Ind. Ruling Halts Caregiver Choices Based on Race

Charles Wilson, Google News, August 23, 2010

Certified nursing assistant Brenda Chaney was on duty in an Indiana nursing home one day when she discovered a patient lying on the floor, unable to stand.

But Chaney couldn’t help the woman up. She had to search for a white aide because the woman had left instructions that she did not want any black caregivers. And the nursing home insisted it was legally bound to honor the request.

The episode, which led to a recent federal court ruling that Chaney’s civil rights had been violated, has brought to light a little known consequence of the patients’ rights movement that swept the nation’s health care system over the last two decades.

Elderly patients, who won more legal control over their quality of life in nursing homes, sometimes want to dictate the race of those who care for them. And some nursing homes enforce those preferences in their staff policies.

“When people write laws, they don’t think about these types of things very much,” said Dennis Frick, an attorney with Indiana Legal Services’ Senior Law Project.

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In 1987, Congress enacted the Nursing Home Reform Law to address evidence of widespread abuse of nursing home patients. {snip}

But the emphasis on patient rights led some nursing homes to think they outweighed everything else.

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Under federal law, nursing home residents are free to choose their own physicians. Indiana’s law is broader, saying patients can choose their “providers of services.” Both laws say nursing homes must reasonably accommodate residents’ “individual needs and preferences.”

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Nursing homes can be hotbeds of racial friction, said David Smith, a Drexel University professor who has studied racial integration in hospitals and long-term care centers. In urban areas, staffs are often predominantly African-American while most patients are white. Some elderly people revert in dementia to the prejudices they grew up with.

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Courts have held that patients can refuse to be treated by a caregiver of the opposite sex, citing privacy issues. But the 7th U.S. Circuit Court of Appeals, ruling in Chaney’s case last month, said applying that accommodation to race goes too far.

“The privacy interest that is offended when one undresses in front of a doctor or nurse of the opposite sex does not apply to race,” the ruling said.

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