NSCLC’s Article Develops Fair Housing Claim to Prevent Discrimination In Long-Term Care
Keywords
Under the
Fair Housing Act’s no-inquiry regulation, a landlord cannot ask an applicant
for tenancy about his or her health condition.
24 C.F.R. § 100.202(c). An
article by NSCLC attorney Eric Carlson
discusses how the regulation can be used to prevent discrimination by long-term
care facilities. The article has just
been published in the “Aging Symposium” edition of the Notre Dame Journal of
Law, Ethics and Public Policy. Click here to read the article. Preparation of the article
was funded by a grant from the Borchard Foundation Center on Law and Aging.
The problem is familiar to anyone looking for long-term care. When considering an application for admission, a long-term care facility routinely requires extensive information from the applicant’s medical history. To a certain extent, the facility uses the information to assure that the facility can provide the appropriate level of care. But often the facility also uses the information to screen out those applicants whose medical conditions are time-consuming or disagreeable. A telling advertisement for a nursing facility software package brags that “[w]ith Admission Analysis you can finally manage your bottom line one admission at a time!”
The facility is discriminating based on medical condition, likely violating anti-discrimination provisions of the Americans with Disabilities Act, the Fair Housing Act, and Section 504 of the Rehabilitation Act. 42 U.S.C. § 12182(a) (ADA); 42 U.S.C. § 3604(f) (FHA); 29 U.S.C. § 794(a) (Section 504). For example, the Third Circuit found that admission decisions were administrative decisions remediable under Section 504, and on that basis ordered the defendant nursing facility to admit a woman with difficult behaviors resulting from Alzheimer’s disease. Wagner v. Fair Acres Geriatric Ctr, 49 F.3d 1002 (3rd Cir. 1995).
This is the type of situation in which an ounce of prevention clearly would be worth more than a pound of cure. If facilities would make admission decisions without access to applicants’ health histories, they would not have the means to discriminate based on medical condition. The complicating factor is, of course, that some access to medical condition information would seem appropriate or even necessary, given that long-term care facilities provide services that vary with residents’ health care needs. Some applicants need nursing home care, but others require assisted living care. Depending on state law, an applicant may be appropriately admitted to one assisted living facility but not another.
The law review article concludes that the no-inquiry regulation applies to long-term care admissions. The Fair Housing Act applies to long-term care facilities, the no-inquiry regulation explicitly applies to applicants, and none of the regulatory exceptions apply.
Enforcement of the no-inquiry regulation would have a salutary effect on long-term care. Initially, long-term care facilities would have no access to applicants’ health care information. By necessity, the facilities would establish appropriate priorities for admission, since the no-inquiry regulation contains an exception if the requested information is needed to determine if the applicant is eligible for priority. Any priority would have to be explicit and also consistent with the various federal provisions prohibiting discrimination based on medical condition. The facility would have access to medical information only on the limited basis necessary to determine if the applicant’s care needs were appropriate for the facility. After admission, the facility would have complete access to the now-resident’s medical information, since the no-inquiry regulation applies to applicants but not to tenants/residents.
The next step is to pursue the matter in litigation. Long-term care advocates are encouraged to consider litigation based on the no-inquiry regulation, and to contact Mr. Carlson in NSCLC’s Los Angeles office with any questions or suggestions.