HUD Policy Conference, New Orleans

July 19-23, 2010

LIVING WITH DIGNITY AGING IN PLACE

Contact Information:

Julie Nepveu, Esq.Senior AttorneyAARP Foundation Litigation601 E Street, NWWashington, DC 20049Email: JNepveu@aarp.orgWeb: www.aarp.orgV 202-434-2075TTY 1-877-434-7598

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Living with DignityAging in Place

>What are the fair housing issues implicated by an aging population?

>Is the fair housing community prepared to address the needs and issues that may affect the aging population?

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Aging in Place

The vast majority of older people want to age in their homes and communities for as long as possible. 80% of the 50+ population are homeowners. > 20% of people 50+ are renters.

>Health reasons become increasingly more important as a reason to move as people age.

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Aging ≠ Disability

>Older people often regarded as having disabilities

> Incidence of disability increases as people age.

>40% of those 65 and older have a disability that affects one or more activities of daily living.

>For people over 75, poor health, frailty, and concern about physical safety increase significantly.

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Housing Choice

> Increased disability does not necessarily dictate a particular housing choice

>Disability related needs can generally be met in the individual’s own home as well as in an independent or assisted-living facility, CCRC, or nursing home.

>Aging in place (or community) helps to maintain social ties and engagement, which are associated with better physical and mental health among people of all ages.

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Are We Ready?

>Most people do not consider whether a home or community will meet their needs until it is obvious it does not. By that time, it is difficult to do make necessary changes, such as:

> Moving elsewhere> Making home modifications> Influencing the way the community develops

around them

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Aging Population

> Increasing proportion of the population will be over 65 years old:

• 35.0 million (12.4%) in 2000 (1 in 10 people)

• 39.7 million (13.2%) in 2010

• 53.7 million (16.5%) in 2020

• 70.0 million (20.0%) in 2030 (1 in 5 people)

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Source: United Nations Department of Economic and Social Affairs, Population Division. World Population Prospects. The 2004 Revision. New York : United Nations, 2005

By 2050

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The number of people:

>over 65 will more than double

>over 75 will triple

>over 85 will quintuple

>over 100 will septuple (approaching 1M)

WAKE UP!

46 % of communities have not yet started to plan for an aging population.

Those communities that have started planning have not made major progress.

(Source: The Maturing of America—Getting Communities on Track for an Aging Population)

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Top Planning Challenges1. Housing

• Availability• Affordability• Accessibility

2. Financial

3. Access to Affordable Health Care

4. Transportation, providing services to scattered rural population, engaging healthy people

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Prepare NOW

>The longer we wait, the more difficult it will become to make the changes necessary to create environments for successful aging

• In 1935 – 16 workers to every 1 person over 65.

• In 2000 - 5 workers to every 1 person over 65.

• In 2030 - 2 workers to every 1 person over 65.

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The Fair Housing Act

> Applies to all “dwellings”: “any building or portion thereof which is occupied as, or designed or intended for occupancy as, a residence for one or more families.”

> Prohibits discrimination on the basis of race, color, religion, national origin, sex, familial status and disability

> Age is not a protected class.

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Disability Discrimination

> Intentional discrimination> “Disparate impact”>Reasonable accommodations>Reasonable modifications>Design & construction accessibility

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Fair Housing Amendments Act of 1988

> “[C]lear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals.”

> H.R. Rep. 100-711 at 18

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Underlying Principles

>Equality

> Integration

>Choice

> Individuality

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Principles: Equality

> People with disabilities should have an equal opportunity to live where they want, and not be subjected to rules or requirements that are different from those applied to people without disabilities.

• OK to permit preferences for people with disabilities.

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Principles: Integration

>People with disabilities are entitled to live in communities with their neighbors.

• Integration does not just mean physical presence in a neighborhood. It includes participation in community services and activities.

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Principles: Choice

>People with disabilities are entitled to choose where they want to live.

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Principles: Choice

>People with disabilities are entitled to choose where they want to live.

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Principles: Individuality

>Housing providers must respect the unique needs and circumstances of individuals with disabilities and offer reasonable accommodations to meet these needs when requested.

