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FAIR HOUSING ACT: Trends Affecting Assisted Living Providers Presented by: Barbara Duffy, Esq. Robin 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 [email protected] com www. lanepowell. com © 2008 Lane Powell PC

FAIR HOUSING ACT © 2008 Lane Powell PC FAIR HOUSING ACT © 2008 Lane Powell PC

CURRENT ENFORCEMENT AND LITIGATION TRENDS ● ● Mobility Aides Transfers Between Levels of Care 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 § FAIR HOUSING ACT ● Discrimination Prohibited in: § Sale or rental § Financing § Provision of brokerage and appraisal services § Advertising © 2008 Lane Powell PC

FAIR HOUSING ACT – THE BASICS Protected Categories ● ● ● ● Race Color FAIR HOUSING ACT – THE BASICS Protected Categories ● ● ● ● Race Color Religion Natural Origin Sex Familial Status Disability State and Local Protections n n n Age Sexual Orientation Military Status © 2008 Lane Powell PC

FAIR HOUSING ACT – THE BASICS The Act Applies to Dwellings “Dwelling” is defined 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. © 2008 Lane Powell PC

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

FAIR HOUSING ACT AND DISABILITY DISCRIMINATION Disability Broadly Defined ● Physical or mental impairment 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 © 2008 Lane Powell PC

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

FAIR HOUSING ACT AND DISABILITY DISCRIMINATION Reasonable Accommodation ● Exception, change or modification of 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 © 2008 Lane Powell PC

FAIR HOUSING ACT AND DISABILITY DISCRIMINATION Examples of Reasonable Accommodation ● ● ● Waiver 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 © 2008 Lane Powell PC

FAIR HOUSING ACT AND DISABILITY DISCRIMINATION Reasonable Accommodation Not Required When: ● ● Would 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 © 2008 Lane Powell PC

FAIR HOUSING ACT AND DISABILITY DISCRIMINATION ● A provider is entitled to obtain information 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. © 2008 Lane Powell PC

SPECIFIC ISSUES ARISING UNDER FHA ● ● ● Advertising Language Human Images Admissions Requirements 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

FAIR HOUSING ACT AND DISABILITY DISCRIMINATION Housing provider may request reliable disability-related information that: 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 © 2008 Lane Powell PC

FAIR HOUSING ACT – MOBILITY AIDS ● ● U. S. v. Hillhaven, 960 F. 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. © 2008 Lane Powell PC

FAIR HOUSING ACT – MOBILITY AIDS U. S. v. Hillhaven “The court believes the FAIR HOUSING ACT – MOBILITY AIDS 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” © 2008 Lane Powell PC

FAIR HOUSING ACT – MOBILITY AIDS U. S. v. Twining ● ● ● DOJ FAIR HOUSING ACT – MOBILITY AIDS 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 © 2008 Lane Powell PC

FAIR HOUSING ACT – MOBILITY AIDS U. S. v. Covenant Retirement Communities West Inc. FAIR HOUSING ACT – MOBILITY AIDS 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 © 2008 Lane Powell PC

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

FAIR HOUSING ACT – MOBILITY AIDS Mobility Aids Policies ● OK to limit use 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 © 2008 Lane Powell PC

FAIR HOUSING ACT LEVELS OF CARE ● ● Estate of Blanche Bell v. The 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 © 2008 Lane Powell PC

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

FAIR HOUSING ACT LEVELS OF CARE Herriot v. Channing House “If Plaintiff meets her FAIR HOUSING ACT LEVELS OF CARE 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” © 2008 Lane Powell PC

FAIR HOUSING ACT LEVELS OF CARE ● Blanche Bell v. Bishop Gadsden Consent Decree: FAIR HOUSING ACT LEVELS OF CARE ● 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 © 2008 Lane Powell PC

FAIR HOUSING ACT LEVELS OF CARE ● Greater Napa Fair Housing v. Harvest Redwood FAIR HOUSING ACT LEVELS OF CARE ● 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 © 2008 Lane Powell PC

FAIR HOUSING ACT PRIVATE DUTY AIDES ● ● Estate of Blanche Bell v. The 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 © 2008 Lane Powell PC

FAIR HOUSING ACT PRIVATE DUTY AIDES U. S. v. California Mobile Home Park Management FAIR HOUSING ACT PRIVATE DUTY AIDES 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. ” © 2008 Lane Powell PC

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

FAIR HOUSING ACT SERVICE ANIMALS ● ● ● Allow animals even if the facility 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 © 2008 Lane Powell PC

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

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

Questions? © 2008 Lane Powell PC Questions? © 2008 Lane Powell PC

FAIR HOUSING ACT Barbara Duffy, Esq. Robin Dale, Esq. Lane Powell PC 111 Market 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 [email protected] com © 2008 Lane Powell PC