New Guidance Released on CCRC Scooter Policies

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 A recent consent order between the U.S. Department of Justice (DOJ) and a Virginia continuing care retirement community (CCRC) provides guidance on what senior living communities need to consider when drafting dining room policies as well as policies regulating the use of motorized wheelchairs and scooters.

The DOJ alleged the CCRC violated the Fair Housing Act based on a dining room policy the CCRC enacted in 2011 after 2 medical incidents in one of the dining rooms in the independent living portion (residential building) of the CCRC campus.  

In response to the 2 incidents, the CCRC consulted its liability insurance carrier, legal counsel, and its resident advisory counsel and revised its policy to prohibit residents that resided in the assisted living, nursing or memory care units (healthcare building) from using the residential dining rooms.  

The CCRC quickly liberalized its policy after resident complaints and receiving notice from the State of Virginia that a more lenient policy would not violate state regulations. After a lengthy DOJ investigation, the CCRC adopted a Dining Room and Events Policy (Dining Policy -- Appendix A of the consent order).  

The dining policy allows all life-care residents of the CCRC to use the residential dining rooms provided that they can comply with the dining room rules and procedures.  The rules specifically allow aides to accompany a resident that needs assistance to the dining room.  

The dining policy states that any medical condition or concern about a resident's ability to dine in the residential dining rooms pursuant to the rules are to be addressed on an individual basis through a well-defined reasonable accommodation process. Providers need to be aware of the fair housing implications of restrictive dining room policies and possible discriminatory effects even though there may be no intent to discriminate against residents.

In addition to the dining room issues, the DOJ alleged that prior to 2013 the CCRC had a prior written policy that required residents who used a motorized wheelchair or scooter to pay a $300 non-refundable deposit, obtain liability insurance, and get permission from the CCRC to use the device.  As part of the consent order the CCRC adopted a Motorized Wheelchair and Scooter Policy that forbids those requirements, but includes safety rules and procedures to follow if there is an unexpected event or violation of the safety rules.   

The Motorized Wheelchair and Scooter policy is similar to other policies contained in prior DOJ Fair Housing consent orders addressing this issue and provides clear guidance to providers about what is reasonable in regulating mobility devises in their communities. 

Although the consent order is not an admission of liability by the CCRC, has no precedential value, and was entered into to avoid costly litigation, it nonetheless provides guidance on what the DOJ is analyzing when addressing Fair Housing allegations and what it views as reasonable policies and procedures with regard to dining rooms and mobility devices.  

Finally, pursuant to the order the CCRC must pay a $40,000 civil penalty as well as $350,000 to cover any claims by aggrieved residents. For questions, please contact Cory Kallheim at ckallheim@leadingage.org or Steve Maag at smaag@leadingage.org.

 


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