Fair Housing & The ADA –A Provider’s Approach to Implementation

Arizona LeadingAgeMay/June, 2018

Jeremy Neely

Regional Vice President,

North East Region

ACTS Retirement-Life Communities, Inc.

Glenn D. FoxSenior Vice President –Legal, Compliance and Risk Management ACTS Retirement-Life Communities, Inc.

The Agenda:History

Fair Housing Acts and ADA

Case Review

Assistance Animals

Reasonable Accommodation

Motorized Vehicles

More on Safety

Questions

History• 1968 The Fair Housing Act Passed

• It did not protect people with disabilities

• 1973 Section 504 of the Rehabilitation Act

• Only protected those receiving federal financing

• 1988 The Fair Housing Amendment Act

• Applies to sale and rental of dwellings

• 1990 Americans with Disabilities Act

• Applies to public accommodations

Fair Housing Act and Amendments

• Basically provides that there is no discrimination in the sale, rental or financing of a dwelling on the basis of race, color, religion, sex, handicap, familial status or national origin.

• New bills in Congress (House and Senate) to add sexual orientation and gender identity as classes protected.

• The Fair and Equal Housing Act of 2017

The Americans with Disabilities Act of 1990

Generally, it does not apply to residential housing but to places of public accommodation (restaurants, retail stores, libraries, hospitals), and commercial facilities (office buildings, warehouses, and factories).

However, it does cover public and common use areas at housing developments when these public areas are, by their nature, open to the general public.

Source: HUD Website (www.hud.gov)

Enforcement

• The Fair Housing Act is enforced by the U.S. Department of Housing and Urban Development (HUD)

• The U.S. Department of Justice (DOJ) has authorized the Fair Housing Act to become involved in issues of discrimination.

What is Protected?

The following types of dwellings are covered:

• Group Homes

• CCRCs/PLCs

• Nursing Homes

• Assisted Living Facilities

• Residential Hotels

• Dormitories

Interpretation

• The laws are purposely drafted in a broad manner.

• Guidance as to application comes through the courts.

The Challenge

CCRC’s present a challenge for application of housing, disability and other discrimination laws.

• Advertising (Active Community)

• Admission (Entrance Screening)

• Facility services (Assistive Devices)

Case Study #1

Illinois, June 20, 2006-

CCRC told an applicant that

they would not rent an available

apartment to her because she

used a wheelchair.

Case Study #1

Illinois, June 20, 2006-

• Jury found that the CCRC defendants violated the Fair Housing Amendment Act when they told an applicant that they would not rent an available apartment to her because she used a wheelchair.

• Award: $15,000 to tenant and $10,000 in punitive damages

Case Study #2

Washington, D.C. February 1, 2006-

CCRC refused to rent an apartment to a man

with a vision impairment who relies upon

a guide dog for assistance.

Case Study #2

• Owner and manager of a CCRC violated the FHA byrefusing to rent an apartment to a man with a visionimpairment who relies upon a guide dog for assistance.

• Award: Defendants paid $25,000 to compensatevictims of discrimination at the complex, paid a $20,000civil penalty, and established and followed non-discriminatory tenancy procedures.

Case Study #3

• Posted: June 20, 2007Twining Services Corp. (TSC), which operates a continuing care retirement community (CCRC) in Holland, Pa., allegedly violated the FHA by restricting the use of mobility aids in its community’s common areas including banning their use in its dining rooms.

• Result: The Department of Justice (DOJ) ordered TSC to pay damages and penalties totaling $92,500, $17,500 of which went to the resident, a disabled tenant of TSC's, who was subjected to discrimination as a result of her use of a mobility aid.

Case Study #4

• Following an investigation by the Department of Justice (DOJ), Resurrection Retirement Community, Inc. (RRC) and Resurrection Health Care, Inc. (RHC) of Chicago paid $220,000 in damages and penalties after officials alleged the community discouraged wheelchair users from renting apartments and had different conditions of tenancy for disabled applicants. RRC and RHC also agreed to remove the requirement that applicants be "healthy and able to live independently of any assistance services" in order to become tenants of their senior "independent living" apartment facility.

Case Study #5

United States v. Fort Norfolk Retirement Community d/b/a Harbor’s Edge

Consent order entered into between U.S. and a CCRC located inNorfolk, VA (filed May 11, 2015).

Complaint in the action alleged that the CCRC discriminated againstpersons with disabilities in violation of the Fair Housing Act (andretaliated when complaints were made), including -

United States v. Fort Norfolk Retirement Community d/b/a Harbor’s Edge (cont’d)

Prohibiting and limiting residents living in the Healthcare building fromeating at the dining rooms located in the Residential Tower building

Prohibiting and limiting residents living in the Healthcare building fromattending Residential Tower and marketing events held outside of theHealthcare building with residents of the Residential Tower andprospective residents; and

Having a written policy requiring residents who use a motorized mobilityaid to pay a $300 non-refundable deposit, purchase liability insuranceand obtain permission to use the aid in the facility.

