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Introduction
A recent case may require residential health care providers—particularly continuing care retirement communities (CCRCs)—to carefully evaluate policies that could restrict resident access to facility amenities based on a resident’s level of care. In a recent consent order with the U.S. Department of Justice (DOJ), Harbor’s Edge, a Norfolk, Virginia CCRC, settled allegations that the facility was in violation of the federal Fair Housing Act (FHA). 1
The Complaint alleged that the facility employed discriminatory policies and practices in violation of the FHA by restricting assisted living and nursing facility residents’ access to independent living dining rooms and limiting attendance by such residents at marketing and other events. DOJ also alleged discrimination against non-ambulatory residents due to the CCRC’s requirement of a non-refundable deposit and purchase of liability insurance for the use of motorized wheelchairs and scooters. The CCRC defended its policies as reasonable to ensure the health and safety of its residents. Nevertheless, Harbor’s Edge agreed as part of the settlement to adopt new policies that would balance the facility’s health and safety concerns with FHA requirements and the protection of residents’ rights to the satisfaction of DOJ. 2
Although Harbor’s Edge is a CCRC, the issues involved could apply in any healthcare setting where residents of different levels of care congregate or in any facility that has policies permitting or limiting the use of motorized mobility devices.
Dining Rooms & Events
DOJ’s allegations stemmed from a 2011 Harbor’s Edge policy that limited assisted living, memory care, and nursing facility (collectively “healthcare center”) residents’ access to dining facilities and events located in the independent living portion of its community. The facility revised this policy several times following initial implementation, but all versions restricted access by at least some healthcare center residents to varying degrees.
The DOJ cited all four variations of the policy in its complaint against Harbor’s Edge. The most restrictive version of the policy prohibited all healthcare center residents and their guests from eating in any of the independent living dining rooms and from attending any events held in the independent living building. The least restrictive policy variation—and the one in place at the time of the Complaint—allowed any resident of the healthcare center to take meals and attend non-marketing events in the independent living building if they passed a health screening, obtained physician consent, and signed a release of liability. The facility asserted that it implemented the policy in response to “medical incidents involving Assisted Living and Nursing residents in the [independent living] dining room ….” DOJ alleged that the policies violated FHA’s prohibition of discrimination in the provision of services or facilities on the basis of disability. Such discrimination could include “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.” 3
As a remedy for the alleged violations, DOJ required Harbor’s Edge to adopt new policies governing resident access to amenities. The Harbor’s Edge Consent Order and the newly imposed policy demonstrates that the DOJ is mindful of the particular challenges of balancing FHA rights with the need to protect residents from preventable harm and comply with regulatory requirements. Dining rooms are often operated and staffed in accordance with regulatory criteria applicable to a particular level of care. The potential risk to residents requiring assistance or supervision with meals is especially heightened with regard to independent living dining rooms, which may be largely unmonitored. The policy also explains that special diets are not offered in all dining rooms, and intake cannot be appropriately monitored and documented. 4
The Consent Order policy attempts to balance these concerns with residents’ rights to equal access to services by acknowledging a baseline right to eat in a dining room and participate in facility events, but subjecting that right to reasonable conditions and restrictions. Conditions to dining room access and use contained in the Order’s policy include:
- Abiding by any required dress code, adhering to reservation and guest policies, and complying with all other applicable rules and regulations;
- Notifying the resident’s assigned dining room of the intent to eat in a different dining room no later than during the preceding meal; and
- Arranging for a private duty aide to accompany and assist the resident, as needed.
The new policy also allows Harbor’s Edge to require all residents to execute a Release of Responsibility for Leave of Absence form prior to using a residential dining room or attending a residential event, and residents may be required to sign an Against Medical Advice (AMA) form and Liability Release. The policy also provides that the facility may restrict dining room and/or event access for reasons such as contagion or infection or based on other medical conditions that limit the resident’s ability to eat in a particular dining room or attend an event in a safe and non-disruptive manner. A nurse, physician, or the Level of Care Committee may impose the restriction but must promptly refer the resident to the FHA Compliance Officer, who is required to assist the resident in identifying potential reasonable accommodations and coordinate a follow-up review with the Committee or individual who imposed the restriction.
