© 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 360 Olympia, WA T  F

© 2008 Lane Powell PC FAIR HOUSING ACT

© 2008 Lane Powell PC CURRENT ENFORCEMENT AND LITIGATION TRENDS ●Mobility Aides ●Transfers Between Levels of Care ●Private Duty Aides ●Service Animals

© 2008 Lane Powell PC FAIR HOUSING ACT ●Discrimination Prohibited in:  Sale or rental  Financing  Provision of brokerage and appraisal services  Advertising

© 2008 Lane Powell PC 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

© 2008 Lane Powell PC 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. FAIR HOUSING ACT – THE BASICS

© 2008 Lane Powell PC Familial Status and the Older Persons Exemptions ●55 or Older ●62 or Older FAIR HOUSING ACT – THE BASICS

© 2008 Lane Powell PC 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

© 2008 Lane Powell PC Discrimination Prohibited Forms of Discrimination: ●Disparate treatment ●Enforcing discriminatory policies ●Steering ●Refusing to reasonably accommodate FAIR HOUSING ACT AND DISABILITY DISCRIMINATION

© 2008 Lane Powell PC 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 FAIR HOUSING ACT AND DISABILITY DISCRIMINATION

© 2008 Lane Powell PC 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

© 2008 Lane Powell PC 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 FAIR HOUSING ACT AND DISABILITY DISCRIMINATION

© 2008 Lane Powell PC ●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. FAIR HOUSING ACT AND DISABILITY DISCRIMINATION

© 2008 Lane Powell PC 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

© 2008 Lane Powell PC Housing provider may request reliable disability-related information that: ●Verifies disability ●Describes need for accommodation ●Shows nexus between disability and accommodation FAIR HOUSING ACT AND DISABILITY DISCRIMINATION

© 2008 Lane Powell PC ●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

© 2008 Lane Powell PC 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” FAIR HOUSING ACT – MOBILITY AIDS

© 2008 Lane Powell PC 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 FAIR HOUSING ACT – MOBILITY AIDS

© 2008 Lane Powell PC 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 FAIR HOUSING ACT – MOBILITY AIDS

© 2008 Lane Powell PC Avoid: ●Competency testing ●Damage deposits ●Insurance requirements ●Prohibiting mobility aids in common areas ●Indemnity provisions ●Rental premiums ●Medical screening FAIR HOUSING ACT – MOBILITY AIDS

© 2008 Lane Powell PC 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 FAIR HOUSING ACT – MOBILITY AIDS

© 2008 Lane Powell PC ●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 ACT LEVELS OF CARE

© 2008 Lane Powell PC Herriot v. Channing House ●Allegations:  Discriminatory Practice  Illegal Inquiries  Steering  Refusal to make Reasonable Accommodations FAIR HOUSING ACT LEVELS OF CARE

© 2008 Lane Powell PC 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” FAIR HOUSING ACT LEVELS OF CARE

© 2008 Lane Powell PC 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 FAIR HOUSING ACT LEVELS OF CARE

© 2008 Lane Powell PC 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 FAIR HOUSING ACT LEVELS OF CARE

© 2008 Lane Powell PC ●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 ACT PRIVATE DUTY AIDES

© 2008 Lane Powell PC 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.” FAIR HOUSING ACT PRIVATE DUTY AIDES

© 2008 Lane Powell PC ●Reasonable restrictions to consider:  Background checks  Identification badges  Insured and bonded  Registration  Can’t be facility employee FAIR HOUSING ACT PRIVATE DUTY AIDES

© 2008 Lane Powell PC ●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

© 2008 Lane Powell PC ●Cason v. Rochester Housing Authority ●U.S. v. Resurrection Retirement Community, Inc. ●Symons v. City of Sanibel FAIR HOUSING ACT INDEPENDENT LIVING REQUIREMENTS

© 2008 Lane Powell PC ●Steering ●Admission inquiries ●Limitation in use of aids or limitation in access FAIR HOUSING ACT ADMISSION

© 2008 Lane Powell PC Questions?

© 2008 Lane Powell PC FAIR HOUSING ACT Barbara Duffy, Esq. Robin Dale, Esq. Lane Powell PC 111 Market Street NE, Suite 360 Olympia, Washington T  F