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Congress and HUD Sought to Make Disability Private

>Affirmation that disability is a private matter, which should remain private unless and until applicant/resident chooses to disclose:

• Seeking preference in admission• Seeking disability-related rent disregard• Seeking reasonable accommodation

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Congress and HUD Sought to Make Disability Irrelevant

> Landlord can ask a person with a disability (PWD) same questions asked of all applicants that relate directly to tenancy:

• Can you pay the rent?• Can you get along with your neighbors?• Can you fulfill housekeeping obligations?• Can you obey the lease and the law?

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Disability Inquiry

>Housing providers are not allowed to make inquiries in order “to determine whether an applicant . . . has a handicap or to make inquiry as to the nature or severity of a handicap of such a person.”

>24 CFR § 100.202(c)

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Fair Housing Violations> Fair Housing complaints related to disability

have increased dramatically.> Independent living requirements and

advertising limit housing choice.

> Housing providers may refuse to make reasonable accommodations or permit modifications.

> Multifamily housing built out of compliance with design and construction standards.

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Fair Housing Violations> Nursing homes and housing with services

discriminate based on disability in both admissions and transfers, making it difficult for some to find an appropriate placement.

> Nursing homes and assisted living facilities may be racially segregated.

(Source: Senior Housing Research Project, John Marshall Law School Fair Housing Legal Support Center)

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Fair Housing Violations

> Zoning and Land use decisions:> Family composition> “proper supervision”> Alarms, sprinklers, other fire related> Geographic dispersal> Neighbor notification

> DOJ/HUD Joint Statement on Group Homes, Local Land Use, and the Fair Housing Act http://www.justice.gov/crt/housing/final8_1.php

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Getting Into HousingLandlords or housing providers may attempt to exclude older people due to:

> Perceived Liability> Requirement that people be healthy, able to get

around or able to live without help (“independently”).

> Fear they will be difficult tenants or request modifications or reasonable accommodations.

> Claim that “We can’t meet your needs.”

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Reasonable Accommodations> Must be made to rules, policies, practices or

services when necessary to afford the person with a disability an equal opportunity to enjoy the dwelling

> Not reasonable if poses a fundamental alteration or undue financial and administrative burden (like Section 504 of the Rehab Act of 1973)

> Interactive Process

> HUD-DOJ Joint Statement on Reasonable Accommodations Under the Fair Housing Act

> 42 U.S.C. § 3604(f)(3)(b); 24 C.F.R. § 204

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Structural Modifications> Must be permitted when necessary to afford the person

with a disability an equal opportunity to enjoy the dwelling.

> At resident’s expense unless federally funded.

> Reasonable deposit can be required for restoration to marketable condition.

> HUD/DOJ Joint Statement on Reasonable Modifications Under the Fair Housing Act. http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf

> 42 U.S.C. § 3604(f)(3)(A); 24 C.F.R. § 100.203

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Design and Construction

42 U.S.C. § 3604(f)(3)(C) requires “covered multifamily dwellings” first occupied after March 13, 1991, with 4 or more units to include certain accessibility features.

• Elevator building, all units covered.• Non-elevator building, ground floor units and

public and common spaces covered.

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Six required FHA features

1. Public and common use areas must be “readily accessible to and usable by handicapped persons.”

2. Doors wide enough for wheelchairs.3. Accessible route into and through dwelling.4. Light switches, outlets, thermostats, etc.

placed in accessible locations.5. Bathroom walls reinforced to allow grab bars.6. Kitchen and bathrooms have space to allow

wheelchairs to maneuver.

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Universal Design> Lever door and faucet handles> Bathroom aids (grab bars, hand held shower)> Entrance without steps> Wide doorways, power assist doors> Bedroom on main level> Full bath on main level> Non-slip flooring> Public sidewalk outside home> Attached garage or covered parking immediately

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Hot IssuesDesign and Construction

> Timeliness – Courts are split> Date of first occupancy> Date of sale of last unit> Continuing violation theory> When no longer “unavailable”

> Proper defendants> Standing - Actual purchasers/renters; organizations> Damages and injunctive relief

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Inadequate Housing> Most housing was not designed with features to

meet the needs of an aging population (approximately 121 million units).

