Improving LGBT Lives, One Law at a Time

Editor’s Note: This article appears in the July/August, 2011, issue of Aging Today, ASA’s bi-monthly newspaper covering advances in research, practice and policy nationwide. ASA members receive Aging Today as a member benefit; non-members may purchase subscriptions at our online store. Photo: iStockPhoto/PeskyMonkey.

By Daniel Redman

In the past six months, agencies in the Obama Administration have taken important steps to protect LGBT elders. These changes will protect the rights of LGBT people to visit partners in the hospital, to remain financially afloat when one partner needs long-term care and to fight housing discrimination. Why do these new rules matter, and what gaps remain?

Slow Moves Toward Equity

When a married person begins nursing home care covered by Medicaid, federal rules protect the spouse that remains in the community. Opposite-sex married couples may transfer assets to each other without penalty, and the state may not recover costs for long-term care through estate recovery and liens when there is a surviving spouse.

Additionally, the law requires that a designated amount of a couple’s income and assets be reserved to support the community spouse. Any remaining income goes toward paying the monthly nursing home bill, with a combination of state and federal Medicaid funds paying the rest. These provisions are meant to protect the community spouse from impoverishment.

In 2008, Massachusetts gave same-sex couples equivalent protections by using state funds to pay for care. Everywhere else, however, LGBT partners are treated as legal strangers. Take Ray and George, two clients of Services & Advocacy for GLBT Elders (SAGE), profiled in the SAGE report Improving the Lives of LGBT Older Adults. Ray has Alzheimer’s disease, and George worries about when Ray might need a nursing home.

Without Medicaid’s spousal impoverishment protections, Ray would have to spend down virtually all of his assets to qualify for Medicaid-covered long-term care, leaving nothing for George, whose income is much smaller. That the government doesn’t recognize their relationship adds stress to George’s already significant caregiving burden, and he wonders how he’ll pay rent for the home they’ve shared for 44 years.

The U.S. Department of Health and Human Services has taken small steps toward equity. On June 10, 2011, the Centers for Medicare and Medicaid Services issued a letter informing states of options to more equitably apply rules governing Medicaid liens, transfer of assets and estate recovery for same-sex spouses and domestic partners.

But this guidance doesn’t enable states to extend key spousal impoverishment protections to same-sex couples. Laws like the one in Massachusetts remain necessary to protect same-sex couples’ income and assets for the partner remaining in the community. Says San Francisco attorney Deb Kinney, “Until the states adopt these protections, many LGBT people, and especially LGBT elders, feel very vulnerable not knowing what rights and protections they actually have as compared to their neighbors next door.”

Vital Step Forward…but

In January 2011, the Obama Administration issued regulations protecting hospital visitation rights of same-sex partners. For all LGBT people—elders, adults or young people—this is a vital step forward. For Janet Langbehn and her late partner Lisa Pond, the rules could have prevented a great deal of anguish.

In 2007, Janet and Lisa took their children on a family cruise in Florida. In the middle of the trip, Lisa suffered an aneurysm and collapsed. When they arrived at the hospital, a nurse told Janet, “I need you to know this is an anti-gay city and an anti-gay state, and you are not going to get to see her or know her condition.” Even when Janet produced a power of attorney document and healthcare proxy, doctors and hospital staff ignored them. In 2008, a federal district court dismissed Janet’s lawsuit against the hospital.

Two years later, when President Obama announced new rules protecting LGBT families, he called Janet personally to offer condolences. The new provisions require all medical facilities receiving Medicaid or Medicare funding to “inform patients, or an attending friend or family member, of the patient’s rights to visitors of his or her choosing. The policy also prohibits discrimination against visitors based on … gender identity [or] sexual orientation.”

This is important progress, but there is still work to do. “The job now is to educate hospitals, along with long-term care and other providers on the new mandates,” says Serena Worthington, SAGE’s director of Community Advocacy and Capacity Building. The regulations aren’t perfect, though: they don’t address situations where an incapacitated person failed to proactively designate a healthcare proxy.

New HUD Rules

The Department of Housing and Urban Development (HUD) oversees enforcement of the Fair Housing Act, which governs housing discrimination. This year, they issued guidelines to protect LGBT people’s housing rights. Only Congress can ensure comprehensive fair housing protection to the LGBT community by adding sexual orientation and gender identity to the Act. But HUD’s guidance is a significant step toward protecting the community—especially low-income LGBT elders seeking public housing.

The HUD guidelines—using laws already in place—clarify a number of protections. HUD staff members must “treat gender identity discrimination … as gender discrimination under the Fair Housing Act, and instructs HUD staff to inform individuals filing complaints about state and local agencies that have LGBT-inclusive discrimination laws.” This means people who face gender identity discrimination can now file complaints directly with HUD.

Another rule clarifies HUD’s definition of family to include same-sex partners, who may be “coheads” of households. Other provisions ensure equal access to housing programs for LGBT people, prohibit potential housing providers from inquiring about sexual orientation or gender identity, forbid taking sexual orientation or gender identity into account for FHA-insured mortgages and require recipients of federal housing funding to abide by state and local non-discrimination laws.

The impact on housing will be significant, ensuring better and more equitable access for LGBT people who would otherwise lack legal protections. “HUD has made huge strides to protect LGBT people against housing discrimination,” says NCLR Federal Policy director Maya Rupert. “Its recent guidance that the Fair Housing Act protects transgender people and its proposed rule on equal access for LGBT people are both monumental steps and will have a huge and lasting impact on the LGBT community.”

Cause for Celebration

Across the country, new innovations in LGBT elder anti-discrimination efforts are gaining steam. California passed laws in 2006 and 2008 to mandate LGBT inclusion by Area Agencies on Aging and cultural competency training for nursing home personnel. Now other jurisdictions are considering similar laws: Rep. Tammy Baldwin (D-Wis.) has put together a comprehensive bill to address all areas in the law where LGBT elders require additional protection from discrimination or disparate treatment.

These advances are good, but do not go as far as advocates would like. A comprehensive nondiscrimination bill including all LGBT people remains the ultimate goal. But the Obama Administration has succeeded in pushing through changes that directly improve the lives of countless LGBT elders—and that is reason for celebration.

Daniel Redman is an attorney in the Elder Law Project of the National Center for Lesbian Rights (NCLR).