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What is the legal authority for a Continuing Care Retirement Community to transfer one of its residents from an independent living dwelling to its personal care home or long term care nursing facility ?
A. Certain residences within CCRC’s Are “Dwellings” Under the Fair Housing Act .
The FHA applies to all properties that qualify as “dwellings.” See 42 U.S.C. § 3602(b). The FHA defines dwelling as “any building, structure or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof.” See 42 U.S.C. § 3602(b). The definition of a dwelling can apply to any accommodation in which the occupant intends to occupy for more than a brief stay. See Garcia v. Condarco, 114 F. Supp. 2d 1158, 1160 (D.N.M. 2000). The Department of Housing and Urban Development has indicated that whether a facility within a CCRC is a dwelling depends on whether the facility at the CCRC is intended to be used as a residence for more than a brief period of time. See Appendix IV to 24 CFR, Ch.1, Subchapter A , Questions and Answers about the Fair Housing Accessibility Guidelines #7 ( 1994) The operation of each facility at the continuing care retirement community must be examined on a case-by-case basis to determine whether it contains dwellings. Factors to consider in making such an examination include, but are not limited to: the length of time persons stay in the project; whether policies are in effect at the project that are designed and intended to encourage or discourage occupants from forming an expectation and intent to continue to occupy space at the project; and the nature of the services provided by or at the project. See Appendix IV, noted above.
B. The FHA’s Prohibition On Handicap Discrimination Prevents A CCRC From Imposing “Independent Living “ Type Requirements Upon Residents Who Reside Within A CCRC Dwelling , As It Limits Their Ability To Obtain Services Within Their Dwellings To Assist With Their Disabilities.
Handicap can form the basis for a senior to challenge a CCRC involuntary transfer under the FHA. The statutory definition of “handicap” includes having an impairment which substantially limits one’s major life activities. See 42 U.S.C. § 3602(h). Housing discrimination based on handicap is prohibited by the Fair Housing Act. See 42 U.S.C. §§ 3603-3607, 3617 . Often, CCRCs make assessments of health and financial status during the initial application process, as well as during the resident’s occupancy of an independent living unit in order to determine whether the resident is able to “live independently. The FHA’s prohibition on handicap discrimination prevents housing providers from imposing “independent living” requirements on tenants who live within their own dwellings. See Cason v. Rochester Housing Auth., 748 F. Supp. 1002, 1003 (W.D.N.Y. 1990). Neiderhauser v. Independence Square Housing FH-FL Rptr. & 16,305, No. C 96-20504 (N.D. Cal. Aug. 27, 1998)). Jainniney v. Maximum Indep. Living, No. 00CV0879, 15 (N.D. Ohio Feb. 9, 2001).
By imposing the independent living requirement onto residents, a CCRC limits the ability of disabled residents to (1) live with non-disabled residents, and (2) to obtain services to assist with their disability. This violates 42 U.S.C. § 3604(f)(1)(prohibiting discrimination based on the handicap of a buyer, a renter, or a person associated with that buyer or renter); it violates section 3604(f)(2) § 3604(f)(2) (prohibiting discrimination “in the terms, conditions, or privileges of the rental of a dwelling, or in the provision of services or facilities in connection with such dwelling,” because of handicap); and it violates; and 42 U.S.C. § 3604(f)(3)(b) (defining discrimination as a refusal to make reasonable accommodations in “rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling”). See Bell v. Episcopal Church Home d/b /a Bishop Gadsden Retirement Community Estate of Blanche Bell , No. 2:05-1953 (D. S.C. July 8, 2005)
C. A CCRC Should Refrain From Requiring Dwelling Residents To Submit To Regular Medical Assessments. A CCRC Resident Should Not Be Denied His or Her Dwelling Just Because She Needs Aid To Continue To Dwell In That Particular Residence .
In accord with the FHA’s prohibition on imposing independent living requirements on tenants, a CCRC should also refrain from requiring those tenants to submit to regular medical assessments conducted by the community See Consent Order United States v. Resurrection Retirement Cmty., No. 02-CV-7453 (N.D. Ill. 2002), ), consent decree reported at 1 Fair Hous.-Fair Lending (Aspen L. & Bus.), Report Bulletin ¶ 12.12 (Dec. 1, 2002). Handicapped applicants often receive support from outside assistance programs See Cason at 1009 . A tenant who meets objective tenancy requirements should not be denied housing simple because he or she needs aid See Cason at 1009 . As a result of Cason, HUD revised its public housing occupancy policies to make clear that such authorities could no longer employ “independent living” eligibility criteria. See U.S. Dep’t. Of Hous. And Urban Dev., Public Housing Occupancy: Admission Handbook 7465.1, HUD Transmittal REV-2-CHG-2 (July 12, 1991) (rescinding pre-Cason Handbook provisions and announcing HUD policy that public housing authorities should not “judge whether handicapped applicants are capable of living independently [and not] require a physical examination as a condition of admission”); See also HUD Memorandum from Gordon H. Mansfield, Assistant Secretary for Fair Housing and Equal Opportunity, and Joseph G. Schiff, Assistant Secretary for Public Housing and Indian Housing, to All Regional Administrators re: PHA Determination of “Ability to Live Independently” As a Criterion for Admission to Public Housing (Dec. 31, 1990) (HUD memorandum advising public housing authorities, in light of Cason, to “rescind policies which may treat handicapped applicants different from others” and to not require proof of the ability to live independently).
