Housing choice and equal opportunity are part of the American Dream, and where we live has a profound impact on who we are and what opportunities we will enjoy. Since the passage of the Fair Housing Act (FHA) in 1968, we have taken it for granted that we can live wherever we desire and that it is wrong for others to artificially limit our choices.
It should come as a surprise, then, that an entire sector of the housing market appears to be operating outside the law, adopting and enforcing policies that limit housing choices for millions of Americans. More surprising still is the fact that the victims of discrimination are seniors, a group whose “gray power” has reshaped the political and economic landscape in virtually every area of modern life. This article examines the state of FHA enforcement across a continuum of senior housing options, finding a rising tide of consciousness about civil rights enforcement and evidence that seniors are increasingly resorting to litigation to protect their right to choose housing that meets their needs.
The Fair Housing Act
Almost all housing in the country (including the variations described in this article) is governed by the FHA, whether or not the units are supported with government funds. The FHA prohibits discrimination on the basis of race, color, religion, national origin, sex, disability, and familial status (i.e., the presence of children in the household).
Although age is not among the FHA’s “protected” classes, the correlation between age and disability is unmistakable in a population whose life expectancy has risen dramatically as a result of the scientific and medical breakthroughs of the late twentieth century.
There are a few reported cases involving discrimination in senior housing on the basis of race, national origin, or religion. In general, these have been decided in a fashion that sweeps away artificial barriers and expands choice for victims of housing discrimination. Because disability crosses racial, religious, and economic boundaries, however, the most significant FHA litigation in senior housing will probably involve claims of disability discrimination. The broad definition of disability in the statute makes this outcome even more likely.
The FHA employs the outmoded term “handicap,” which it defines as “a physical or mental impairment which substantially limits one or more . . . major life activities . . . , a record of having such an impairment, or . . . being regarded as having such an impairment.” 42 U.S.C. § 3602(h). The first element of the definition is estimated to cover as many as 50 million people who currently live with such impairments. The second element reflects congressional concern that people who have recovered from accidents, illnesses, and addiction disorders do not suffer discrimination because of their histories. The final element represents an attempt by Congress to prevent discrimination against people who incorrectly are thought to have disabilities.
Further, the FHA requires landlords to provide “reasonable accommodations”—to change rules, policies, and practices when necessary to afford a person with a disability an equal opportunity to live in and enjoy the benefits of a particular community. That means rules governing admission, retention, and eviction may need to be waived or modified to ensure that they do not constitute barriers to the full participation of people with disabilities.
Senior Housing Options
As little as a generation ago, when advancing age, frailty, or disability forced a senior from her home, she had few options. If a “retirement home” could not meet her healthcare or personal assistance needs, she would likely find herself in a nursing home. The anxiety and fear surrounding such a move were often so overwhelming that seniors would do anything to avoid this outcome. Many who were forced to move experienced isolation and lost the will to live. See generally CLAUDE AMARNICK, DON’T PUT ME IN A NURSING HOME (1996).
Much has changed in the last twenty-five years. The senior housing industry now offers hundreds of thousands of units in settings other than nursing homes. In an effort to provide necessary or desired support services and amenities, the industry has developed the following options:
• Senior apartments: Rental units designated for people over the age of fifty-five. These apartments may have social activities and amenities that appeal to seniors interested in downsizing their housing and related maintenance obligations.
• Retirement communities: Homeownership communities designed for those over sixty-two whose health or personal care needs are minimal.
• Assisted living centers (ALCs): Residences, subject to some form of state licensing and oversight, that offer private occupancy units with on-site health and personal assistance services. Residents typically pay an entrance fee as well as a monthly fee reflecting the level and types of services they receive.
• Continuing care retirement communities (CCRCs): A continuum of residential and care options located on a single “campus,” which permits residents to move from their own apartments to assisted living and nursing home rooms as their care needs change. Many CCRCs involve “life care” contracts where, for an established entry fee or a monthly assessment, a resident receives whatever health or personal care services are needed. Although the range of “housing plus care” options has expanded, the industry has paid scant attention to the resulting civil rights concerns. The senior housing industry says that its decision to “bundle” housing with health- care or personal assistance ser-vices responds to consumer demand, but it also imposes potentially conflicting legal obligations. Here are just a handful of the most common conflicts playing out in senior housing today, with citations to the leading cases suggesting the practices may be illegal under the FHA:
• Inquiry into disability: Although the FHA explicitly prohibits inquiries concerning mental or physical disabilities, state law governing ALCs, CCRCs, and nursing homes may require providers to make such inquiries. The Supremacy Clause assures that federal law will supercede conflicting state law, but senior housing providers and their residents face the consequences of this conflict on a daily basis. Robards v. Cotton Mill Assoc., 713 A.2d 952 (Me. 1998).
• Excluding certain disabilities: To mitigate the costs of providing care to residents who are frail or have disabilities, providers may seek to exclude certain mental or physical conditions from their life care contracts or may seek to exclude people with specified mental or physical impairments altogether. Such decisions may be consistent with the providers’ business models but also may amount to intentional discrimination on the basis of disability. Baggett v. Baird, 1997 WL 151544 (N.D. Ga. Feb. 18, 1997).
