Michael J. Ritter

89 Texas L. Rev. 999

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In this Note, Ritter examines legal protections for queer elders residing in nursing homes, specifically under the Nursing Home Reform Act (NHRA).  As the U.S. population steadily ages, so does the portion of queer elders increase—what Ritter refers to as “the hidden population.”  What’s more, this segment of the elder population often lacks immediate family members that they can live with when unable to live alone and, unlike opposite-sex couples, same-sex partners are often ineligible for tax and other benefits.  As a result, a relatively greater number of queer elders will be more likely to move into nursing homes.

Ritter first provides an overview of the problems elderly individuals face when transitioning from independent living to a nursing home.  He highlights the distinctive problems queer elders face in this transition, specifically discrimination in the form of abuse, neglect, and stigmatization.  These problems, Ritter notes, along with a perceived need to conceal their sexual orientation, contributes to the deterioration of their health.

Ritter next reviews pertinent provisions of the NHRA.  This legislation regulates nursing homes that receive federal funds by establishing a residents’ bill of rights and requiring nursing home to maximize the welfare of each patient.  Ritter argues the NHRA should be reformed to add a statutory right of nondiscrimination based on sexual orientation and gender identity, to require nursing aides to undergo sensitivity training, and to diminish the discretion of the Secretary to decide whether to issue penalties to nursing homes that violate the NHRA’s proscriptions.  Doing so would not only improve the relationships between queer elders and their nursing aides, but also improve the quality of care these residents receive.