> 60 million more units needed by 2030 to serve growing population and replace aging housing stock.

> 38.0% of rental units built before 1960.> 35.9% of owned units built before 1960

(Source: Arthur C. Nelson, Toward a New Metropolis: The Opportunity to Rebuild America (Washington, DC: Brookings Institution, December 2004))

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Unsafe Housing

>Many existing housing units are not safe and appropriate for people as they age:

> 36.7% of owned units have at least one resident with a disability

> 48.5% of rented units have at least one resident with a disability

>Estimates indicate less than ½ of people have made home modifications to support aging in place.

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Inaccessible Housing

>Only 5% of public and subsidized units are required to be accessible to people with a disability.

• 14 % of all HUD subsidized and public housing households include person with a disability.

• 31% of HUD subsidized and public housing households headed by person over 62.

• 41% of HUD subsidized and public housing households are headed by a person over 51.

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Fair Housing Planning>Coordinate planning and design homes,

neighborhoods, and transportation/mobility options to foster aging in place.

>Ensure that communities have a sufficient supply of housing types that are affordable to people as they age and bear increased housing cost burdens.

>Coordinate services and health care with housing to meet Olmstead requirements to serve people in the least restrictive environment.

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Fair Housing Planning

>Ensure Analysis of Impediments addresses needs of an aging population (AFFH).

> Adopt Universal Design or Visitability standards for single family and multifamily housing.

> Counsel people on using reverse mortgages to make modifications or make other funds (HOME, property tax rebates) available.

> Encourage CAPS certification.

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What YOU Need To Do

> Engage in Consolidated Planning Process• Write letters before process starts• Go to planning and public meetings

> Seek to serve on Metropolitan Planning Organization Boards or advisory bodies

> Seek Sustainable Community Planning Grants (www.hud.gov/sustainability)

> Learn about aging issues and educate municipal and planning officials.

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Land Use and Zoning

> Eliminate Zoning and Land Use restrictions that limit availability and varieties of housing options.• Smaller units in higher density developments• accessory dwelling units (“granny flats”)• shared housing• housing connected with supportive services.• multifamily housing• Transit oriented development• Source of Income protections

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Civil Rights Laws

>Fair Housing Act of 1968 and Fair Housing Amendments Act of 1988

> 42 USC § 3604 et seq.> 24 CFR Part 100

>Section 504 of the Rehabilitation Act of 1973> 29 USC § 794> 24 CFR Part 8

>Americans with Disabilities Act> 42 USC § 12101 et seq.

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Prohibited Inquiries> Cason v. Rochester Housing Authority,

748 F.Supp. 1002 (W.D.N.Y. 1990)• Court struck down the defendant’s practice of

conducting “detailed inquiries into the nature and scope of the applicant’s disabling condition.”

• In reaching this conclusion, the Cason opinion relied on HUD’s FHA regulations, which specifically restrict such inquiries.

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Independent Living Admission Requirements

> Robards v. Cotton Mill Associates, 713 A.2d 952 (Me. 1998)

> STATEMENT OF HEALTH INCLUDING ANY DISABILITIES (statement of your doctor should be used here). Physician should state here a brief description of your medical condition, disability and/or handicap and whether you are able to care for yourself if living alone and/or able to care for [an] apartment.

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Independent Living Admission Requirements

Jainniney v. Maximum Independent Living Case No. 00CV0879 (N.D. Ohio Feb. 9, 2001)available at http://www.bazelon.org/issues/

Housing/cases/jainniney_v_maxindliv.pdf

> Detailed inquiries in application process about ability to “live independently” violate the FHA.

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Independent Living Admission Requirements

United States v. Resurrection Retirement Community, Inc., No. 02-CV-7453 (N.D. Ill. Oct. 17, 2002), 1 Fair Hous.–Fair Lending (Aspen L. & Bus.), Report Bulletin ¶ 12.12 (Dec. 1, 2002)

>Consent decree under which the defendant, in addition to paying $220,000 in monetary damages and penalties, agreed to rescind its “independent living” and medical-exam policies

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Self Care Inquiries

Niederhauser v. Independence Square Housing, 4 FH-FL Rptr. ¶ 16,305 (N.D. Cal. 1998).

