On Sept. 3, 2015, the U.S. Department of Health and Human Services (HHS) issued a proposed rule to clarify the application of federal civil rights laws to the provision of health care.

The proposed rule specifies that the existing prohibition on sex discrimination in health care services includes discrimination on the basis of gender identity or sexual orientation. 

The rule also discusses language assistance for people with limited English proficiency and effective communication with individuals with disabilities. 

The proposed rule applies to all health care programs or activities that receive any funding from HHS, including Medicare and Medicaid.

HHS is accepting public comments on the proposed rule through Nov. 6, 2015. 

 

The Unite States Supreme Court recently held in Obergefell vs. Hodges that same-sex couples have a fundamental right to marry in all 50 states.

Beyond the legal, social, and political implications of this decision, senior living providers will need to analyze how this decision affects their operations as well as their employee benefit plans. The implications of this decision will extend to many areas, including retirement planning, Medicare benefits, Social Security benefits and tax filing, as well as issues of First Amendment rights for religiously-affiliated organizations.

It's important to keep up with the latest guidance from federal and state agencies to help navigate the changing landscape. We will keep members informed of any future developments. 

 

 

The LeadingAge Center for Applied Research (CFAR) is consulting on a project to create a “Long-Term Care Equality Index” (LEI) for lesbian, gay, bisexual and transgender (LGBT) older Americans.

The LEI, a joint project of The Human Rights Campaign Foundation (HRCF) and Services and Advocacy for LGBT Elders (SAGE), is made possible by generous support from Pfizer, Inc.

CFAR is working under contract with HRCF and SAGE. Both organizations are dedicated to helping LGBT Americans achieve equality and improve their lives.

About the Healthcare Equality Index

The new LEI index will be similar to the Healthcare Equality Index (HEI) that HRCF developed in 2007. The HEI is an online survey that helps health care organizations document how they meet the “Core 4” foundational criteria for LGBT patient-centered care:

  1. Patient nondiscrimination policies.
  2. Visitation policies.
  3. Employment nondiscrimination policies.
  4. Training in LGBT patient-centered care.

A Report of Recommendations from CFAR

CFAR researchers will prepare a report to guide HRCF and SAGE in developing and rolling out the LEI. That report is expected to include a set of recommendations addressing:

  • Specific sectors within the field of long-term care that would benefit most from, and be most inclined to participate in, the LEI.
  • Optimal strategies for recruiting and incentivizing long-term care organizations to participate in the LEI.
  • Challenges associated with the recruitment process and ways to mitigate those barriers.
  • Recommended strategies for rolling out the LEI to ensure a high response rate. These strategies might include targeting the rollout to specific long-term care sectors or particular geographic regions.
  • Potential best practices that long-term care providers have already implemented to ensure equal access to services and supports by LGBT older adults.
  • An informal catalog of all relevant key national organizations and providers, as well as policies and practices designed to promote inclusiveness in the delivery of long-term services and supports. 

Focus Groups and Web-Based Forums

Beginning in May, CFAR researchers will be reviewing the literature to uncover applicable best practices in the 4 domains that are currently identified in the HEI and expected to serve as a foundation for the LEI.

The center will also seek feedback about the LEI from a representative sample of long-term care providers through in-person focus groups and web-based forums. 

In addition, members of the LeadingAge LGBT Network will be asked to complete a voluntary, web-based survey.

Providers and Network members will be asked to offer their insights regarding: 

 

  • The benefit that LEI participation might offer to long-term care settings.
  • How open long-term care providers would be to participating in the LEI.
  • Specific strategies that might encourage providers to participate. 

 

Providers will also be asked to offer other feedback that could help CFAR fashion its recommendations to HRCF and SAGE.

Supporting Inclusive Practices

“LeadingAge is well poised to partner with HRCF and SAGE because we advocate for high-quality, person-centered care, and openly support the adoption of inclusive practices,” says Taryn Patterson, policy research associate and project director at CFAR. “We’re excited to be able to bring the valuable insights of LeadingAge experts and long-term care providers across the country to the LEI development process so this tool will be as relevant and useful to our field as possible.”

The U.S. Department of Housing and Urban Development (HUD) released specific guidance on July 13 to help avoid discrimination of lesbian, gay, bisexual, and transgender (LGBT) Americans in multifamily insured and assisted housing.


The notice, H 2015-06 Program Eligibility in Multifamily Assisted and Insured Housing Programs in Accordance with HUD’s Equal Access Rule, is intended to ensure that housing across HUD programs is open to all eligible individuals and families regardless of actual or perceived sexual orientation, gender identity, or marital status.


The Term 'Family'


As has been the case with HUD for some time now, “family” is a very broad term that essentially includes anyone that at least one program-qualifying eligible applicant identifies as part of the family at initial application/move-in.  


According to the HUD rules now, the term “family” includes, but is not limited to, single persons or a group of persons residing together, regardless of actual or perceived sexual orientation, gender identity, or marital status.