D. All CCRC Contract Provisions That Purport To Waive A Dwelling Resident’s Federally Protected Rights Against Handicap Discrimination Are Unenforceable. Under The FHAA, A CCRC Is Required To Take Affirmative Steps To Change Rules Or Practices If Such Steps Are Necessary To Allow A Disabled Dwelling Resident To Live Or Dwell Within His or Her Community.
A resident may contend that a contract is not enforceable to the extent that it purports to waive a federally protected right, absent a specific statutory provision supporting such a waiver. There is no provision under the FHA allowing for such a waiver.’ See 42 U.S.C. §§ 3601-3619.
The requirement to make reasonable accommodations requires the CCRC to change any rule that is generally applicable to everyone so as to make its burden less heavy on disabled individuals. See Hubbard v. Samson Mgmt. Corp., 994 F. Supp. 187, 189 (S.D.N.Y. 1998) (citing Proviso Assoc. of Retarded Citizens v. Village of Westchester, 914 F. Supp. 1555, 1562 (N.D. Ill. 1996). Under the Fair Housing Amendments Act (FHAA) , “affirmative steps are required to change rules or practices if [such steps] are necessary to allow a person with a disability an opportunity to live in a community.”‘ See Samuelson v. Mid-Atlantic Realty Co., Inc., 947 F. Supp. 756, 759 (D. Del.1996) (citing Horizon House Dev. Servs., Inc. v. Twp. of Upper Southampton, 804 F. Supp. 683, 699 (E.D. Pa. 1992).
E. Accommodations that would fundamentally alter the nature of a CCRC program or impose an undue financial and administrative burden on the CCRC facility are not required. Thus, a CCRC can not reasonably accommodate a dwelling resident by allowing him or her to continue to dwell in her cottage if she medically needs to reside in a personal care home or a long term nursing care facility in order to be provided the 24 hour awake presence of either personal care staff or skilled nursing care staff . However, a CCRC is legally required to reasonably accommodate a dwelling resident’s request to continue to dwell in his or her residence cottage if he or she only needs to be provided with intermittent or part-time personal care and/or skilled nursing care assistance or supervision .
The requirement of reasonable accommodation does not make facilities obligated to do everything humanly possible to accommodate the disabled, as cost to the defendant and benefit to the plaintiff also merit consideration. See In re Kenna Homes Cooperative Corp., 210 W. Va. 380, 387 (W. Va. 2001) (citing Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995)). Accommodations that would fundamentally alter the nature of a CCRC program or impose an undue financial and administrative burden on the CCRC facility are not required. See, e.g., 24 C.F.R. §§ 100.203, 100.204; 28 C.F.R. §§ 36.302, 36.303, and 36.304. A CCRC is charged with a duty to provide occupants of its facility with medical care in terms of state regulated personal care home level services or skilled nursing care home level services based on their level of need . See Sally Herriot v. Channing House, 2008 U.S. Dist. LEXIS 65871 (N.D. Cal. 2008) (not for publication) reconsideration denied by, summary judgment granted by, judgment entered by Herriot v. Channing House, 2009 U.S. Dist. LEXIS 6617 (N.D. Cal., Jan. 29, 2009) . Thus , a CCRC can not reasonably accommodate a resident by allowing her to remain in her independent living residence when it would violate the 24 hour awake staff care provision associated with state personal care home and long term care nursing facility regulations and the licensure law for the CCRC, thereby altering the nature of the CCRC business. See Sally Herriot v. Channing House, 2008 U.S. Dist. LEXIS 65871 (N.D. Cal. 2008)(not for publication) reconsideration denied by, summary judgment granted by, judgment entered by Herriot v. Channing House, 2009 U.S. Dist. LEXIS 6617 (N.D. Cal., Jan. 29, 2009) ; O’Neal v. Alabama Department of Public Health , 826 F. Supp. 1368 (M.D. Ala. 1993)
In Pennsylvania, for example, personal care homes are designed to provide safe, humane, comfortable and supportive residential settings for adults who do not require the services in or of a licensed long-term care facility, but who do require assistance or supervision with activities of daily living, instrumental activities of daily living, or both. See 55 Pa. Code § 2600.1 (b). A secured dementia care unit is simply a personal care home or portion of a personal care home that provides specialized care and services for residents with Alzheimer’s disease or other dementia. See 55 Pa. Code § 2600.231(a). A key characteristic or staffing requirement of a Pennsylvania personal care home is that, depending on the home’s number of residents at least one direct care staff person must be present and awake in the home at all times one or more residents are present in the home . See 55 Pa. Code§ 2600.57, § 2600.58, § 2600.59. Similarly, a key characteristic or staffing requirement of a Pennsylvania long term care nursing facility is that it must provide licensed nursing and other nursing personnel to residents on a 24 hour basis. See 28 Pa Code § 201.2; 42 CFR § 483.35 (a) .
