FAIR HOUSING ACT: Trends Affecting Assisted Living Providers

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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 98501-1070
• T.360.754.6001 ? F.360.754.1605
• daler_at_lanepowell.com
• www.lanepowell.com

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FAIR HOUSING ACT
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CURRENT ENFORCEMENT ANDLITIGATION TRENDS

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

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FAIR HOUSING ACT

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

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FAIR HOUSING ACT THE BASICS

• Protected Categories
• Race
• Color
• Religion
• Natural Origin
• Sex
• Familial Status
• Disability
• State and Local Protections
• Age
• Sexual Orientation
• Military Status

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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.

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FAIR HOUSING ACT THE BASICS

• Familial Status and the
• Older Persons Exemptions
• 55 or Older
• 62 or Older

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FAIR HOUSING ACT AND DISABILITY DISCRIMINATION

• 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

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FAIR HOUSING ACT AND DISABILITY DISCRIMINATION

• Discrimination Prohibited
• Forms of Discrimination
• Disparate treatment
• Enforcing discriminatory policies
• Steering
• Refusing to reasonably accommodate

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FAIR HOUSING ACT AND DISABILITY 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

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FAIR HOUSING ACT AND DISABILITY DISCRIMINATION

• 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

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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

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FAIR HOUSING ACT AND DISABILITY DISCRIMINATION

• 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.

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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

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FAIR HOUSING ACT AND DISABILITY DISCRIMINATION

• Housing provider may request reliable
• disability-related information that
• Verifies disability
• Describes need for accommodation
• Shows nexus between disability and accommodation

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FAIR HOUSING ACT MOBILITY AIDS

• 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.

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U.S. v. Hillhaven
FAIR HOUSING ACT MOBILITY AIDS

• 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

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U.S. v. Twining
FAIR HOUSING ACT MOBILITY AIDS

• 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

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U.S. v. Covenant Retirement Communities West
Inc.
FAIR HOUSING ACT MOBILITY AIDS

• Conflict between state law and DOJs allegations
  of discrimination
• Reasonable time, place, and manner restrictions
  survived

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FAIR HOUSING ACT MOBILITY AIDS

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

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FAIR HOUSING ACT MOBILITY AIDS

• 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

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FAIR HOUSING ACT LEVELS OF CARE

• 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

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Herriot v. Channing House
FAIR HOUSING ACT LEVELS OF CARE

• Allegations
• Discriminatory Practice
• Illegal Inquiries
• Steering
• Refusal to make Reasonable Accommodations

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Herriot v. Channing House
FAIR HOUSING ACT LEVELS OF CARE

• 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

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Blanche Bell v. Bishop Gadsden
FAIR HOUSING ACT LEVELS OF CARE

• 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

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Greater Napa Fair Housing v. Harvest Redwood
Retirement Residence
FAIR HOUSING ACT LEVELS OF CARE

• Claims - Discrimination due to
• Charging for room service delivery,
• Questioning regarding ability to live
  independently
• Failure to reasonably accommodate

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FAIR HOUSING ACT PRIVATE DUTY AIDES

• 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

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U.S. v. California Mobile Home Park Management
FAIR HOUSING ACT PRIVATE DUTY AIDES

• 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.

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FAIR HOUSING ACT PRIVATE DUTY AIDES

• Reasonable restrictions to consider
• Background checks
• Identification badges
• Insured and bonded
• Registration
• Cant be facility employee

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FAIR HOUSING ACT SERVICE ANIMALS

• 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

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FAIR HOUSING ACT INDEPENDENT LIVING REQUIREMENTS

• Cason v. Rochester Housing Authority
• U.S. v. Resurrection Retirement Community, Inc.
• Symons v. City of Sanibel

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FAIR HOUSING ACT ADMISSION

• Steering
• Admission inquiries
• Limitation in use of aids or limitation in access

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• Questions?

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FAIR HOUSING ACT Barbara Duffy, Esq. Robin Dale,
Esq. Lane Powell PC 111 Market Street NE, Suite
360 Olympia, Washington 98501-1070 T.
360.754.6001 ? F.360.754.1605 www.lanepowell.com
daler_at_lanepowell.com