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OO 2016 by the American Seniors Housing Association. All rights reserved The text portions of this work may not be reproduced or transmitted. in any form or by any means electronic or mechanical including photocopying. recordiny or by information storage and retrieval system without permission in writing. from the publisher, This publication is designed to provide accurate and authoritative information in regard. to the subject matter covered It is distributed with the understanding that the publisher. is not engaged in rendering legal accounting or other professional services If legal. advice or other expert assistance is required the services of a competent professional. person should be sought From a Declaration of Principles jointly adopted by a. Committee of the American Bar Association and a Committee of Publishers. Price 35 00 non members, Seniors Housing Guide to Fair Housing and ADA Compliance 1. HansonBridgett ASSOCIATION,Living Longer Better, 2 Seniors Housing Guide to Fair Housing and ADA Compliance. Seniors Housing Guide to Fair Housing and ADA Compliance 3. Introduction 4,Executive Summary 6,Use Of This Guide 8. Federal Anti Discrimination Statutes 10,I The Fair Housing Act 11.
A The 1968 Act 11,B The Fair Housing Amendments Act Of 1988 11. C Religious Private Club Exemptions 15,D Enforcement Of The Fair Housing Act 15. II The Americans With Disabilities Act 16,A Covered DisaUilities 16. B Businesses Subject to the Act 16,C ArchitecturalStandards 17. D Prohibited Discrimination 18,III The Age Discrimination Act Of 1975 19.
IV Income Discrimination 20, ABOUT THE AUTHOR V Marital Status Sexual Orientation 21. Managing Seniors Housing Discrimination Issues 22,PAUL GORDON is a partner in the. VI Advertising 23,165 attorney San Francisco law firm of. A In General 23, Hanson Britlgett LLP He is the author B Occupancy Preferences and Limitations 23. of the book Seniors Housing and Care C Human Images 24. Facilities Development Business and D Precautionary Steps 25. Operations 3d edition Urban Land VII Occupancy Criteria 25. 1998 He is a member of the A Requirements of Tenancy Reasonable Accommodation 25. Executive Board and General Counsel to B Independent Living Communities 27. the American Seniors Housing Association C Residences Providing Care 30. and is former Chair of the Legal Committee D Factors Incidental to Resident Health 35. of LeadingAge Mr Cordon s entire law E Age 40,F Use of Application Forms 40.
practice is devoted to representation,VIII Access To Facilities And Services 41. of seniors housing and long term care,A Walkers Wheelchairs and Motorized Carts 41. operators developers investors and,B Dining Rooms and Other Common Areas 43. related organizations C Transportation and Parking 47. D Swimming Pools 48,For more information visit the. www SeniorCareLaw com website Recommendations 50, 4 Seniors Housing Cuide to Fair Housing and ADA Compliance.
Seniors Housing Guide to Fair Housing and ADA Compliance 5. AS A LEADING VOICE for the nation s professional owners antl managers of seniors. housing the American Seniors Housing Association ASHA is pleased to present. this updated and expanded Fair Housing ADA Compliance Guide Fifth Edition This. publication is part of along standing communications and educational effort by. ASHA to update members with timely information about evolving issues regarding fair. housing and ADA rules court decisions and interpretations. am confident you will find this publication an invaluable and practical resource. to enhancing operational compliance We are especially fortunate to have. Paul Cordon s expertise in this area and his thoughtful comprehensive analysis. of the issues and practical approaches to making the subject matter relevant to. your day to day operations,David S Schless,American Seniors Housing Association. 6 Seniors Housing Guide to Fair Housing and ADA Compliance. Seniors Housing Guitle to Fair Housing antl ADA Compliance 7. THE SENIORS HOUSING INDUSTRY continues to Seniors housing owners and operators would be. operate under increasing scrutiny regarding its well advised to carefully review their advertising. fair housing practices Since the 4th Edition of this policies and practices regarding new resident intake. Handbook was published the U S Department of and contract termination resident contracts and. Justice DOJ the U S Department of Housing and handbooks and factors that might restrict a resident s. Urban Development HUD and other fair housing access to facilities and services and determine that. enforcement agencies and advocacy groups have they comply with federal and state fair housing laws. stepped up the level of challenges directly targeting It is important to consult legal counsel in such a. seniors housing properties for allegations of disability process as the issues can be subtle and complex. discrimination,Every organization should also have a process for. Over the past year the DOJ s focus has been to accepting and responding to requests far reasonable. challenge continuing care retirement community accommodation or modification Training for key. CCRC dining room policies that would exclude employees particularly marketing staff and operations. private caregivers and assisted living residents from managers is also important as uninformed front line. independent living dining rooms Also HUD has employees can unwittingly increase liability through. more strictly circumscribed the kinds of questions their words and actions. about a resident s health needs that can be asked, Fair housing is a contentious and rapidly evolving. by independent living providers On the other hand, area of law Executives should familiarize themselves. HUD has ruled that CCRCs may legitimately ask, with the basic issues and take action that results in a.
prospective residents questions about their health. comprehensive and thorough risk management audit for. status nptwithstandingthe Fair Housing Acts broad, their organizations To further assist you in protecting. prohibitions against disability related questions as. against risk for a discrimination claim please refer to. a condition of providing housing At the same time,the recommendations provided at the conclusion. courts struggle with the subtle dividing lines between. of this Guide,discrimination and legitimate safety policies and. practices and quality of care concerns In addition. to disability race religion marital status sexual,orientation and age are key areas in which there. may be liability, 8 Seniors Housing Guide to Fair Housing and ADA Compliance.
