Seniors who are no longer ‘independent’ can’t be discriminated against

Can an apartment complex require elderly residents to prove that they can live independently? How about a retirement community that caters to both independent and assisted-living residents – can it designate certain apartments or activities as only for people who are independent?

The answer might be more complicated than you think.

Two federal laws – the Fair Housing Act and the Americans With Disabilities Act – protect people with disabilities against discrimination. Landlords who try to limit areas or activities to people who are independent might run afoul of these laws.

For instance, it’s generally against the law for an apartment complex or retirement community to require residents to prove that they can live independently. As long as a resident can meet the basic requirements of tenancy – such as paying rent and not disturbing others – a landlord cannot discriminate just because a resident is dependent on medical equipment or receives help from private aides or family members.

In some cases, landlords may also have to provide reasonable accommodations for disabled tenants, such as wheelchair ramps.

Things get more complicated in assisted living and continuing care communities, which often cater to both independent seniors and those who need more help.

For instance, conflicts can arise when a facility wants to transition a resident from “independent” to “assisted” status – which often involves being uprooted and moved to another apartment – and the resident doesn’t want to go. The resident might argue that he or she can still function in the “independent” area with the help of private aides.

The facility might have good reasons for the request, such as being worried that the resident will be a danger to himself or herself or to others, or a need to comply with state regulations. But a resident might also have a valid claim under the discrimination laws.

What if a facility tries to limit certain activities or common areas to independent residents? That might be discrimination as well.

For instance, a continuing care facility in Norfolk, Virginia declared that a popular waterfront dining room was “independent only” and off-limits to residents in the assisted living and nursing units. As a result, a number of longtime friends and even some married couples could no longer eat together in the dining room. The facility eventually changed its policy after residents contacted a lawyer.

In Huntsville, Alabama, a similar conflict arose after residents in a nursing unit were barred from a facility’s regular bingo games.

Of course, facilities sometimes have a good argument, too. For instance, a facility might be able to show that allowing walkers, wheelchairs or motorized scooters in certain dining rooms could pose a tripping or falling hazard.

As more and more facilities offer memory care services, there will likely be increasing conflicts as to whether residents with Alzheimer’s disease or dementia can be barred from certain activities, such as films and concerts. A facility can certainly take steps to bar residents from certain activities if the residents would be disruptive, but it’s not always clear whether residents with memory issues will actually pose such a problem.

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