• “Independent living” requirements: Prior to 1988, federal law did not prohibit private sector housing discrimination on the basis of disability. As a consequence, many landlords explicitly required that residents be “capable of independent living.” As implemented, these policies generally excluded applicants who needed assistance with the activities of daily living and imposed subjective provider judgments about who could or could not fulfill the basic obligations of tenancy. Although neutral on their face, such policies have a profoundly harsher effect on people with disabilities. Federal courts have struck down such policies, yet a growing number of senior housing providers continue to apply them in a manner that unlawfully excludes people with disabilities and people regarded as having disabilities. Cason v. Rochester Housing Auth., 748 F. Supp. 1002 (W.D.N.Y. 1990).
• Discharge and transfer: Every day, providers make decisions to move residents of ALCs or CCRCs to “higher levels of care.” Such a decision may be motivated by a resident and his or her family, may follow the conclusion that state law does not permit the resident to remain in her current setting, or may be the product of a business decision by the provider that the resident’s care is becoming too costly. If these providers are subject to the FHA and may not discriminate on the basis of disability, how can residents be moved against their wills? HUD v. Strawberry Point Lutheran Home for the Aging, 2003 WL 1311336 (HUD ALJ Mar. 5, 2003).
The new models do offer a wider range of choices than in the past, but the industry remains wedded to a philosophy that is at odds with housing choice for seniors. Although today’s seniors may have been slow to claim their rights under the FHA, there is growing evidence that they will no longer take discrimination sitting down. Gray Power
Until the late 1980s, few seniors and their advocates had housing issues on their radar screens. The passage of the Fair Housing Amendments Act in 1988 and the Americans with Disabilities Act (ADA) in 1990 reenergized a civil rights consciousness in housing among younger people and seniors alike. Seniors have begun to proclaim that physical and mental disabilities should not interfere with their housing choices. The mounting evidence of this phenomenon includes the following cases:
• Niederhauser v. Independence Square Housing, Fair Housing-Fair Lending Rptr. ¶16.305 (N.D. Cal. Aug. 27, 1998): This case, brought in federal court in California, challenged a senior rental community’s policies, which included illegal inquiries about disability and eviction of residents who were deemed incapable of living independently.
• United States v. Resurrection Retirement Community, No. 02-CV-7453 (N.D. Ill. Oct. 17, 2002 (consent order), available at http://www.usdoj.gov/crt/housing/documents/resurrectsettle.htm (last visited Feb. 18, 2004): The U.S. Department of Justice brought a lawsuit in federal court to challenge both illegal inquiries and a requirement that applicants subject themselves to a medical assessment as a condition of admission. The court entered a consent order enjoining the practices and awarding damages.
• HUD v. Strawberry Point Lutheran Home for the Aging, 2003 WL 1311336 (HUD ALJ Mar. 5, 2003): Settlement of this FHA administrative complaint required the provider to establish new transfer policies that recognize the right of seniors with disabilities to “age in place” with the assistance of outside service providers.
• Symons v. City of Sanibel, No. 2:03-CV-442-FtM-29SPC (M.D. Fla. Nov. 3, 2003) (settlement agreement on file with author): This federal court action in Florida resulted in wholesale changes to a city ordinance and to policies of the city’s affordable housing program to delete all requirements that senior residents be “capable of independent living.”
• Casaregola v. Cooperative Retirement Services of America, Inc., SA-04-CA-0114-OG (D. Tex 2004 Feb. 4, 2004) (on file with author): A lawsuit filed recently in Texas challenges the practices of a senior apartment complex seeking to remake its image as an “active seniors” or “independent living” community; to do so it evicted as many as twenty-five residents on the basis of “wellness examinations” conducted by untrained staff members.
In the face of industry policies that infringe on privacy and may seek to exclude applicants because of agerelated disabilities, seniors have begun to assert their rights to choose their own housing and to remain there until they are ready to move elsewhere. Recognizing that geographic location and physical quality of housing are important components of well-being and opportunity, seniors are more likely than in the past to fight to retain housing that meets their needs, even when housing and care providers might prefer that they move to a higher level of care. We have begun to see the first effects of this culture clash as courts have become the forum of choice for challenging practices that diminish the right to choose.
Within the next decade, the first baby boomers will be entering the senior housing market. Unlike their parents, who came of age before the civil rights and consumer empowerment era, these seniors will demand much more in the way of autonomy and self-determination. We can expect the boomers—a generation accustomed to shaping public policy through advocacy and purchasing power—to make their voices heard in the courts and in the marketplace.
The renewed fervor in this area gives proof to an old adage: We really are where we live.
Stats: Nursing Homes
• Number of nursing home residents in 1999: 1.6 million Of this number,
• 90% were 65 or older
• 72% were female
• 57% of the women were widows
• Percentage of for-profit nursing homes located in Midwest and South: 67%
• Number of nursing homes cited for abuse, 1996: 1 in 9
• Number of nursing homes cited for abuse, January 1999 to January 2001: 1 in 3
Sources: House of Representatives, Abuse of Residents Is a Major Problem in U.S. Nursing Homes, www.house.gov; Amer. Ass’n of Homes & Services for the Aging, www.aahsa.org; Nat’l Nursing Home Survey, 1999 Summary, Nat’l Center for Health Statistics, Centers for Disease Control and Prevention