Establishment of FHA Compliance Officer & Level of Care Committee
The Order further requires that Harbor’s Edge establish a Fair Housing Act Compliance Officer and a Level of Care Committee to ensure both the monitoring and enforcement of FHA standards and appropriate safeguards based on the level of care individual residents require. The facility must now document all evaluations of a resident’s abilities related to dining, attending events, and operating motorized wheelchairs or scooters and any requests for reasonable accommodations.
Motorized Mobility Devices
The Consent Order also addressed Harbor’s Edge’s concerns involving motorized wheelchairs; it provides that Harbor’s Edge may not require residents to pay a non-refundable deposit or purchase liability insurance as a condition to operating a motorized wheelchair or scooter on the premises. The facility may, however, require a resident to pay for any injury or damage actually caused by a failure to operate the device safely or otherwise in accordance with facility policies. Under the Consent Order policy, the facility may prohibit motorized devices from an area of the facility only if “they pose a direct threat to either the safety of the individual or others or would result in physical damage to the property of others, including Harbor’s Edge.” The policy also outlines safety provisions a resident must follow, including adhering to speed limits, maintaining safe distances, following parking requirements, and keeping entrances and exits clear. Finally, the policy requires that residents sign a Motorized Mobility Aid Agreement, acknowledging their understanding and willingness to abide by all of the policies and procedures governing the use of these devices.
The facility cannot require a resident to prove the need for a motorized mobility device, but the Consent Order policy outlines certain events that allow the facility to require the resident to prove his/her ability to safely operate such a device.
Conclusion
Long-term care facilities should consider reviewing their current written policies and/or unwritten practices related to any restrictions on residents’ movement and access to common areas within the facility. The policies and procedures described and included in the Harbor’s Edge Consent Order may serve as helpful guides for facilities in reviewing and updating their own practices, but adoption of such policies and procedures does not guarantee FHA compliance. Legal counsel can also assist facilities in assessing the relative risks to resident health and safety, on the one hand, and claims of discriminatory or overly restrictive practices, on the other. 5
Should you or your organization have any questions regarding FHA compliance in the patient care setting, please contact Peter Mellette (Peter@mellettepc.com), Harrison Gibbs (Harrison@mellettepc.com), Nathan Mortier (Nathan@mellettepc.com), or Nicole Hartz (Nicole@mellettepc.com) or call Mellette PC at (757) 259-9200.
Thanks to Cait Riccobono, University of Richmond Law ’15 for her assistance in preparing this advisory.
This Client Advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.
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1 42 U.S.C. § 3604(f).
2 The Consent Order is available through the DOJ website and by clicking here.
3 42 U.S.C. § 3604(f)(3)(B).
4 Additional risks and complications facilities should consider may include whether information regarding dietary restrictions, allergies, and other relevant conditions for all residents are readily accessible by staff in all parts of the facility or community. Residents also have the right to enjoy meals and social events free from disturbance and disruption by inappropriate behavior.
5 In light of violations cited by DOJ at Harbor’s Edge, it is prudent to also keep in mind Section 1557 of the Affordable Care Act, which may permit an individual to bring a private right of action if facility policies have a disparate impact on them. Before Section 1557, the U.S. Supreme Court held an individual member of a protected class could only bring a claim for intentional discrimination and not disparate impact (i.e., circumstances that result in treating individuals differently even if the discrimination is not intended). The practical effect of this distinction is that an individual could not bring a claim against a facility for facially neutral policies, even if those policies had the unintended consequence of treating people differently on the basis of factors such as disability, race, or payor source. Facilities might now be liable strictly on the basis of how their policies affect individual residents whether they intend discrimination or not. Cases regarding the scope of Section 1557 in the lower courts have reached different conclusions about whether and to what extent Section 1557 modifies existing case law. The issue is likely to reach the U.S. Supreme Court in the foreseeable future.
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