired was because of their age, the exact reason. It's a concept in legal jargon known as 'but-for causation.' So you have to show that it was this and no other factor that influenced the adverse employment decision. 

The way that discrimination works is that especially in 2020, it's subtle, it's implicit. It's not spoken. It's so hard already to make a strong case with solid evidence even without that kind of evidentiary standard. But because the standard is so high for private-sector employees, that's why these sort of legislative efforts are so important, because it's really modernizing discrimination law. There are very few circumstances where people are going to run up in a situation and the prospective employer will say, "I'm not hiring you because your too old," and that person gets it on tape and therefore rushes to court. That's not how this stuff works. It's much more subtle. It's much more implicit. And so hopefully legislative changes will make a difference because my opinion is that the statute has been interpreted to be impossible to win on these kinds of age employment discrimination claims.

Peter Kaldes  13:20  
Yeah. One thing you said there that the standard is higher for employees in the private sector, that implies that it's different for employees of the public sector?

Denny Chan  13:30  
That's right. Interestingly enough, the Supreme Court earlier this year issued an opinion that was specific to how the Age Employment Discrimination Act works with respect to federal government employees. And there it is not a 'but for causation' standard. They don't have as high of an evidentiary standard to meet. It was a very strong opinion, eight to one. It's a really good opinion, it probably should be what should be applied more broadly to private-sector employees as well. But that's ultimately why we have a split right now. And means that, at least with respect to federal employees, they have in theory with respect to the way the Supreme Court has interpreted the case law, an easier standard to meet.

Peter Kaldes  14:23  
Wow, I could continue geeking out on that difference, but I don't want to bore our listeners who aren't lawyers. But it's an important distinction, particularly if you're a federal employee who's an older worker. That's a really critical distinction. So thank you for raising that and bringing that to our attention. 

I want to turn a little bit to what's going on right now in our country. We're at a time of civil unrest. So I want to talk and ask you, from your perspective and the work that you're doing at Justice in Aging, how have the issues around police brutality changed your work in any way?

Denny Chan  15:01  
Peter, I think that's a really timely question and one that I don't take lightly and that we at Justice in Aging and don't take lightly. If we think about our work at Justice in Aging, our mission to fight senior poverty, poverty and race in this country are inextricably linked. You can't undo the two. And so our work already has to recognize that we are working within systems that are inherently racist and implicitly racist. And what we're seeing with all the efforts around grappling with the COVID-19 pandemic, is that communities of color are much harder hit. We know that. And we know, in particular, for ASA members, older adults in communities of color, older adults in nursing facilities are extremely hard hit. And so we see the effects of racism. And what I would argue is that there's racism behind police brutality and that what has ignited demands for justice. That's the same racism that causes disparate outcomes in nursing facilities for nursing facility residents of color. It's the same system. They have different manifestations, different symptoms, but it goes back to the same notion. At Justice in Aging, we're taking really seriously this notion because this is really crystallized how important civil rights protections are for older adults, for other communities, older adults who live at the intersection with different identities. And it's really a moment where we have to think critically about that. And not just think critically about it, but think about the ways in which our own practices and systems might be contributing, or implicitly contributing to that kind of work.

Peter Kaldes  16:57  
I want to talk about one specific area of your work. And that is around healthcare. When it comes to discrimination against older adults in a healthcare context, can you speak to how that really happens in practice? And what safeguards there are against it?

Denny Chan  17:13  
It comes up, depending on the older adult, in so many different ways. You could have an older adult who is denied admission to a nursing facility because they're LGBTQ. Or you have an older adult who is limited English proficient and they don't get an interpreter. And then they don't understand what's happening and they get a bill. All of that is discrimination at work in the healthcare setting. And what's fortunate is that, as I was saying before, we have a lot of strong federal civil rights laws that protect against that kind of discrimination and one that's specific to health care, section 1557 of the Affordable Care Act. Unfortunately, this administration under President Trump is really trying to gut parts of the regulations implementing that statute. Ultimately, you can't change the law. President Trump can't single-handedly change the law. And so the law is still there, discrimination is still unlawful. So if people aren't being welcome in congregate living settings because of their LGBTQ identification, or if they're not getting an interpreter or whatever the case might be, that's still unlawful, regardless of what the administration is trying to do in terms of tweaking around the edges and weakening certain protections.

Peter Kaldes  18:38  
You know, as you were talking, it occurs to me that there's an awful lot of work to be done at the intersection of race and age, or sexual orientation and age. And I'm wondering, how do these types of cases play out? And how might our ASA members, for example, help to guard against such discrimination?

Denny Chan  19:00  
Those are really important questions. I have older adults in my life and I know that based on who they are, that life isn't always easy or fair for them. And I also know that there's huge cultural pressure, depending on what community you are in, to make do with what you have, and to not speak up. And so one big problem for advocates is a severe underreporting of civil rights and discrimination issues. Older adults are not looking to make a fuss, they're not looking to rock the boat or make a big deal out of things. But we have all these systems set up to handle reports, to handle complaints. And I will give the Administration some credit. The Office of Civil Rights under the Department of Health and Human Services is investigating COVID-related age discrimination and disability discrimination very closely. They have closed a number of investigations in states across the country, shutting down guidance that could be problematic for older adults. So, in some areas, they have shown a commitment to try and make sure that states are getting it right during the pandemic. But all of that is reliant on people reporting cases and issues. I don't want to put the burden entirely on older adults. But the other piece here is how can ASA members, massage that right? How can you encourage people to speak up? How can you encourage the older adults that you're working with to file those complaints?