F. If a dwelling resident is eligible for Medicare coverage of home health services, Medicare can cover part -time or intermittent home health aide services and/or skilled nursing services furnished to him or her in her residence by or under arrangements made by a Medicare participating Home Health Agency. Such Medicare home health services coverage can be continuing or long term. The patient must be under a plan of care established under her physician’s orders. In addition to coverage for various other home health services, coverage can be provided for continuing occupational therapy, if medically necessary .
Where a patient is eligible for coverage of home health services, in addition to coverage other home health services ( like continuing occupational therapy, for one example,) Medicare covers part -time and/or intermittent home health aide services or skilled nursing services furnished any number of days per week as long as they are furnished (combined) less than 8 hours each day and 28 or fewer hours each week (or, subject to review on a case -by-case basis as to the need for care, less than 8 hours each day and 35 or fewer hours each week). See 42 U.S. Code § 1395d(a)(3); Medicare Benefit Policy Manual Chapter 7 – Home Health Services (Rev. 233, 02-24-17) citing Section 40 – Covered Services Under a Qualifying Home Health Plan of Care (Rev. 1, 10-01-03) A3-3118, HHA-205 Section 50.7 – Part-Time or Intermittent Home Health Aide and Skilled Nursing Services (Rev. 1, 10-01-03) A3 -3119.7, HHA-206.7, A3-3119.7A, HHA-206.7A, A3-3119.7.B, HHA-206.7.B. Medicare does not limit the number of continuous episode recertifications for beneficiaries who continue to be eligible for the home health benefit. See section 10.3 – Continuous 60-Day Episode Recertification (Rev. 1, 10-01-03) HH-201.3 The patient must be under a plan of care established under her physician’s orders and furnished by , or under arrangements made by , a Medicare participating Home Health Agency . See 42 CFR § 409.42 (d)(e); 42 CFR § 409.43(b).
G. The dwelling resident has the burden to request of the CCRC the specific reasonable accommodation(s) needed in order to afford him or her an equal opportunity to use and enjoy his or her dwelling. The question of what qualifies as a “reasonable accommodation” is necessarily fact-specific and must be determined on a case-by-case basis. A reasonable accommodation could include allowing a family member to move into the resident’s dwelling as an intermittent, part time caregiver/companion . Another reasonable accommodation would be the waiver of any prohibition of the use of private intermittent or part time nursing, home health aides or companions within the dwelling.
Generally, HUD rules place the initial burden on tenants to request accommodation and to propose the specific accommodations . The property owner is then responsible for determining whether the proposed accommodation is reasonable. The tenant must prove that the requested accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling. See Coronado v. Cobblestone Village Community Rentals , 163 Cal App 4th 831 (Cal Ct. App 2008); Bell v. Tower Mgmt. Services; 2008 U.S.Dist LEXIS 53514 (D. N.J. July 15, 2008). Generally, property owners must pay for reasonable accommodations, but not reasonable modifications. Fagundes v. Charter Builders Inc . 2008 US Dist LEXIS 9617 (N.D.Cal Jan 29, 2008)(unpublished).
The question of what qualifies as a “reasonable accommodation” is necessarily fact-specific and must be determined on a case-by-case basis. An example of a possible required accommodation is the waiver of an apartment complex’s “no pet” rule for disabled residents. Bronk v. Ineichen, 54 F.3d 425 (7thh Cir. 1995). Other accommodations could include allowing “under age” caregivers to live with the resident, waiving second person charges, or adjustments to other rates. Waivers of “no live-in guests” or “no private care provider” policies have been considered reasonable accommodations by the DOJ and the courts. See Fair Housing Challenges For Senior Housing Providers by Robin Dale & Paul Gordon @ www.flicra.com/uploadedFiles/File/Fair_Housing_Act_for_Residents.pdf
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