Stop claiming 'resident rights' in discrimination cases

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Elizabeth Newman
Elizabeth Newman

Every few years, McKnight's runs a story that goes something along these lines:

Residents in a skilled nursing facility say they don't want a black or immigrant caregiver. Facility decides that the way to solve this is to put up signs, i.e. “No colored nurses” in New York in 2013, or, more recently, a ban on black employees at an Indiana SNF from entering certain residents' rooms.

Inevitably, we get a flood of comments that say, “But what about residents' rights?” The theory being that seniors, some of whom are set in their ways, have rights under the Centers for Medicare & Medicaid Services related to racial preferences of their caregivers.

The Centers for Medicare & Medicaid Services, by not issuing clarifications on this, is letting you down.

That's because, as LeadingAge Vice President of Legal Affairs and Social Accountability Cory Kalheim discussed with me, everything under the resident rights umbrella are regulations, but in no way supersede federal law, in this case specifically the Civil Rights Act.

At the most basic level, this means if you discriminate against your employees, you're going to end up in trouble.

“At the end of the day, you can't discriminate against your employees,” Kalheim says. “You have to follow the law.”

The least charitable explanation of this provider defensiveness is some commenters feel the need to justify bad, racist policies in their own facilities by claiming resident rights. The most charitable explanation in these cases is that a facility was trying to protect the employee from verbal abuse or that they truly believe they are honoring resident preferences. Let's tackle each of these with Kalheim's help.

The first category is what we call “benevolent discrimination.” This is where you are trying to help “for the employee's own good,” which arguably reflects good intentions. This sometimes take the form, for example, of assuming a pregnant employee wouldn't want to travel or attend a big meeting, which in turn could hurt her career. In the case of trying to protect an employee from a racist resident by banning him or her from an area or room, it's both potentially holding that employee back from doing their job, could impact their advancement and is sending the message that racism is acceptable in your facility.

The second part relates to resident rights. As Kalheim told me, it's hard for facilities that want to keep residents happy. But he agrees that you have to think through the big picture, which is what would happen if a CMS surveyor came in and talked to a resident who said, “I'm unhappy because I have a black nurse.” The chances of a citation on that are slim and if it happens, please call me because I can't wait to write that story.

Should the surveyor make it an issue, “You'd have a very good argument,” Kalheim agrees. “CMS, frankly, I don't think wants to get into that argument.” Believe it or not, occasionally there is common sense around long-term care regulators.

Kalheim says most providers are doing the best they can, and that we can all agree residents have individual preferences. There's a big difference between a resident saying they like Person A as their CNA over Person B. You can try to accommodate that wish. It's miles away from a blanket policy on an entire ethnic or racial group.

Administrators wiser than me have offered advice on what to do when there's a racist resident. The best practice I have heard is that, when faced with problematic resident requests related to race or ethnicity (or gender), the administrator says, “We cannot accommodate that request based on our staffing, and if that is a problem for you we will work to find you another facility.”

Some would argue this is a bit of a bluff based on the feasibility of another facility being available, but it sends a message to the resident and the family that you are running a community. It also allows you to remind employees of basic non-discrimination policies. This also is true when a resident uses a racial slur. It has to be made clear that it's not acceptable behavior. For more on this, visit last year's blog on what to do when residents bully staff.

When in doubt on what to do, put yourself in the shoes of the category of people being asked to leave. If a resident said to you, “I'd prefer that no Christian men ever interacted with me,” or “Please put up a sign saying ‘No German Nurses,'” ask yourself if a) that would be reasonable and b) how you would feel if it were aimed at you.

And should you be tempted to roll your eyes or use the phrase “political correctness,” remember two things. One, we live in a time where white supremacy hate groups are on the rise. Two, let's look at where the long-term care workforce is headed. There is not any scenario where the direct caregiving industry is going to become less diverse or where you're not struggling to keep qualified caregivers. Don't let word spread that you have a facility where no one would ever want to work, or where any person of color would ever want to live.

Not to mention that when it comes to Equal Employment Opportunity Commission lawsuits, these receive a lot of attention and there's no way to spin that type of bad press. Whatever it will cost these facilities in terms of an actual settlement is small potatoes related to the damage to reputation.

Follow Senior Editor Elizabeth Newman on Twitter @TigerELN.


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Daily Editors' Notes

McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Marty Stempniak.