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Fair Housing Act Guarantees Rights for LGBT Seniors in Nursing Homes

According to Services and Advocacy for GLBT Elders (SAGE), there are nearly 3 million Americans over age 50 that identify as LGBT. By the year 2030, that number is expected to double. The prospect of leaving one’s home to move into an assisted living facility or nursing home is daunting for anyone, but for LGBT elders, aging and potential relocation bring about unique hurdles.

Some of the challenges LGBT Seniors face are:

  • The majority of care provided to America’s elders is handled by a family member. Many LGBT seniors are not in a relationship, do not have children, or have strained familial relationships.
  • Discrimination with little “policing” done by assisted living or nursing home staff.
  • While the 2015 Supreme Court ruling of Obergefell v. Hodges requires ALL states to recognize same sex marriages:
    • Nursing homes and assisted living facilities can still deny partners from visiting each other
    • There is no ruling on same sex partners who have not legally married, meaning Social Security survivor benefits for life partners or those in civil unions are not granted.

 

Mother and Faithful Life Partner Alone after 32 Years
Concerns about elders and long term care have been brought into focus recently in Illinois after the U.S. Court of Appeals for the Seventh Circuit overturned a lower court’s decision to toss out a discrimination lawsuit against a senior living facility in Niles, a suburb of Chicago. Under the Fair Housing Act, all landlords have a duty to provide housing in an environment that is free from discrimination against protected classes. For Marsha Wentzel, life at Glen Saint Andrews Living Community was anything but welcoming.

For nearly 32 years, Marsha Wetzel spent her adult life alongside her partner, Judith Kahn. Together they adopted and raised a son.  Judith passed away in 2013 from colon cancer, never giving the couple the chance to legally marry. After Judith’s death, Ms. Wetzel lost their home after her partner’s family had her evicted. Suffering from severe arthritis and with no home and no one available to help care for her, she moved into Glen Saint Andrew’s Senior Living Community in Niles.

 

Series of Reported Incidents of Discrimination Lead to Lawsuit
Glen Saint Andrews is a 55 bed, private, for-profit, continuing care retirement community that enjoys a four out of five overall star rating on Nursing Home Compare. However, a closer look at the latest available staffing data reveals the facility relies on nurse aides to meet nearly all of their resident’s needs, falling far short of the state averages for resident time spent with a licensed nurse.

The Illinois average for per resident, per day time spent with an RN is 47 minutes. At Glen Saint Andrews, residents spend just 4 minutes a day with an RN. In Illinois, residents on average spend 38 minutes with an LPN or LVN. At Glen Saint Andrews, residents spend 7 minutes a day with these same staff members.

Glen Saint Andrews is right in line with the Illinois average of 2 hours and 2 minutes spent with a nurse aide (Glen Saint Andrews averages 2 hours and 2 minutes). While this is promising, considering the lack of time spent with licensed nurses (RNs, LPNs, and LVNs), this is pushing the majority of work to nurse aides. Perhaps it is an overburdened staff that allowed Ms. Wetzel to face over a year of discrimination and abuse, never truly intervening to protect her. Despite reporting many of the incidents she alleges in her lawsuit against the facility, her situation only continued to worsen.

The abuse started when a fellow resident asked about her family. Ms. Wetzel told her about her life partner and son. Once word spread of Ms. Wetzel’s sexual orientation, the abuse started. Most of the abuse was verbal, calling her homophobic names and referencing sex with men. Her lawsuit alleges that she reported the taunts to staff and that she enjoyed several months without an incident. However, after a few months, she was on her scooter on a ramp and was forcefully pushed by a resident after he used a slur to refer to her sexuality. She fell off the ramp. After reporting it, she was simply told “not to worry.” More verbal taunts ensued, including being told that homosexuals “burn in hell.”

Ms. Wetzel was subjected to physical abuse on at least 2 more occasions, including one incident where a table was flipped on her and another where she was hit in the face and suffered a black eye. She was told by staff that she was just looking for trouble and not believable, causing her to hide the black eye incident.

After 15 months of abuse, Marsha Wetzel called a legal helpline who took on her case and filed a lawsuit against Glen St. Andrews, alleging that they violated the Fair Housing Act by not only failing to provide a discrimination-free environment for tenants, but also for retaliating against her when she complained. According to the lawsuit, Ms. Wetzel says staff called her names, banned her from the lobby of the facility, accused her of smoking in her room, made fun of her for not having visitors during Christmas, gave her a worse seat in the dining hall, and stopped cleaning her room for a period of time.

The lawsuit was dismissed in January 2017 when attorneys for Glen Saint Andrews argued that the landlords in this case, the facility’s administrators, were not told of the abuse by staff, therefore making them unaware and unable to intervene. But just last week, an Illinois appeals court ruled that the lawsuit was fair and that arguments by the facility that these were merely disagreements among senior citizens was downplaying the severity of the alleged abuse. Judge Diane Wood wrote “The defendants dismiss this litany of abuse as no more than ordinary ‘squabbles’ and ‘bickering’ between ‘irascible,’ ‘crotchety senior resident[s]. A jury would be entitled to see the story otherwise.”

The case can now proceed through the district court as initially intended.

 

Levin & Perconti: Protecting the Dignity of ALL Senior Citizens
At Levin & Perconti, our commitment to protecting the rights of the elderly extends to every American, regardless of sexuality, gender, or income level. We have nearly 30 years of experience advocating for elder rights and have successfully recovered over half a billion dollars in settlements and jury verdicts.

If you or someone you love has been the victim of abuse, neglect, or discrimination in a senior living facility or nursing home as a result of your sexual identity, we want to help you. Under the Fair Housing Act, nursing homes and assisted-living facilities have a duty to provide a living environment that is free from discrimination. This includes intervening in resident-to-resident abuse when it is reported or observed.

Consultations with our attorneys are free and confidential. We only are paid if we recover money for you.

Contact us now at (312) 332-2872, toll-free at 877-374-1417, or by filling out our online case evaluation form.