In this episode, we talk about fair housing and senior living and moving beyond the basics. This episode covers the Top 5 unique fair housing challenges that we find in senior living. It also includes a brief court case summary and how it relates to a senior housing property management company.
Table of contents
Highlights of Episode 10 – Fair Housing Five – Top 5 Unique Challenges in Senior Living
Health Challenge Questions
When people move into a senior property, they’re older, much older, some of them, than what we would think of as a typical apartment community, and with that aging process often comes impairments, mental impairments and physical impairments, and sometimes senior housing providers want to get into those needs that their resident has.
This is for the best of intentions, this is because they want the person to be safe and comfortable, they want their family to be happy with the place they live, but in doing that, oftentimes they cross the line of asking about disabilities, and the Fair Housing Act doesn’t make an exception for senior housing providers, so the same rules apply about disabilities, about reasonable accommodations, that apply to all housing environments, and senior housing providers sometimes fail to take that into consideration.
Scooters in Senior Living Communities
Scooters or electric wheelchairs are something that are very common now, and just a few years ago were not common. Most of the buildings, the senior living buildings, were not built with the thought of many of those large electric vehicles roaming around their hallways, and in their dining rooms, and in their apartments, and so in an effort to protect the building and protect the other residents, a lot of senior housing providers have a lot of rules about safety, understandably, but also rules that sometimes burden the people that need to use scooters, and that has been the subject of repeated litigation. So scooters and their regulations are an important consideration from a fair housing standpoint, because many of the people that use those scooters are disabled and have rights as people with disabilities.
Transfers in Senior Living
Transfers are an issue that arises in all housing, but perhaps the more complicated examples come out of senior housing, and there are a lot of different ones. For instance, in a community such as a continuing care community, we call them often CCRCs, where there are a variety of levels of care, some offering medical assistance, some offering personal living assistance, and some offering no assistance at all, and in some of those communities, a person will start out in an apartment or a condo where there’s no personal services attached, but over time that person’s health decreases and now they need services, and in many CCRCs, there is the expectation that that person will leave their apartment and move to an assisted living unit, which is usually more cramped, usually much more small, and some residents don’t want to make that transfer.
There have been a variety of cases about whether it is a reasonable accommodation to permit a person like that, who now needs some kind of services, to remain in the unit they’ve been living in, or whether the property can require that transfer up to a different level of care, and that has all kinds of fair housing connotations because we’re talking about a person with disabilities, and do they have a right to a reasonable accommodation so that they can stay where they are? So that’s one example.
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Then there are other examples involving transfers to a more accessible unit, or transfers in a walk-up building from the second floor down to the first floor, because perhaps while the person that lived there, their mobility has decreased dramatically, and now they can’t climb the stairs. Again, a number of lawsuits about that issue, some with pretty awful results for a housing provider who failed to see the issue as a fair housing issue and provide a resolution for it, so it is the kind of thing that senior housing providers have got to keep in mind and keep an eye on.
The concept of independent living is certainly one with a very complex history. First of all, let’s acknowledge that the term “Independent living community” is very common in the senior housing industry, it is used everywhere. By itself, it is not necessarily a violation of the Fair Housing Act.
Where we have the problem though is people think if their community is independent living, then what that must mean is that people who have severe impairments, such as the example of perhaps the resident who might be going completely blind and need an aide, need a guide dog, and is that person still able to live independently? What about people who are growing older and who are losing a lot of their mental faculties, are they able to live independently, and if not, does that mean they need to move from your senior living community?
The problem with independent living is what it infers, and it has been seen to have so much litigation about this, and so many senior housing providers have been injured with these lawsuits because they fail to see that if you’re going to start talking about independent living, you are very directly talking about people’s disabilities, and the Fair Housing Act says you can’t discriminate against people with disabilities.
When they created the Fair Housing Act in 1968, and they created the regulations that go along with it, no one that was in the process of that development of that law thought about how does this law impact senior living, where the residents may come in very healthy, and within five years or 10 years, become very impaired. Some of those residents are so impaired that they are no longer safe to continue to live by themselves in that unit, and the housing provider is watching that deterioration.
People who operate senior housing are usually absolutely the best-intentioned people and care about their residents, and want to create a safe, healthy environment for their residents to live in. When they feel like they can’t do that for certain residents because of their deteriorating health, what they want to do is find one. Work with the family, if there is one, work with the resident, work with social service agencies, and find that person a better, more safe place to live.
Be aware that while that process, that intention, is so well-meaning, it can also be a fair housing violation, because what we’re saying is, to that resident, “You are too disabled to live here,” and the Fair Housing Act does not permit a housing provider, no matter how well-intentioned, to say that.
There are methods of accomplishing perhaps what that resident needs, but it has to be done very carefully and thoughtfully, always with this fair housing limit behind the process that’s used. Some have dealt with so many clients who have struggled so hard with this one, and it’s one of those situations where there are different good outcomes, sometimes there are very bad outcomes, but it is something that no senior housing provider should undertake without a thorough understanding of the fair housing issues involved.
This is a brand-new settlement that was just announced in June of 2020 between the Department of Justice, who sued a senior housing provider in Pennsylvania. There were three companies, the owner, the management agent, the former owner, and they all got sued, and this was a property that was known as an independent living property, and what the Justice Department said was that that property had been discriminating against its residents on the basis of their disability since 2005, so for a very, very long time, and they cited three violations.
The first was that the property required residents who used scooters, electric wheelchairs, to transfer from those into a chair when they use the dining room. Another thing that this property supposedly did is it charged a deposit for the use of scooters because of the damage that is frequently done to the building with the use of scooters.
And finally, the Department of Justice said this property talked a lot in its lease about the need for its residents to live independently, and if you’ll remember, that’s one of our top five, along with the scooter rules, and what the Department of Justice said was the lease said that the housing facility may have to conduct an assessment of the person’s physical condition at the time they entered and if their physical condition deteriorated, especially if the resident got certain illnesses, that the property would evict them from this senior living place because they were no longer able to live independently.
You can see from just the issues in this one case all of the perils that not understanding how the Fair Housing Act impacts senior living communities could have. There is a fund it has to create that is either at the level of $250,000 up to $350,000, depending on how many people come forward and say, “Yeah, I used to live there,” or “Yeah, I live there now and they discriminated against me,” and then they pay each of those people that might come forward, but the minimum they have to pay is 250, could be 350, and they have to pay a civil money penalty to the government for discriminating at $55,000, so those were very painful lessons that that property learned about not understanding its fair housing responsibilities.