Complete Story
10/20/2015
United States Obtains $255,000 Settlement of Disability Discrimination Lawsuit Against Continuing Care Retirement Community
Benesch’s Marty Sweterlitsch has provided this important information for independent living providers. The Justice Department reached a settlement that resolves allegations that the owners and managers of a continuing care retirement community known as Sedgebrook violated the Fair Housing Act by instituting policies and maintaining practices that discriminated against residents with disabilities at the facility, which is located in Lincolnshire, Illinois.
The proposed settlement still must be approved by the United States District Court for the Northern District of Illinois. The complaint alleges that since 2011, Sedgebrook has instituted a series of policies that prohibited, and then limited, residents’ ability to dine in the communal dining rooms of the independent living wing of the facility if they required assistance eating due to a disability. Additionally, the complaint alleges that Sedgebrook maintained a policy prohibiting residents of the independent living wing from hiring live-in caregivers and refused to grant reasonable accommodations to that policy that would have allowed Sedgebrook residents with disabilities to use and enjoy their apartments.
Under the settlement, Sedgebrook will pay $210,000 into a settlement fund to compensate residents and family members who were harmed by these policies. Sedgebrook will also pay a $45,000 civil penalty to the United States. In addition, Sedgebrook will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new policy applicable to residents’ private employment of caregivers, and a new reasonable accommodation policy. Additionally, Life Care Services LLC, the company that manages Sedgebrook and is a named defendant in the lawsuit, will take steps to implement similar policies at the over 100 independent living and continuing care retirement communities it owns or manages across the country.
The Dining Services Policy that led to the complaint required that a resident “must be able to feed himself/herself in independent living dining room” with or without the use of unobtrusive adaptive eating devices and provided:
A resident using the Restaurant or CafeÌ should meet the following criteria: able to follow directions and communicate with others; able to dine with little or no assistance; and exhibit acceptable social behavior. Examples of unacceptable social behavior include, but are not limited to: a) food debris on clothing; b) use of uncontrollable or continued yelling or offensive language or gestures; c) drool, food and/or liquid seeping from the mouth; d) offensive body odor; e) continual rudeness, arguing and/or threatening behavior to staff, other residents and/or guests; and f) inadequately controlled incontinence. Resident must be able to access the restroom on his/her own or with the assistance of a Personal Service Provider (PSP).
Any additional assistance needed will be provided by the wait staff or the PSP. The PSP can carry the food tray to the table in the CafeÌ. The PSP can assist with transfer to a dining room chair at the resident’s request. Finally, the Policy states that the PSP can provide minimal assistance with dining but not feeding.
The good news from this case, if any, is that the Consent Order includes a Dining Room and Events Policy along with a negotiated risk agreement for those choosing to transfer from a motorized vehicle to a dining room chair without a physician order, and various releases for those choosing to leave a health care area in favor of using the general dining area. There is also a Reasonable Accommodations Policy along with request and documentation forms. Facilities that choose to pattern their policies after those included in this Consent Order should have some comfort that policies are consistent with Fair Housing and ADA requirements. (M. J. Sweterlitsch, J.D., Benesch)