Housing

Disability Discrimination in Housing

Older Americans often experience discrimination in housing. Whether it be a housing provider questioning a resident's ability to live independently or a nursing home claiming to be unable to meet a resident's needs, seniors face housing discrimination issues particular to their age and often their disabilities. Federal statutes such as the Fair Housing Act, the Americans with Disabilities Act, and the Rehabilitation Act all provide clear protections for Americans with disabilities. Those protections aren't necessarily afforded to seniors looking for housing options due to competing federal and state legislation and industry practices, often unsupported by the law in any way.

There are particular risks for disabled seniors when it comes to housing discrimination of which advocates should be aware.

1. In many cases, transitions in housing in older age reflect changing life circumstances. Those changes may include the death of a partner, failing health, limited mobility, or economic changes. The immediacy of these changed circumstances can make seniors vulnerable either by direct effect, as in compromised health, or as a result of trauma or stress. Individuals and their families may be pressured to offer medical information or to accept a housing provider's policies, even when those requests or decisions are against the law.

This issue is an important one when considering the dearth of case law applying civil rights statutes to this type of discrimination. Even when a person has been subjected to a discriminatory practice, their main priority may be gaining access to the facility as opposed to challenging their practice as a violation of federal discrimination law. Choices about pressing to enforce the law must be made considering not just a client's rights but also their personal desired outcome.

2. There can be a tenuous line between a person's right to housing free of discrimination and a facility's medical responsibilities under the law. It is important to get a clear picture of a client's medical situation in order to know whether they are being treated unfairly because of a disability or if the landlord/housing provider is acting within their rights. For example, a tenant who has a mental illness may not be discriminated against based on their disability under the Fair Housing Act. If the person's mental illness makes them a direct threat to others or to the belongings of others, however, a landlord would be within their rights to evict a tenant based on their disability. An assisted living facility's demand that a person move on to a nursing home may be discrimination, or it may be grounded in an appropriate reading of the law. It is critical to read civil rights laws like the FHA and ADA along with federal and state regulations controlling a facility's medical responsibilities (see the Federal Regulation of Quality of Care, below).

3. Stereotypes and societal perceptions can impact a client's situations in many ways, one of them being their advocate's reaction to their situation. It is important as an advocate not to operate under preconceived notions about what elderly people and people with disabilities are like. Not all older people are sweet or parental, and not all disabled people are meek or dependent. "Disability" runs the gamut from the obvious to the imperceptible. There is as wide a range of what being elderly means. Misconceptions stand in the way of appreciating the client as another adult, and diverts focus from their legal rights.

EXAMPLE: Personal Testimony as to Housing Discrimination

Resources Online:

These sites are good resources for legal and social research on housing rights and potential issues concerning disability discrimination.

HUD

HUD stands for US Department of Housing and Urban Development. This government agency is responsible for enforcing and interpreting the Fair Housing Act (listed below). In searching for materials concerning housing and discrimination, this site has a Fair Housing tab, as well as a search option for more specific terms.

Bazelon

The Judge David L. Bazelon Center for Mental Health Law has been the leading advocacy resource for people with mental disabilities. The Center participates in litigation, legislation, and publication in its efforts to protect the legal rights of individuals with mental illness. This site has an "Issues" drop-down menu with a housing option, as well as a search option.

Department of Justice

The Department of Justice is the agency led by the US Attorney General. This site has a search option.

WESTLAW/ LEXIS NEXIS

Another important resource in researching any issue that involves an agency (HUD, the DOJ, Social Security Administration, Centers for Medicare and Medicaid Services) are the administrative materials available on legal research sites. On Westlaw, administrative materials can be accessed through the "administrative materials section" or through the directory feature. On Lexis Nexis, you can access administrative materials through Federal Legal- U.S. > View my Sources > Administrative Agency Materials (on the right-hand side). It can be very important to understand the intent of the agency in choosing a specific term or definition. Their intent can bolster the case law available to make a stronger case when a client has been discriminated against. Their notes and internal hearings may be very useful in aiding to develop a deeper understanding of meaning and context.

EXAMPLE: DOJ's Technical Assistance Manual on the Public Accommodations clause of the ADA

Papers:

For the Rest of Their Lives: Seniors and the Fair Housing Act

This article by Robert Schemm and Michael Allen explores the ways in which the FHA and other federal housing laws affect seniors.

Fair Housing is Good Medicine: Applying the Fair Housing Act's No-Inquiry Regulation When Housing and Health Care Are Provided Together

Eric Carlson's article establishes the applicability of the no-inquiry policy of the FHA to nursing home admissions practices.

Disability Discrimination in Long Term Care: Using the Fair Housing Act to Prevent Illegal Screening in Admissions to Nursing Homes and Assisted Living Facilities

Another article by Eric Carlson, this piece focuses on the screening procedures conducted by long term care facilities and their legal responsibilities under the FHA.

Statutes:

Fair Housing Act

Rehabilitation Act

Americans with Disabilities Act

Title III of the ADA- Public Accommodations

This section of the ADA is particularly relevant with respect to discriminatory practices in assisted living facilities. Also check the public accommodations section of your state's Human Rights Act in cases like these.

Nursing Home Reform Act of 1987(OBRA) [42 U.S.C. §§ 1395i-3]

Federal Regulation of Quality of Care

Cases:

Wagner ex. rel. Wagner v. Fair Acres Geriatric Center

Wagner is a critical case for establishing that nursing homes have a burden of reasonable accommodations in their admissions process in addition to the accommodations required during the term of the residency. The claim in this case was brought under the Rehabilitation Act of 504. The 3rd Circuit court decided the case in 1995, and held that denial of a woman with Alzheimer's based on her behavior had to be substantiated by evidence that they couldn't reasonably meet her needs without undue burden or fundamental alteration to their program. They also noted the Congressional intent behind the Rehabilitation Act, similar to that of the FHA and ADA, that courts interpret the statute liberally to the effect of preventing discrimination.

Hovsons, Inc. v. Township of Brick

Hovsons is a case that holds the FHA applicable to long term care facilities. The analysis hinges on the meaning of the word "dwelling" under the FHA. Dwelling's definition includes the word "residence," and residence is defined here by two elements: 1) whether or not the person intends to reside their for a prolonged period of time and 2) whether or not the person considers the dwelling somewhere to return. Analyzing a nursing home, the court found that people very often spend the rest of their lives in a long term care facility and consider it the dwelling to which they'll return upon leaving.

Note: This interpretation is also promulgated by HUD at 59 Fed. Reg. 33, 364 (June 28, 1994).

Hahn ex. rel. Barta v. Linn County, Iowa (130 F. Supp. 2d 1036, Iowa 2001)

Hahn is an important case for the establishment of a group home as a public accommodation, an argument helpful in making the same case for assisted living facilities. The critical language is "Title III of the ADA prohibits any person who owns, leases, or operates a place of public accommodation from discriminating against an individual on the basis of that individual's disability." (42 U.S.C. § 12182(a) (1994)). The court said that there was no dispute that for the purposes of the ADA, the operator of the group home was a private entity providing public accommodations.

Note: Another good case for the application of Title III of the ADA to assisted living facilities is Lindgren v. Camphill Village Minnesota, Inc.