The approximately 1,900 continuing care retirement communities (CCRCs) in the United States are currently grappling with issues relating to fair housing and reasonable accommodation due to the unique nature of the CCRC model.
A CCRC offers a continuum of care model that encompasses independent living, assisted living, and skilled nursing care. As such, CCRCs have a wide age range of seniors residing on their campuses in varying stages of mental acuity and physical health.
Recently, questions have arisen as to whether a CCRC can restrict access to certain part of a campus by very ill residents or exercise its contractual authority to move a resident from his or her independent living unit (ILU) to full-time care.
Every CCRC should be aware of the potential litigation hazards it faces when dealing with these questions and of the two federal statutes upon which a plaintiff will most likely base his or her potential discrimination case.
A CCRC is contractually obligated to provide a continuum of care to its residents and is authorized to assess its residents’ health along the continuum and transfer them accordingly. What happens, however, if a resident does not wish to move from his or her ILU to full-time care?

Removal From Independent To Assisted Living

In Herriot v. Channing House, a case in the U.S. District Court for the Northern District of California, a resident sued her CCRC, claiming that its failure to accommodate her request to stay in her ILU with private caregivers violated both the failure to accommodate under the Fair Housing Amendments Act (FHAA) and the Americans With Disabilities Act (ADA). She claimed that the policy of transferring residents on the basis of their disabilities constituted discrimination.

Upon her admission to the CCRC, the resident had signed a contract that granted the CCRC the authority to transfer the resident “to the appropriate medical unit” when she became permanently ill or enfeebled; the CCRC staff physician had determined that it was in her best interest to transfer her.

The CCRC, in brief, claimed that it should not be required to seek an exception to its policy or to the California Department of Social Service’s regulations because it could not legally delegate its duty of care to private aides, and, even if an exception could be granted, it would fundamentally alter its continuing care program.

The Court’s Ruling

The court ultimately granted the CCRC’s motion for summary judgment and held the following:

■ The proposed accommodation was not “reasonable,” as: 1.) the requested accommodation would be unlawful as California law not only prohibited the CCRC from delegating its care duties to private aides but also expressly authorized its proposed transfer of the resident to its staffed nursing floor; and 2.) it would fundamentally alter the nature of the CCRC’s business to have control of level-of-care decisions and to have the ability to authorize involuntary transfers along the continuum of care. Neither the FHAA nor the ADA require that the provider offer an accommodation that would alter the nature of its business.

■ FHAA discrimination claim. The CCRC’s transfer policy did not result in differential treatment toward or exclude a specific class of persons; the resident was being treated no differently than other residents, all of whom agreed contractually to move through the continuum of care. Essentially, the CCRC had legitimate nondiscriminatory reasons for its policy and for its transfer of the resident.

■ ADA discrimination claim. In order to prevail on this claim, the resident would have had to show that her disability was one factor in the alleged discriminatory treatment. The court found that the transfer policy and decisions to transfer residents were based specifically on compliance with state regulations and upholding its continuum of care plan; the motivation behind the transfer was compliance with policy and not, as the resident had argued, the disabilities themselves.

The Herriot case ultimately settled, and the resident agreed to move out of the CCRC.

Treatment Of Residents In Communal Areas

Another tricky issue arising in the context of CCRC management is the separation of residents with disabilities from healthier ones in communal areas such as dining rooms.

In Hyatt v. Northern California Presbyterian Homes, a case in the U.S. District Court of the Northern District of California, a resident claimed that the policy of banning the use of walkers in the communal dining room constituted discrimination under the FHAA, the ADA, and the relevant California statutes.

Specifically, the dining room had two sides: one with wait staff and a dress code and one with a buffet side. Residents using walkers were to give them to staff who would store the walkers during the meal, thus preventing residents from using their walkers to access the buffet.

The resident alleged that she discussed possible accommodations with the CCRC, which in turn granted her access to the buffet tables, but only after 5:45 p.m., an offer she did not accept.

In its answer, the CCRC admitted that it was its “general practice” to “store walkers once the resident had been seated in order to eliminate the tripping hazard they represent.” It also asserted that the resident’s requested modifications were not feasible, would fundamentally alter the nature of its services, and would impose an undue financial hardship upon the CCRC. This case eventually settled.

Wheelchairs And Walkers

In a similar case, the Colorado Court of Appeals held in Weinstein v. Cherry Oaks Retirement Community that a policy requiring residents who used wheelchairs or walkers to transfer to ordinary chairs when taking meals in the communal dining room violated the Colorado Fair Housing Act (which is almost identical to the FHAA).

The facility, at the trial court level, argued that wheelchairs in the dining room would violate the city fire code, that state and local regulations required such a transfer, and that the policy would help to determine eligibility to remain at the facility.

The court held that the facility did not present a legitimate reason for its transfer policy and had not shown that a reasonable accommodation could not have been made.

Interestingly, the trial court found that the “real reason” for the policy was to maintain a “disability-free” atmosphere; facility personnel had said the wheelchairs in the dining room did not “look good.”

Recently, the New York Times wrote about a CCRC in Norfolk, Va., that had enacted a policy making three dining facilities off limits to all but independent living residents. The CCRC’s executive director told the New York Times that the policy was enacted to prevent overcrowding and that the policy of letting residents of varied disabilities dine together violated Virginia regulations and left it vulnerable to lawsuits or to revoked licenses.

The resident’s attorney believed that the policy violated the FHAA, the ADA, and Virginia law.
In light of the uproar that ensued, the CCRC ultimately retracted the policy; the new policy provides that any resident willing to sign a liability waiver, produce a doctor’s consent form, and pass a simple health screening can eat anywhere in the building.

Ensure Compliance With FHAA, ADA

A CCRC should ensure that its policies comply with (along with the relevant state statutes and regulations) the dictates of the FHAA and the ADA.

Any policy treating sicker residents differently from healthier residents in connection with access and/or rights to communal areas should be carefully scrutinized.

CCRCs should attempt to find reasonable accommodations to meet residents’ needs in a way that does not fundamentally alter the CCRC’s services or impose an undue administrative or financial hardship.
Most importantly, there are no hard and fast rules in this developing arena, and a CCRC should stay apprised of the latest legal developments.
Andrew I. Bart is an attorney with Tenzer and Lunin, a New York City law firm. He may be reached at (212) 262-6699 or at