How the Fair Housing Act Shelters the Elderly From Discrimination

One of a series of reports on NAELA's Boston Institute

The Fair Housing Act offers particularly strong protection against discrimination for elderly clients living in assisted living or continuing care retirement communities, attendees learned at a session of the National Academy of Elder Law Attorneys' National Aging and Law Institute inBoston, held November 10-12.  The session, titled "Representing Residents of Assisted Living and CCRC’s: Using the Fair Housing Act and the ADA in Service-Enriched Communities to Further Community Integration," was led by two experienced fair housing litigators, Susan Ann Silverstein with AARP Foundation Litigation, and Michael G. Allen with the Washington, D.C., firm of  Relman, Dane & Colfax PLLC.

Both the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA) are based on the principal of choice, Silverstein and Allen said.  The ADA covers employment, public services, and public accommodations, with nothing specific to housing.  Under the ADA, state and local governments have a duty to provide services in the community if appropriate to the recipient's needs.  Individuals qualify for protection if they have an impairment that limits major life activities, and 55 million people in the country meet this definition, many of whom are elderly.

Under the ADA, every governmental program must provide services in the most integrated setting possible, “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.”  28 C.F.R. pt. 35, App. A, p. 450  Community integration means that people with disabilities, even if old, should be able to live where they want and to interact with people without disabilities.

Affirmative Obligations for Those With Disabilities

Silverstein and Allen said the FHA (42 USC § 3604 et seq.) is more likely to apply to elder law clients who are in private assisted living and continuing care retirement communities (CCRCs). The 1988 Fair Housing Amendments Act added disability as a protected class and added three affirmative obligations regarding people with disabilities.  § 3604(f)(3) provides that facilities:

1.  Must permit reasonable physical modifications at resident’s expense.
2.  Must make reasonable accommodations in housing rules and policies.
3.  Must include accessibility features in the design and construction of new (after 1991) multifamily dwellings.

Four-unit or smaller owner-occupied buildings are exempted from these requirements.  These rules apply to CCRCs, assisted living facilities and nursing homes, whether or not receiving government funding. 

Enforcement can be through the U.S. Department of Housing and Urban Development (HUD) and local agency procedures, local fair housing associations, or lawsuit.  The FHA also provides for a private right of action.

The FHA prohibits inquiry into disability or extent of disability unless the housing is only for people with disabilities and the inquiry is needed to make sure the applicant meets the requirement.  In that case, the inquiry must be made of all applicants. 

Residents moving into a CCRC cannot be required to waive rights under the FHA, such as letting the medical director determine what level of care they will live in.  Such a provision is void as against public policy.

Both the ADA and the FHA are fee-shifting laws, which means that the court awards attorney fees to the winning party.

Silverstein and Allen discussed a number of recent cases, including Herriot v. Channing House (U.S. Dist. Ct.,N.D.Cal., No. C 06-6323 JF (RS), Jan. 29, 2009), involving a CCRC that tried to force one of its residents to move from her private apartment to an assisted living unit.  The resident alleged, among other things, that the CCRC's policy violated the FHA and the ADA, and both of the presenters' organizations co-counseled.  The case recently settled.

NAELA is offering the 2011 National Aging and Law Institute and the Advanced Elder Law Boot Camp on DVD (including seminar handouts) for a special price until December 31, 2011.  The recordings are audio-synced with speaker presentations.  The DVDs will ship in early January.  Go to www.naela.org/store or contact naela@naela.org for more information.