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May 14, 2018

New Lawsuit Alleges Improper Discrimination in Assisted Living Admission Standards for Wheelchair Users

The Fair Housing Justice Center (FHJC) recently filed a lawsuit in the US District Court for the Southern District of New York alleging that the State of New York, the Commissioner of the Department of Health and four private adult care and assisted living facilities unlawfully discriminate against individuals with disabilities. The FHJC is an organization based in Long Island City, New York, whose mission is to eliminate housing discrimination and strengthen enforcement of housing laws. In this lawsuit, the FHJC alleged that it is unlawful for adult care and assisted living facilities to deny admission to individuals who use wheelchairs (Fair Housing Justice Center, Inc., et al. v. Cuomo et al, Docket number 18-CV-3196 (April 11, 2018).

In preparation for filing the suit, the FHJC gathered and reviewed background information on the defendant facilities, including websites, brochures, and other print and internet-based promotional materials. The FHJC then utilized "testers" who made recorded calls the facilities, asking about admission on behalf of fictitious family members who utilized wheelchairs. Each facility stated that applicants for admission were required by law to be ambulatory so that they could evacuate in case of an emergency. The FHJC then sent testers to speak to individuals at the DOH regional and state, who confirmed that a facility must be able to safely evacuate a resident at any given time of the day or night.

Current regulations do not require facilities to staff 24 hours a day at a level to assist wheelchair users in case of an emergency. The admission standards require that a resident be able, "with direction, take action sufficient to assure self-preservation in an emergency". 18 NYCRR § 494.4(c)(4). An assisted living facility may not accept individuals who are "chronically chairfast" and who require lifting equipment to transfer or the assistance of two persons to transfer. Id. Those facilities with residents on upper floors may not be able to safely evacuate wheelchair users if elevators are shut off in a disaster.

In its lawsuit, the FHJC claimed that existing New York regulations are outdated, discriminatory against individuals with disabilities and violative of the Federal Fair Housing Act, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Section 1557 of the Patient Protection and Affordable Care Act. The plaintiffs are seeking broad relief, to accommodate wheelchair users, including the elimination of "no wheelchair" policies, the development of non-discriminatory policies and procedures to accommodate wheelchair-bound individuals, and follow-up reporting and monitoring to ensure compliance with federal laws. They are additionally seeking monetary damages, punitive damages and attorneys' fees and expenses.

This litigation highlights the active role the FHJC continues to take in challenging practices it views as discriminatory. This lawsuit will bear watching, as it is likely that the outcome will have a significant impact on adult care and assisted living facilities.


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