United States v. Fort Norfolk Retirement Community d/b/a Harbor’s Edge (cont’d)

CCRC denied allegations or that it discriminated.

It contended that the challenged procedures were adopted only aftermedical incidents had occurred involving ALF and SNF residents in theunregulated dining room in the Residential Tower and after obtainingadvice of counsel, the CCRC’s resident advisory council and stateagencies.

United States v. Fort Norfolk Retirement Community d/b/a Harbor’s Edge (cont’d)

Consent Order requires, among other things -

Adoption of a new dining and events policy (basically providing, among other things, that all dining facilities and events are open to all residents, with a case-by-case review of specific medical conditions subject to reasonable accommodations)

United States v. Fort Norfolk Retirement Community d/b/a Harbor’s Edge (cont’d)

Adoption of a new motorized wheelchair and scooter policy (basically providing for, among other things, the allowance of use of such devices for any resident, subject to evaluation on use only if:

United States v. Fort Norfolk Retirement Community d/b/a Harbor’s Edge (cont’d)

(Mobility Policy Cont’d)

1) the resident has failed to safely operate, resulting in injury or damage;

2) a medical condition would reasonably be expected to interfere with the ability to safely operate the device; or

3) the resident demonstrates that continued use of the device could reasonably be expected to pose a significant threat to self, others or property

All subject to reasonable accommodations.

Residents are to be oriented as to community common areas and safety rules prior to use

United States v. Fort Norfolk Retirement Community d/b/a Harbor’s Edge (cont’d)

Creation of a $350,000 settlement fund for the aggrieved residents (including paying back of the $300 fee obtained in connection with the use of a mobility device);

Payment of a $40,000 civil monetary penalty;

United States v. Fort Norfolk Retirement Community d/b/a Harbor’s Edge (cont’d)

Creation of an education program about the Consent Order and training program on nondiscrimination and the requirements of the Fair Housing Act;

Reporting requirements to the DOJ; and

Consent Order is to remain in effect for three years.

Additional requirements.

Assistance Animals

An assistance animal is not a pet.

Assistance animals perform many disability-related functions.

For purposes of reasonable accommodation requests, an assistance animal need not be

individually trained or certified. While dogs are the most common type of assistance animal, other animals can also be assistance animals.

Source: HUD Website (www.hud.gov)

Reasonable Accommodations

The Fair Housing Act prohibits the refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations are necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.

The Fair Housing Act prohibits housing providers from refusing residency to persons with disabilities, or placing conditions on their residency, because they require reasonable accommodations.

Source: HUD Website (www.hud.gov)

Reasonable Accommodations

When is an accommodation necessary?

When there is an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability.

When can a reasonable accommodation be denied?

• Request was not made by or on behalf of a person with a disability or if there is no disability-related need for the accommodation.

• Request may be denied if providing the accommodation is not reasonable – i.e., if it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider's operations.

Impact on CommunitiesMotorized Vehicles

• Evidence of medical need for the cart

• NO LONGER REQUIRED

• Evidence of sufficient skills to operate it safely

• NO LONGER REQUIRED

• Proof of insurance

• NO LONGER REQUIRED

Impact on CommunitiesMotorized Vehicles

• Public Areas• Auditorium/Club Room/Mail Room

• Do not block access to exits

• Do not obstruct passage

• Pull over to side to have conversations

• Dining Venues• Motorized Wheelchairs

• Rights – right to dine

• Responsibilities – safety first

Impact on Communities Motorized Vehicles

• Hallways

• No Parking

• No Charging

• Pedestrians have the right of way

• Outdoor Driving

• Parking lots or driveways

• Use a “ship antenna or flag”

• Always use extreme caution

• Take cell phone or tell a friend (no Med-alert)

Impact on Communities Motorized Vehicles

• Rules of the road• Vehicle Specifications

• Adjustable Speed Control

• Audible Warning Device

• No more than 25 inches wide

• Driving• Drive slowly or at a safe speed

• Pedestrians have the right of way

• Storage• Temporary parking is permitted in community designated locations only.

• Like all other possessions, owner is responsible for long-term and overnight parking.

What’s the residents’ role in safety?

• Safety is the responsibility of all (drivers and walkers).

• Report all incidents• Actual or close calls

• Be sure that your vehicle is well maintained.

• Be sure that objects are securely attached to the vehicle. Do not pull items behind you.

Questions?