Even if it's not filing a complaint, because that could sound really scary and foreign and who knows what those consequences are, at least have an honest conversation with them about things like this. About civil rights violations or potential civil rights violations. That might sound so severe, but you might want to frame it as something unfair that happened to you. And just venting about it and talking about it. And from there advocates can sort of figure out obviously in partnership with the older adult, is, is it something to file a complaint about? But I think the hardest part is trying to push for change when sometimes these agencies will say, "Well, we don't get complaints," or, "We don't get requests." And we know empirically that the need is out there, but people get by with everything else that they have. They're not looking to make a big deal out of things. And that's one sort of mentality that I hope ASA members really help massage and really help shift in terms of older adults in this country.

Peter Kaldes  21:37  
That's a great point. I'd love to flesh that out more, but you said something also about HHS actually investigating certain discriminatory actions. Which I think is great. It demonstrates a real commitment to those sorts of laws. But I'm wondering if you could comment on civil rights across the board with this Administration. It feels as though things have gotten a little tenuous. And there's an inconsistent application of these laws. Can you speak to specifically your observation on that and what we might expect in the future?

Denny Chan  22:17  
This administration has not championed civil rights. They have not championed civil rights for older adults, they have not championed civil rights for older adults of color, LGBTQ older adults. What we've seen them do with trying to weaken the protections in healthcare against discrimination is a real gutting of some very strong protections that existed before. Generous language would say, they're, at least on the face, inconsistent, to be really enforcing rules and civil rights protections in COVID settings, as it pertains to crisis care standards. But then also to be gutting important civil rights laws on the other side at the same time. Literally in the same month. I think we will continue to see that kind of weakening. And I also think it's important to point out that this Administration, I talked earlier about the public charge rule and scaring immigrants from using public benefits. They've done a number of things around DACA. They've done a number of things around transgender individuals in the military. This exists in a much larger strategy to shake the very strong foundation of civil rights in this country. And they're going to continue to shake it until they're out of office. Until they think their work is done. I think that's a really important thing to keep in mind. These are not individual, isolated incidents. This is part of a long-term strategy. And fortunately, only recently we've seen some checks come in on the power of the Executive from the Supreme Court. But I think it's really important and shows you just how critical civil rights protections are in this moment.

Peter Kaldes  24:11  
And just to geek out with you again, I think some of those Supreme Court checks are really more about process than substance. Right? It's simple administrative law that was basically ignored in some of those cases. I want to share your optimism about the Supreme Court, but it was just some simpler rules following with respect to administrative law I suspect. But I let's let's go back to something you said earlier, about how ASA members can help identify and report on cases that they may see. Can you just sort of give us a primer, if you will, on how to best support older adults who have faced discrimination?

Denny Chan  24:52  
Sure. I think part of it is down to that one-on-one interaction with the trusted social worker of a trusted face for that older adult. You asked earlier about the moment that we're living and police brutality. And I think that there's a role for ASA members too. To be thinking critically about, what are our internal practices? How do we get cases? How do we choose which older adults to support and which older adults not to support? Where are we spending resources? All those are organizational questions that ASA members have the ability to change. We're not talking about huge structures here. You can look at the data and look at who you're serving, how you're serving them, what the utility utilization rates are, the outcomes, all of that is a knowable universe. And I think that's where we want to start, you know, having some internal dialogue and conversations. I'm hoping that the moment that we're living in will offer and support a reimagined boldness and newness to how aggressive we can be in ensuring that our systems are fair for everyone. That's where I see ASA members doing that internal evaluation. Are our staff matching the communities that we serve? How do we go about recruitment and retention? All those things are part of building a sector that will work better for the older adults that we serve.

Peter Kaldes  26:31  
I think that's right. I also think that a lot of our ASA members have such wonderful community resources at their fingertips. Whether it's a pro bono legal aid type of organization or even young Attorneys at Law Firms love to take on interesting pro bono matters. These types of cases would be so juicy and interesting for that kind of litigator who's interested in civil rights work and this is very much the civil rights work of our time right now. So those are great tips, Denny

Peter Kaldes  27:05  
I want to end on one question that I've been asking all our guests here on the second season of Future Proof. This is has been focused on equity and justice and I'm just curious, from a personal perspective, what attracted you to this work? Why are you doing this work?

Denny Chan  27:25  
I will try to give you the primer version, not the long version. Civil rights work and thinking about older adults and equity is something that's near and dear to my heart. I think largely influenced by the value that older adults in my life have. Specifically, my maternal grandmother who is still alive and I think about a lot in doing the work that I do. She is an 87-year-old immigrant from China and barely speaks any English, lives by herself because my paternal grandfather passed really early. And I think about all the struggles that she endures to get prescription drugs or to have someone come and help her with activities of daily living. And I think about whether and how the system is either set up for her or sometimes not set up for her. That's really what keeps me in the fight and keeps me grounded. Because there's, as you were saying before, there's been an assault, and as I said before, there's a shaking of the civil rights bedrock that our country exists on. And so I think about her a lot, and I think about other older adults who have led the civil rights movement in important ways by serving as plaintiffs in important civil rights lawsuits, like in some of the marriage equality decisions. All of that is where I draw my inspiration and where I continue to get my fight.

Peter Kaldes  28:59  
I'm glad you do, because we need more fighters like you fighting on behalf of older adults because there's a lot to fight about. So, Denny, thank you so much for joining us and for all the good work that you're doing at Justice in Aging. And I want to invite you back because I think there's a lot of great stuff we can talk about if you're willing to.

Denny Chan  29:22  
Of course, thank you so much for having me today.

Peter Kaldes  29:25  
And thank you, everyone, for joining us on this episode of Future Proof. Remember to visit our website to find out about new episodes coming up in this season on equity and justice. Thank you, everyone.