Seniors Housing Guide to Fair Housing and ADA Compliance 9. THIS GUIDE is designed to identify fair housing issues antl approaches to compliance. for seniors housing properties including senior apartments independent living. assisted living and CCRCs Subjects covered include federal statutory regulatory. and case law dealing with discrimination on the basis of age health care status. disability religion national origin sexual orientation income and race z Typical. operational situations for seniors housing communities such as advertising screening. and acceptance of residents access of occupants to facilities and services at the. community and relocation of residents are identified and discussed. This is a constantly expanding subject with sweeping laws that contain few details. outlining the boundaries of appropriate conduct This compliance guide is based upon. the statutory language and major case holdings and is not intended to constitute legal. advice Often the issues are so subtle and the guidance of the courts and enforcement. agencies so complex fact specific or even contradictory that it is difficult to articulate. a course of action that is clearly right under a given set of circumstances. Seniors housing owners and operators should consult legal counsel in determining how. best to minimize the risk of a discrimination claim and to respond to any actual complaint. Independent living properties unlike senior apartments usually offer hospitality services which may include. dining housekeeping transportation and recreational programs Misapplication of the term independent. living can raise disability discrimination issues see Section VII B il. The Guide does not attempt to discuss in detail the architectural standards for handicap accessibility zoning. end planning issues or state or local anti discrimination laws The issues and regulations particular to the. development and operation of skilled nursing facilities and detailed discussion of U S Department of Housing. end Urban Development HUD tenant selection standards are beyond the scope of this Guido. 10 Seniors Housing Guide to Fair Housing and ADA Compliance. Seniors Housing Guide to Fair Housing antl ADA Compliance 11. THE FAIR HOUSING ACT,A The 1968 Act, The Fair Housing Act enacted as Title VIII of the Civil Rights Act of 1968 prohibits discrimination in the. sale or rental of dwellings on the basis of race color sex religion or national origin This law applies to. all housing in the United States and is enforced by HUD whether or not the housing has been financed. with federal funds or supported by loan guarantees. Discrimination on a prohibited basis in the financing of housing provision of brokerage and appraisal. services or in the creation printing or publication of any notice statement or advertisement is also. unlawful Most of the disputes involving allegations of race or religious discrimination in the seniors. housing setting have focused on advertising and marketing practices See Section Vl. B The Fair Housing Amendments Act of 1988, In 1988 Congress adopted the Fair Housing Amendments Act to add familial status and handicap to the. list of prohibited grounds for discrimination fi,1 FAMILIAL STATUS. The familial status provisions were designed to prevent discrimination by housing providers against. families with children However the law exempts housing for older persons from the prohibition. The following kinds of housing qualify as housing for older persons. a housing provided under any state or federal program determined by HUD to be designed. and operated specifically to assist elderly persons such as housing established under the. Section 202 program or, b housing intended for and solely occupied by persons 62 years of age or older or. c housing intended and operated for occupancy by at least one person 55 years of age. or older per unit,24 USC 20004, State fair housing laws may supplement federal requirements and should always be consulted While federal law is controlling in the event o a conflict.
state anti discrimination laws that are stricter than federal requirements must be observed. Although the Act uses the terms handicap and handicapped the more widely accepted terms today are disability and disabled. 5 42 U S C 4 3604 et seq, Previously properties seeking to qualify under subpart c were also required to show that they provided significant facilities and services. specifically designod to moot the physical or social needs of older persons or that such facilities and sorvices were not practicablo Howevor the. significant facilities and services Wile was repealed by Congress on December 28 1995 Pub L 104 76. 12 Seniors Housing Guide to Fair Housing and ADA Compliance. In determining whether housing is intended and operated for occupancy by at least one person. 55 years of age or older per unit under subpart c above 1 the Secretary of HUD must find. that at least 80 of the occupied units contain at least one person age 55 or older 2 the owner. must publish and adhere to policies and procedures demonstrating such an intent although the. procedures need not be set forth in writing and 3 the owner must comply with HUD rules for. verification of age e, A new community or one converting from non seniors housing may qualify by asserting the exemption. and reserving all unoccupied units for residency by at least one person age 55 or older until at least 80. percent of the units are occupied by such a person. 2 DISABILITIES, a Definition Disabilities protected by the Fair Housing Act are very broadly defined to include any. physical or mental impairmentthat substantially limits one or more major life activities a record of. having such an impairment or being regarded as having such an impairment Debilitating conditions. such as heart disease arthritis blindness Alzheimer s disease and nonambulatory status are. examples of covered disabilities In addition clinically recognized mental and addictive conditions. such as depression and alcoholism are within the definition Current use of illegal drugs is expressly. excluded from coverage 9 but a recovering user most likely will be protected Conditions such. as HIV status that may not currently be incapacitating are covered ifthey limit or are perceived to. limit major life activities Longstanding ailments with periodic debilitating flare ups such as migraine. headaches are likely to be covered while transitory illnesses such as the flu are not 10 Federal. courts applying discrimination laws to seniors housing and care facilities have tended to find that. most or all of the residents are disabled for purposes of being protected by the laws. b Application in General The Fair Housing Amendments Act applies to all residential buildings with. living can raise disability discrimination issues see Section VII B il The Guide does not attempt to discuss in detail the architectural standards for handicap accessibility zoning end planning issues or state or local anti discrimination laws The issues and regulations particular to the

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