Voting is one of the most important rights and responsibilities that citizens of the United States have. Although over 160 million Americans are qualified to vote, sadly, many do not choose to exercise this right. They forfeit a chance to choose leaders and representatives who make important decisions about legislation that could affect their daily lives. Yet, there is a portion of our society that is ready, willing, and able to vote but are often denied this right because of where they live.
Long term care residents -- the elderly and those with disabilities -- historically have had a harder time accessing voting locations due to mobility, health, and other issues that interfere with one of their most important constitutional rights. Voting records indicate that these individuals have a turnout much lower than that of non-institutionalized citizens, a statistic that Rhode Island's State Ombudsman Kathleen Heren, a tireless advocate for those in long-term care, wants to make sure does not happen during this election, especially given the effects that COVID-19 has had on the senior care industry as a whole.
In a recent press release, Heren stated, "the office of the Rhode Island State Ombudsman is very concerned that due to the pandemic that the residents receiving long term care services will not get a chance to vote." But the 2020 election is not Heren's first rodeo -- not by a long-shot.
In 2018, the Rhode Island Ombudsman office teamed with the Disability Law Center to ensure that those in care and employees of the facilities were prepared for the election. In a news release that year, Heren wrote, "packages have been delivered to all nursing homes to prepare them on what their responsibilities are in assisting their residents to vote. Not all nursing home residents across the United States get to exercise their right to vote. Nursing homes in some states have violated resident voting rights. I am happy to report Rhode Island is not one of them. Reports from the Centers for Medicare and Medicaid Services in ProPublica’s Nursing Home Inspect website database show that over the past few years, dozens of nursing homes have been cited for violating residents’ voting rights. At a nursing home in Anchorage [Alaska], state inspectors reported that the facility failed to ensure residents the opportunity to vote in a municipal election. There seems to be a sense that when you enter a nursing home you lose all of your rights."
As an advocate of voting rights for long-term care residents, Heren cites the Nursing Home Reform Act of 1987 that clearly explains the rights of those in long term care when it comes to participating in elections, including dealing with those who present with cognitive disabilities.
"A facility can really make a difference in whether their residents can exercise their constitutional right to vote," Heren wrote. "The facility has an obligation to assist the residents in voting and to remind them when elections come up. It is not up to the facility to decide who should be able to vote. Nina Khon, a law professor at Syracuse University specializing in Elder Law states 'there is no capacity test for voting in this country.' Now, this certainly does not suggest that people with severe dementia should be given a ballot. That would be absurd. It does not however prevent someone with a dementia diagnosis from voting. Common sense must be used."
Today, COVID-19 has changed the senior care landscape in ways that were unimaginable just two short years ago. During a normal election cycle, residents at facilities are typically bombarded with representatives of those seeking office who bring with them all sorts of goodies ranging from donuts to pizza, and a flood of printed materials, all aimed at securing a vote. But this year is obviously very different. Long term care residents' access to information about candidates and their platforms is certainly limited. In many cases, a resident's only source of information may be a staff member or loved one - not an ideal way for someone to make an unbiased choice.
So given the current environment, does Heren anticipate any problems with voting interference either with staff or residents' families and if so, how does she plan to address these concerns?
"The Ombudsman office [is contacting] Nursing Homes and Assisted Livings to educate the staff on their responsibilities in securing the residents' right to vote," said Heren. "We have also given the staff the correct protocols on handling mail-in ballots. We found that staff were making decisions on who should vote based on whether the resident had slight dementia. The families were asked not to be present when the residents filled out their ballots to avoid undue influence on the resident. No candidates or their representatives should direct the resident in any way on how to chose a candidate. The Ombudsman's office has been contacting people who can get out the word on the importance of securing the residents' [right to vote]."
Certified elder law attorney, RJ Connelly III, is a strong supporter and advocate of Heren's work. "The State of Rhode Island could not have a more qualified and caring individual than Kathy heading up the Ombudsman office. When it comes to voting concerns for those in long-term care, my firm has received its share of complaints through the years about voting irregularities from both family members and staff at the facilities themselves. In every case, our next step was to place a call to Kathy Heren and her team."
There are also national concerns about the rights of long term care residents. The American Bar Association Commission on Law and Aging is engaging in a project to "identify, publicize, and catalyze policy and practice strategies nationwide that promote proper access to the polls by persons with cognitive impairments and protect against the fraudulent manipulation of the vote of this population."
According to the Bar Associations website in a May 27, 2020 post, this project, called, Accommodating Cognitive Impairments in Voting: Shaping Clinically and Ethically Sound Institutional and Public Policy, lies out the following four goals;
Surveying state election policies and activities addressing accommodations for persons with cognitive impairment in order to identify promising practices;
Developing an easily accessible clearinghouse of information and resources on the subject;
Identifying and describing the experiences in the November 2008 election of those election boards that provide direct outreach and support to residents of long-term care facilities and publishing a report of the findings;
Supporting and evaluating a demonstration project of "mobile polling" in Vermont and publishing the evaluation in a peer-reviewed journal.
The website article states that the second goal of the project will be accomplished by developing an easily accessible clearinghouse of information and resources on the subject, including findings from the first, third, and fourth goals of the project.
Back in Rhode Island, Heren finds it ironic that many in long term care who are at risk of losing their right to vote are the very people responsible for this freedom that most Americans take for granted. "It is always good to remember that some residents in long term care facilities are the same individuals who at one time protected the right to vote by risking their own lives fighting wars," she said. "These elders above all should be protected to exercise their right to vote. People with disabilities who reside in nursing homes should also be given the right to vote. For some unknown reason staff sometimes assume a disability prevents someone from voting. I sit on committees with disabled people who can run circles around me operating electronic devices such as a computer or I-phone."
Finally, Heren strongly recommends that the loved ones of long term care residents stay informed on the voting processes in place at the facility in which they are staying. She urges family members to "make time to speak to the facility member in charge of the voting initiative to determine what is being done to assist the residents with preparing for the upcoming election" -- an important task given the unprecedented and ever-changing policies due to the coronavirus.
At Connelly Law, we will continue to stay in contact with the Rhode Island State Ombudsman Office and report any irregularities that may arise around voting rights for long term care residents in Rhode Island both here in our weekly blog and on our radio show, "Southcoast Seniors Radio Magazine", heard live every Thursday from 4:00 pm to 5:00 pm on 790AM WPRV from Providence.
"As Americans, we should never take our fundamental rights lightly, no matter what party or politician we support," Connelly said. "The right to have a voice in our government through the ballot box is the most powerful tool we have as citizens of the United States. Unfortunately, in many parts of this country, the rights of long term care residents have often been disregarded and with the unique situation we are in with the pandemic, the environment is ripe for abuses to occur once again. Thankfully, long term care residents in Rhode Island have a wonderful advocate like Kathy Heren fighting for them and ensuring that their voices will be heard loud and clear this November."