This rule reiterates expectations that a determination of eligibility for housing that is assisted by HUD or subject to a mortgage insured by the Federal Housing Administration "shall be made in accordance with the eligibility requirements provided for such program by HUD, and such housing shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status."


As pointed out by Mary Ross, HUD has indicated for the first time that project-specific Tenant Selection Plans may be checked for information about Equal Access.  


The notice specifically says, "HUD or a Contract Administrator may review an owner's tenant selection plan or other policies and procedures to determine if it complies with the Equal Access Rule."  


Further, with the release of TRACS version 202D, disclosure of gender is no longer required on HUD Form 50059 or HUD Form 50059A. This field can be left blank. 


For HUD programs, this means that owners/agents may want to remove any questions about gender identity from various forms and from your application, or at least to make them optional. 


Other than that, this notice is very similar to one issued earlier this year, Notice H 2015-01 Notice of Program Eligibility for HUD Assisted and Insured Housing Programs for All People Regardless of Sexual Orientation, Gender Identity or Marital Status as Required by HUD’s Equal Access Rule as described below.   


Earlier Guidance on Ensuring Equal Access


The U.S. Department of Housing and Urban Development (HUD) issued Notice H 2015-01 on Feb 6, 2015, in order to increase awareness of the HUD Equal Access Rule requirements for actual or perceived discrimination based on sexual orientation, on gender identity, or on marital status.


The rule revises HUD's general program requirements by adding new provisions at 24 CFR 5.105(a)(2). 


As a result, owner/agents may want to review forms to determine if inquiries about gender, sexual orientation or marital status are required. Since these criteria are not considered when determining eligibility, owner/agents may want to remove such inquiries or make responses optional if appropriate. 


Why Sexual Orientation and Gender Identity Questions Are Inappropriate for Determining Housing Eligibility


The purpose of this Housing Notice is to increase awareness of Office of Housing program participants and stakeholders of the requirements of the HUD Equal Access Rule for actual or perceived discrimination based on sexual orientation, gender identity, or marital status. 


The HUD Equal Access Rule implements policy to ensure that its core programs are open to all eligible individuals and families regardless of sexual orientation, gender identity or marital status. This rule follows a Jan. 24, 2011 proposed rule, which noted evidence suggesting that lesbian, gay, bisexual and transgender (LGBT) individuals and families are being arbitrarily excluded from housing opportunities in the private sector.


Modifications to Existing Rules


The rule revises HUD's general program requirements by adding the following provisions at 24 CFR 5.105(a)(2):


(a) A determination of eligibility for housing that is assisted by HUD or subject to a mortgage insured by the Federal Housing Administration shall be made in accordance with the eligibility requirements provided for such program by HUD, and such housing shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status, and


(b) No owner or administrator of HUD-assisted or HUD-insured housing, approved lender in an FHA mortgage insurance program, or any other recipient or sub-recipient of HUD funds may inquire about the sexual orientation or gender identity of an applicant for, or occupant of, HUD assisted or HUD-insured housing for purposes of determining eligibility or otherwise making such housing available.


The rule does not create any additional protected classes under the Fair Housing Act or any other civil rights law. Although the Fair Housing Act does not expressly include sexual orientation, because gender identity and marital status are protected classes, an LGBT person's experience with sexual orientation or gender identity housing discrimination may still be covered by the Fair Housing Act's prohibition on discrimination based on sex.


For example, courts have recognized that the Fair Housing Act's prohibition against discrimination because of sex includes discrimination based on non-conformance with sex stereotypes. Therefore, under certain circumstances, complaints involving sexual orientation or gender identity may be investigated under the Fair Housing Act.


Many states and local jurisdictions prohibit housing discrimination based on sexual orientation, gender identity and/or marital status, and HUD may refer complaints or other information concerning these protected classes to appropriate state and local fair housing enforcement agencies.


Recommendations for Owner/Agent Action


Mary Ross recommends the review of owner/agent created forms that may ask members to disclose gender or marital status, including but not limited to the:  


  • Application.
  • Live-in Aide Questionnaire.
  • Interim Certification Questionnaires.  

Other sample forms provided by HUD, including:


  • The Citizenship Declaration (HH 4350.3 R1, C4, Exhibit 3-5).
  • The Family Summary (HH 4350.3 R1, C4, Exhibit 3-4).
  • The Owner Summary (HH 4350.3 R1, C4, Exhibit 3-7) -- can be modified since these are not OMB forms.

Bonnie Wilpon advises that, as long as there's a housing-related need to know gender, that it can be required to  be provided. The notice provides two examples of permissible inquiries into sex:


  • Temporary, emergency shelter with shared sleeping areas or bathrooms.
  • To determine the number of bedrooms to which a household may be entitled.

And such info may be required on the for reporting for tax credit properties as well.


According to Wilpon, “I advise my clients that they can ask for gender on the applications if they want to as long as they also include a third ‘refused’ or ‘does not wish to disclose’ choice, since the info can be provided voluntarily.” 

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