Seniors and Senior Housing What Every Elder Law Attorney Needs to Know

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1 Seniors and Senior Housing What Every Elder Law Attorney Needs to Know 2013 ELDER LAW INSTITUTE October 30, 2013 Barb Blumer Barb Blumer Law, P.A

2 Overview Types and Characteristics of Senior Housing Payment Sources Quality Assurance and Regulatory Mechanisms Selected Issues in Senior Housing Public Policy Issues

3 Types and Characteristics of Senior Housing Independent senior housing Senior housing with significant health related service components See Senior Housing Options Chart in materials

4 Independent senior housing No significant health related service provided by housing management Residents make individual arrangements to bring services into their own home if needed Fair housing laws apply Landlord tenant law applies if rental; common interest community laws (including some aspects of landlord tenant law) apply if Common Interest Community

5 Independent senior housing Rental Market rate Limited buy in communities at this point - growing Subsidized Ownership Senior cooperatives, which has a rental component Senior condominiums and townhomes Active adult communities Single family homes Home sharing

6 Senior housing with significant health related service components Housing management makes arrangements for availability of significant health related services Level and type of services vary widely Tenant typically retains right to hire other service providers, but may be required to pay for (but not actually receive) basic service package to cover overhead costs for available services Typically, landlord tenant law applies Fair housing laws apply

7 Senior housing with significant health related service components Can be market rate, subsidized, and/or partially subsidized Service offerings vary widely Any size and any configuration Kitchens to no kitchens Shared apartment to deluxe units

8 Senior housing with significant health Housing with services related service components Registration with Health Department 17 point contract Uniform Consumer Information Guide see sample in materials Mandatory Long Term Care Option Counseling Assisted living Additional registration with Health Department, assisted living disclosures and minimum requirements, in addition to HWS requirements Memory care Special care disclosures and training in addition to HWS requirements; also subject to assisted living requirements if use that term Adult foster care Department of Human Services licensure requirements in addition to HWS requirements

9 Payment Sources - Overview Private Public resources Insurance Volunteer resources

10 Private Resources Seniors themselves Housing Food Supportive services Personal needs Health services Family members

11 Public resources Housing and food costs available in rental only and quite limited Group residential housing (GRH) Section 8 vouchers Project based subsidies HUD 202, HOME, etc. Supportive services can be in both rental and ownership settings, if financially qualified Elderly waiver Alternative Care State Plan Medical Assistance

12 Public resources Personal needs No source just whatever minimal amount public programs establish as personal needs allowance Health and medical services Elderly waiver Alternative care program State Plan Medical Assistance

13 Medicare Insurance Limited services in non-health care facility settings post acute, home bound Long term care insurance Growing source of payment Will grow as policies increasingly define a pot of money as the benefit, rather than defining the care delivery setting Private health insurance Limited sources of payment

14 Volunteer Resources Tenant assistance funds or mechanisms Family volunteers Friend volunteers Organizational volunteers

15 Quality Assurance and Regulatory Mechanisms Housing Health related service components See chart in written materials for overview

16 Housing Quality Assurance and Regulatory Mechanisms Housing Landlord tenant law, if applicable Common interest community and cooperative laws, if applicable Fair housing laws MN Housing with Services registration law, if applicable, including required Long Term Care Options Counseling MN Assisted Living registration law, if applicable Special (dementia) care disclosures, if applicable Building codes, fire codes, rental licensure Board and lodging law (no kitchens)

17 Health Services Quality Assurance and Regulatory Mechanisms Home Care Services Nurse Practice Act and community standards for nursing Home care law and rules Vulnerable Adult Act HIPAA and state privacy standards Special care (dementia) training Other health related professional licenses and professional standards Social Work particularly Other supportive service licenses and certifications Beauty and barber Food service and nutrition

18 Selected Issues in Senior Housing Residency agreements and leases Landlord Tenant Issues Fair housing Status with regard to public assistance Diminished capacity and surrogate decision makers

19 Residency agreements and leases Capacity to execute HWS 17 point disclosures and, if applicable Uniform Consumer Information Guide, if applicable Assisted living disclosures, if applicable Memory care disclosures, if applicable Residency requirements in all rental and CIC settings Non refundable community fee and other charges Required payment for basic service charge

20 Landlord Tenant Issues Return to apartment after hospital stay - potential of illegal lockout if home care agency/landlord tries to bar return based on tenant safety concerns Inappropriate community living conduct vs fair housing and tenant rights, especially in eviction proceedings Inability to pay, refusal to pay, family refusal to pay Bed bugs, hoarding, etc.