>Upon his return from a hospital, landlord made inquiries about ability of resident and his wife to meet their medical, hygiene, and other personal needs.

>Resident preferred to get services from own providers.>Court: Landlord violated FHA.

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Lease Provisions Respecting DisabilityClearlake Housing Now v. The CBM Group, Inc.(N.D. Cal. No. C03 3000 WHA )

> Lease for 3,500 units of USDA Rural Development Housing included lease clause stating that tenants had to be “capable of self care.” CBM argued that it never made inquiries or discriminated.

> Plaintiffs survived motion to dismiss arguing it was violation under 42. USC 3604 (c) (Ads, notices and statements).

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Independent Living Evictions

Symons v. City of Sanibel, (M.D. Fla. 2003), settlement at 1 FH-FL Rptr., Report Bulletin ¶¶ 1.8 (Jan. 1, 2004)

> attempt to evict resident for allegedly not being “capable of living independently” results in settlement providing for resident to remain in place and for defendants to “eliminate any [impermissible inquiry or] reference to the ability to live independently from their tenancy criteria.”

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Disability Related Evictions

United States v. Pacific Life Insurance Co. (W.D. Texas, consent order filed 2006)

• Administered “health and wellness examination” designed to aid defendants in their eviction of residents whom they deemed physically or mentally disabled.

• Illegal inquiries into the amount and nature of health care received by residents.

• Ostensibly probed the mental acuity of residents by asking them to count backward from 100, identify the U.S. President who used a wheelchair, and state the meaning of the phrase “a stitch in time saves nine.”

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Health Issues:“Level of Care”

> United States v. Savannah Pines, LLC, No. 401CV3303 (D. Neb. April 30, 2003), available at http://www.usdoj.gov/crt/housing/documents/savannahsettle.htm

> senior housing development agreed to abandon rental agreement that Justice Department alleged violated the FHA by requiring residents to move out if they “can no longer care for [their] personal needs”

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“We Don’t Offer the Services You Need”> HUD v. Strawberry Point Lutheran Home for the Aging,

2003 WL 1311336 (HUD ALJ March 5, 2003) > Settlement of HUD’s FHA charge based on retirement

complex’s attempt to require long-term resident to move to nursing home because of her need for assistance in transferring from bed to wheelchair, with center agreeing to cease all eviction efforts and to consult with complainant-resident and her physician before proposing any future move.

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Further Reading

>Schwemm and Allen, For the Rest of Their Lives: Seniors and the Fair Housing Act: http://www.bazelon.org/issues/housing/moreresources/articles/11-04iowalawreview.pdf

>Allen and Silverstein, Preserving Elders' Housing Rights: http://www.bazelon.org/issues/housing/moreresources/articles/10-03trial.htm

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Further Reading

>Bierma, Nepveu, and Wilkinson, We Can’t Meet your Needs: Fair Housing Opens Doors To Housing With Services, 42 Clearinghouse Rev. No. 5-6, 251 (Sept.-Oct. 2008).

>Allen, We Are Where We Live: Seniors, Housing Choice, and the Fair Housing Act http://www.abanet.org/irr/hr/spring04/seniors.html

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Further Reading

>Carlson and Allen, Why Does the Business Manager Need My Complete Medical History? An Examination of Housing Discrimination in Long-Term Care: http://www.bazelon.org/issues/housing/moreresources/articles/3-04naela.pdf

Resources

>Beyond 50: AARP Reports to the Nation http://www.aarp.org/research/reference/agingtrends/aresearch-import-449.html

> Beyond 50.03: A Report to the Nation on Independent Living and Disability

> Beyond 50.05 A Report to the Nation on Livable Communities: Creating Environments for Successful Aging

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Resources

>The Maturing of America—Getting Communities on Track for an Aging Population, (available at www.n4a.org).

>Blueprint for Action: Developing a Livable Community for all Ages, (available at www.n4a.org).

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