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Home Equity Resources, Housing and Care Options
Staff Reporters
According to Stephanie Edelstein JD; Charles P. Sabatino JD and Nancy M. Coleman MSW MA; opining in the ElderLaw Series, until relatively recently most people in this country followed a rather typical housing pattern in their later years. They either rented or owned their homes and lived alone until they were no longer physically or economically able to manage independently, at which time they moved in with family members or into nursing homes or board-and-care homes.
Elderly Housing
Housing, particularly rental housing, provided the proverbial bricks and mortar, and, with the exception of a few facilities that offered meals and some light housekeeping, little opportunity existed for older persons to receive services in their homes. Elderly tenants who were perceived by a landlord or housing manager as unable to manage on their own were evicted, frequently without due process protections, and just as frequently would end up in a nursing home. While disabled tenants in federally assisted housing programs were accorded protections against discrimination on the basis of disability, no such protections existed for residents of private housing. Few members of the legal, healthcare or aging communities, and even fewer among the elderly, were aware of those protections that did exist.
Emerging Changes
Much has changed during the last few years, in large part due to the increasing emphasis on retaining autonomy, the trend towards aging in place, and the passage of civil rights statutes, which have raised public awareness of the legal rights of persons with disabilities.
For example, for frail or disabled older persons, including medical professionals, protection against discrimination in housing can be found in three federal statutes: [1] the Americans with Disabilities Act, [2] the Rehabilitation Act of 1973 and the [3] Fair Housing Amendments Act of 1988. Of the three, only the Fair Housing Amendments Act (FHAA) is targeted exclusively to housing and within the housing area is arguably the most far-reaching.
Rehabilitation Act
The Rehabilitation Act of 1973 (the antidiscrimination provisions of which are commonly referred to as §504) is a general civil rights statute that prohibits discrimination against any “otherwise qualified individual with handicaps” in a wide variety of programs or activities receiving federal financial assistance, including housing.
FHAA
The scope of the FHAA, as it applies to housing is broader, and it covers virtually any housing activity or transaction, including both private and subsidized, apartments and single family dwellings, and prohibits discrimination against all individuals with handicaps, even if the discrimination cannot be attributed directly to the disability.
ADA
The Americans with Disabilities Act (ADA), which is having a profound effect on all elements of society, can be seen as complementing the other statutes. The ADA extends to all state and local programs the protections of §504, and also prohibits discrimination against people with disabilities in public accommodations.
Disability Defined
All three statutes use virtually the same definition of “handicap” or “disability.” Protection is extended to persons with a “physical or mental impairment which substantially limits one or more major life activities,” such as performing manual tasks, personal care, walking, seeing, hearing, speaking, etc. The definition includes persons “having a record of such an impairment”, whether or not the impairment still exists; and a person “regarded” as having such an impairment,” whether or not the perception is accurate. While age alone does not equate with disability, the symptoms and conditions of the aging process are likely to cause impairments that meet these definitions.
Addition Exempted
“Handicap” or “disability” does not include current illegal use of or addiction to a “controlled substance.” Moreover, none of the statutes require a housing provider to make housing available to an individual “whose presence would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”
Legal Purposes
The intent of these laws is to provide persons with disabilities access to and enjoyment of housing and services to the same degree as if they were not disabled. They apply from point of application throughout the tenancy. Housing providers may not maintain separate admissions standards for people who are frail or disabled, nor may they inquire about an applicant’s health or ability to live independently, unless those questions are to establish eligibility for particular programs or services.
For example, the decision to lease to a particular individual must be based on program eligibility (if appropriate) and the ability of the applicant to comply with the terms of the lease, whether independently, with the assistance of a third party, or as a result of a reasonable accommodation by the provider. A prospective property owner may not require an older person to have a “sponsor,” or “guarantor,” a practice common to many senior housing programs.
Assessment
In recent years, courts have found the following policies to be discriminatory: requiring residents who must use walkers or wheelchairs to transfer to regular chairs when eating in the common dining room; failing to provide accessible parking spaces for disabled tenants; and refusing to modify a “no pet” rule for tenants with disabilities who need guide dogs or service animals.
Link: www.HealthDictionarySeries.com
Conclusion
And so, your thoughts and comments on this Medical Executive-Post are appreciated.
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Filed under: Financial Planning, Health Insurance, Health Law & Policy, Insurance Matters, Risk Management | Tagged: ADA, Americans with Disabilities Act, charles sabatino, elder housing, elder law, eldercare, Fair Housing Amendment, FHAA, nancy coleman, Rehabilitation Act of 1973, stephanie edelstein | 1 Comment »
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