© 2008 Lane Powell PC FAIR HOUSING ACT: Trends Affecting Assisted Living Providers Presented by: Barbara Duffy, Esq. Robin Dale, Esq. Lane Powell PC 111

© 2008 Lane Powell PC

FAIR HOUSING ACT: Trends Affecting

Assisted Living Providers

Presented by:

Barbara Duffy, Esq.

Robin Dale, Esq.Lane Powell PC

111 Market Street NE, Suite 360Olympia, WA 98501-1070

T.360.754.6001 [email protected]


FAIR HOUSING ACT


CURRENT ENFORCEMENT ANDLITIGATION TRENDS

● Mobility Aides● Transfers Between Levels of Care● Private Duty Aides● Service Animals


FAIR HOUSING ACT

● Discrimination Prohibited in: Sale or rental Financing Provision of brokerage and appraisal services Advertising


Protected Categories● Race● Color● Religion● Natural Origin● Sex● Familial Status● Disability● State and Local Protections

Age Sexual Orientation Military Status

FAIR HOUSING ACT – THE BASICS


The Act Applies to Dwellings

“Dwelling” is defined as any building, structure, or any portion thereof which is occupied as, or designed or intended for occupancy as, a residence.



Familial Status and the Older Persons Exemptions

● 55 or Older

● 62 or Older



Disability Broadly Defined

● Physical or mental impairment that substantially limits one or more major life activities

● Being regarded as disabled

● Having a record as disabled

FAIR HOUSING ACT AND DISABILITY DISCRIMINATION


Discrimination ProhibitedForms of Discrimination:

● Disparate treatment

● Enforcing discriminatory policies

● Steering

● Refusing to reasonably accommodate

FAIR HOUSING ACT ANDDISABILITY DISCRIMINATION


Reasonable Accommodation

● Exception, change or modification of rule, policy, procedure, program or service when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling



Examples of Reasonable Accommodation

● Waiver of no-pet policy and deposits

● Waiver of age requirements for live-in aides

● Allowing resident to modify residence to improve accessibility

FAIR HOUSING ACT AND DISABILITY DISCRIMINATION


Reasonable Accommodation Not Required When:

● Would impose undue financial or administrative burden

● Would fundamentally alter nature of the program

● Structurally unfeasible

● Individual is not disabled



● A provider is entitled to obtain information that is necessary to evaluate if a requested reasonable accommodation may be necessary because of a disability. If nature of disability and need for the requested accommodation is readily apparent, provider may not request additional information.



SPECIFIC ISSUES ARISING UNDER FHA

● Advertising● Language● Human Images● Admissions● Requirements of Tenancy● “Independent Living” Requirements● Private Duty Aides● Wheelchairs and Motorized Carts● Animals● Transportation and Parking● Transfers between Levels of Care


Housing provider may request reliable

disability-related information that:● Verifies disability● Describes need for accommodation● Shows nexus between disability and

accommodation



● U.S. v. Hillhaven, 960 F. Supp. 259

● U.S. v. Twining Service Corp. d/b/a Twining Village

● U.S. v. Covenant Retirement Community

● U.S. v. Savannah Pines

● U.S. v. Resurrection Retirement Community, Inc.

FAIR HOUSING ACT – MOBILITY AIDS


U.S. v. Hillhaven

“The court believes the purpose of the Fair Housing Act would not be served by invalidating guidelines which were established for the safety of elderly persons living in a retirement community-many of whom are feeble and handicapped in vision, hearing, or balance-in order to allow these persons who drive motorized carts to do so without any restrictions on the time place and manner of their operation”



U.S. v. Twining● DOJ alleged CCRC prevented use of motorized

carts in certain common areas● Required residents to indemnify facility● Yearly evaluation regardless of operation● DOJ brought FHA action● Consent Order entered



U.S. v. Covenant Retirement Communities West Inc.

● Conflict between state law and DOJ’s allegations of discrimination

● Reasonable time, place, and manner restrictions survived



Avoid:● Competency testing● Damage deposits● Insurance requirements● Prohibiting mobility aids in common areas● Indemnity provisions● Rental premiums● Medical screening



Mobility Aids Policies● OK to limit use to the disabled

● Direct threat exceptions are permitted

● Reasonable rules of the road are permitted

● Some time, place and manner exceptions are permitted

● Requesting resident to pay for damage is allowed



● Estate of Blanche Bell v. The Episcopal Church Home

● Herriot v. Channing House● Appenfelder v. Deupree St. Luke● Greater Napa Fair Housing v. Harvest

Redwood Retirement Residence

FAIR HOUSING ACTLEVELS OF CARE


Herriot v. Channing House● Allegations:

Discriminatory Practice Illegal Inquiries Steering Refusal to make Reasonable Accommodations

FAIR HOUSING ACT LEVELS OF CARE


Herriot v. Channing House

“If Plaintiff meets her burden of demonstrating that the proposed accommodation is reasonable, the Defendant bears the burden of proving that under particular circumstances the requested modification would fundamentally alter the nature of the service being offered”



Blanche Bell v. Bishop Gadsden● Consent Decree:

Required facility to adopt transfer policy Allowed facility to put reasonable limitations on

personal care aides Allowed reasonable time, place and manner

restrictions on motorized carts



Greater Napa Fair Housing v. Harvest Redwood Retirement Residence

● Claims - Discrimination due to: Charging for room service delivery, Questioning regarding ability to “live

independently” Failure to reasonably accommodate



● Estate of Blanche Bell v. The Episcopal Church Home

● U.S. v. Pacific Life Insurance● U.S. v. California Mobile Home Park

Management● Herriot v. Channing House

FAIR HOUSING ACTPRIVATE DUTY AIDES


U.S. v. California Mobile Home Park Management

“The provisions of the Fair Housing Act imposing an affirmative duty upon landlords to reasonably accommodate the needs of disabled persons may require landlords to assume reasonable financial burdens.”



● Reasonable restrictions to consider: Background checks Identification badges Insured and bonded Registration Can’t be facility employee



● Allow animals even if the facility as a “no pets policy”

● Resident must be disabled● Look for link between disability and need for

animal● Do not place a limit on size or type of animal● Do require reasonable rules of behavior● Do ensure that resident has the responsibility to

care for and supervise animal

FAIR HOUSING ACT SERVICE ANIMALS


● Cason v. Rochester Housing Authority● U.S. v. Resurrection Retirement

Community, Inc.● Symons v. City of Sanibel

FAIR HOUSING ACT INDEPENDENT LIVING REQUIREMENTS


● Steering● Admission inquiries● Limitation in use of aids or limitation in

access

FAIR HOUSING ACT ADMISSION


Questions?


FAIR HOUSING ACTBarbara Duffy, Esq.

Robin Dale, Esq.Lane Powell PC

111 Market Street NE, Suite 360Olympia, Washington 98501-1070T. 360.754.6001 F.360.754.1605

[email protected]

Documents

© 2008 Lane Powell PC FAIR HOUSING ACT: Trends Affecting Assisted Living Providers Presented by: Barbara Duffy, Esq. Robin Dale, Esq. Lane Powell PC 111