The dining room has been the cornerstone of family life in America for generations. It was Ronald Reagan who once noted, “All great change in America begins at the dinner table.” Many continuing care retirement communities (CCRC) are finding that the balance between maintaining the quintessential dining room experience for their residents and following the Fair Housing Act (FHA) obligations imposed on assisted and independent living facilities to be a daunting task. In this article, I review the importance of FHA compliance in dining room policies at CCRC facilities.
Common area dining rooms are often the most popular gathering locations in a CCRC and also the most common areas where policies, enacted with the best intentions, are likely to give rise to claims of discrimination arising under the FHA. The Civil Rights Act of 1968 includes the FHA, which prohibits discrimination in housing-related practices based on race, color, religion, national origin, sex, familial status and disability. The FHA’s broad definition of disability includes mental and physical impairments common to CCRC facility residents. Discrimination based on a disability includes the refusal by the facility to make reasonable accommodations to policies, programs, or services that would allow residents to use and enjoy the facility, including the common areas.
The Department of Justice has enforced the FHA in numerous cases where CCRCs failed to provide reasonable accommodations. The facilities were fined and required to enter into Consent Orders containing remedial measures. In one case, a CCRC’s newly-implemented dining room policy prevented the assisted living, memory care and nursing residents from eating in the independent living dining room. The facility had separate units for each care level, and the separate dining areas were all physically connected in the same building. The facility entered into a Consent Order with the Department of Justice requiring them to pay $350,000 into a compensation fund for residents and a $40,000 civil penalty. Further, the Consent Order required the facility to appoint a Fair Housing Act Compliance officer and implement new dining policies.
Another FHA case dealt with a facility that excluded residents, who could not feed themselves, from the independent living facility dining room. Under the Consent Order, the owner and manager of the facility was required to amend several corporate polices. The facility was required to accept the assisted living and skilled nursing residents, with accommodations, to the independent living dining room as guests of the independent living residents. The CCRC was required to allow residents with eating disorders to receive assistance with eating, such as being fed by a private attendant or family member. The owner and manager of the CCRC were also required to create a settlement fund of $210,000 and pay a civil penalty of $45,000.
To avoid unwittingly establishing policies that violate the FHA, CCRCs should periodically review and identify policies that are potential risks for discrimination claims. This review should include policies involving dining rooms, common areas, and staff training materials. Another best practice would be to create a review team that includes senior management, legal counsel, and dining and health services employees. That team should be tasked with amending, if necessary, policies and procedures for compliance with the applicable Federal and State laws on discrimination. The FHA accommodation requirements are very fact specific as to each policy and situation. As no two policies or factual situations are the same, a CCRC should consider contacting an attorney with FHA experience to help analyze each policy and the nature of any potential discrimination it may pose.
Finally, contact legal counsel in the event a claim of discrimination is made against a facility, so that the appropriate steps can be taken to minimize liability and assist with negotiations with the applicable government authority.