21 Fair Housing Laws - Overview Protected classes Illegal steering Away from independent housing to HWS, assisted living, or memory care programs based on disability Relationship of senior s need for home care services and tenant/owner rights Tenant s conduct, impact on other tenants and owner and tenant rights No Inquiry Rule Reasonable accommodation issues Use of assistive devices, motorized or otherwise Assistance animals vs pets Live in aides Disparate Impact Rule Advertising Guidelines

22 Protected Classes Race Color Creed Religion National origin Sex Marital status Status with regard to public assistance Disability Sexual orientation Familial status exception for housing for older persons

23 Problematic The fair housing prohibition of discrimination on the basis of disability, the support of a senior s autonomy, dignity, and choice and the public s concept that seniors are to be kept safe in senior housing often collide Creates multiple issues on a regular basis

24 No Inquiry Rule Fair Housing Rules (24 CFR (c)): (c) It shall be unlawful to make an inquiry to determine whether an applicant for a dwelling, a person intending to reside in that dwelling after it is so sold, rented or made available, or any person associated with that person, has a handicap or to make inquiry as to the nature or severity of a handicap of such a person. However, this paragraph does not prohibit the following inquiries, provided these inquiries are made of all applicants, whether or not they have handicaps: (1) Inquiry into an applicant's ability to meet the requirements of ownership or tenancy; (2) Inquiry to determine whether an applicant is qualified for a dwelling available only to persons with handicaps or to persons with a particular type of handicap; (3) Inquiry to determine whether an applicant for a dwelling is qualified for a priority available to persons with handicaps or to persons with a particular type of handicap; (4) Inquiring whether an applicant for a dwelling is a current illegal abuser or addict of a controlled substance; (5) Inquiring whether an applicant has been convicted of the illegal manufacture or distribution of a controlled substance.

25 Permitted Discrimination Fair Housing Rules (24 CFR (d)): (d) Nothing in this subpart requires that a dwelling be made available to an individual whose tenancy 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. Note that threat to health or safety of the tenant is not listed in this regulation

26 Illegal Steering We can t meet your needs, with your needs, you must live there, not here, you re not safe here Central question for home care and housing providers, given FHA, LLT law, nurse practice act, home care rules, public expectations, and risk of litigation Move in processes landlord vs. home care issues Return to apartment after hospital stay potential for illegal lockout and violations of nurse practice act and home care laws Move out processes

27 Inappropriate Tenant Conduct Maintaining balance between senior s fair housing/ownership/tenant rights and the rights of the greater number, including management, is difficult Establishing and enforcing non discriminatory residency requirements Annoying or unsettling conduct in community living setting Harm to peace of mind, well being, safety of other frail tenants quiet enjoyment Inappropriate movement, whether assisted or unassisted Wandering dangerous to self dangerous to others

28 Reasonable Accommodations and Modifications Landlord duty to consider and grant tenant requests for different rules and/or physical changes to accommodate disability Necessary to tenant to permit enjoyment of the premises Open minded dialogue required Fundamental change to program? Unreasonable burden on management?

29 Disparate Impact Rules 78 Federal Register No 32, Page 11460, February 15, 2013 Being challenged by housing provider groups Essentially a burden shifting process A facially neutral policy could be proven by a tenant to have discriminatory impact Management could then prove that the policy was a business necessity Tenant could then suggest a different less discriminatory approach to address the business necessity

30 Advertising Standards 24 CFR Discriminatory advertisements, statements and notices. (a) It shall be unlawful to make, print or publish, or cause to be made, printed or published, any notice, statement or advertisement with respect to the sale or rental of a dwelling which indicates any preference, limitation or discrimination because of race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation or discrimination.

31 Fair Housing Resources Joint Statement on Reasonable Accommodation by Department of Justice and Department of Housing and Urban Development Joint Statement on Reasonable Modification by Department of Justice and Department of Housing and Urban Development Department of Housing and Urban Development 2013 Fair Housing Rule on Disparate Impact Notice FHEO from the Department of Housing and Urban Development on Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs

32 Status with regard to public assistance Protected class under Minnesota Human Rights Act Limits on extent of participation in public assistance programs both rent and health service related Nothing in current law prohibits landlord or home care agency from setting limits on participation due to poor reimbursement Application for tenancy how handled consistent with law Waiting lists Required private pay status for defined period of time Termination of tenancy or other action due to tenant s inability to pay full market rate charges

33 Diminished capacity and surrogate decision makers Wandering and other life threatening conduct Failure to maintain personal hygiene Failure to maintain personal safety in variety of ways Lack of designated surrogates Surrogates and family members not acting in best interests of principal

34 Public Policy Issues Fire Codes Inability to self evacuate Governmental restrictions on size, location, provider choice, and living spaces of Medical Assistance Waiver recipients collision with fair housing rights CMS Olmstead Planning Consumer Report Cards for home and community based service programs Additional regulatory requirements for Housing with Services Establishments

35 Questions? Thanks Barb Blumer Barb Blumer Law, P.A