ORANJ
Spring
2009 Plenary Meeting
Held at The Fountains at Cedar Parke on April 15, 2009
The primary speaker was Stephen Maag, JD., Director, Assisted Living and Continuing Care for the American Association of Homes and Services for the Aging (AAHSA). His presentation consisted of two parts, 1. current issues relating to fair housing and transfers versus aging in place, and 2. social accountability among not-for-profit providers.
full report
He made the point that “Fair Housing” provisions apply only to those in a protected class, i.e. according to race color, disability etc. Age is NOT a disability per se. Discrimination may be permissible if not in a protected class, i.e. among smokers, persons with weapons. Recent amendments added a prohibition against discriminating against families which includes an exception allowing senior communities to restrict residents to persons above a specified age. An important issue is older adults with disabled children who ask to keep their children with them.
In order to qualify for protected status as disabled, a person must have a physical or mental impairment that substantially limits one or more major life activity. If a disability exists, there is a duty by the provider of service to “reasonably accommodate” that disability. Grab bars, for instance, are a reasonable accommodation but the provider does not need to accommodate if he can’t afford the change or if it fundamentally alters the nature of his program.
Another significant controversy for CCRCs is a right to aging in place versus a CCRC’s contractual right to transfer a resident to a higher level of care such as Assisted Living. This is especially important in cases where the resident can afford to live safely in their dwelling, i.e. with a private duty aide, and the transfer is seen as discriminatory. Restrictions on private duty aides have been termed acceptable, e.g. appropriate certification, criminal background check and also when a CCRC requires that an aide may not be an employee of the facility.
Regarding the use of mobility aids such as walkers, wheelchairs, motorized carts, the courts have generally considered restrictions discriminatory. For instance, they have disallowed competency testing, damage deposits, restricting or limiting access to common areas. However, they have allowed limiting mobility aids to those who have a medical need so that residents cannot use them simply for convenience. Finally, he pointed out that new rules were being considered regarding service animals. Seeing -eye dogs in the case of blind residents are clearly allowable but the situation is more controversial for “emotional support” animals.
Mr. Maag’s second topic, social accountability, is particularly important because of 1,850 CCRCs in the US about 82% are not-for-profits. They receive tax exemptions on the assumption that they serve a community or governmental need in return. These exemptions are increasingly being challenged in the courts especially as communities with budget deficits look to increase their revenue streams. He emphasized that creating an internal climate of social accountability has to come from the top down and from the inside out. The Board, senior leadership, and residents have to recognize the importance of this mission. It is helpful if the organization add up what they gain by tax exemption, e.g. sales tax on purchases of supplies, equipments, food, tax exempt bonds for financing, charitable deductions for donations or endowments. Against this sum, the board, leadership and residents have to calculate the cost of their “giving back.” This would include any charity care given residents so that they could remain at the CCRC even after they had used up their funds. It also includes, for example, making space available for community organizations to meet at the facility, release time for staff to take part in community services, community work by residents, and after-school or day care programs for children. The CCRC needs to publicize the “give backs” as widely as possible including the results in annual reports, web sites, volunteer recognition events, etc. If possible, the total value of the contributions should come close to the value of the exemptions the CCRC has been granted.
In the afternoon, Charles Graziano, aid to Congressman Adler of the third Congressional District of Southern NJ, spoke briefly of items concerning seniors that are under discussion in the Financial Services and Veteran Affairs Committees. He emphasized the Congressman’s concern that bailout funds go to the middle class and that they prevent government waste. He also hopes to find ways to reduce health care costs, to provide health services to the uninsured and to include preventative measures. He is also concerned that Medicare does not provide for long term care and for better managed care.
-Ellen Handler, Chair, Communications Committee of ORANJ
