Timestamps

(00:00:02 ) Introduction 

(00:01:01 ) Healthcare Risk Management Experience 

(00:02:18 ) Fair Housing Act Explanation 

(00:08:15 ) Prohibition of Disability Discrimination 

(00:15:57 ) Understanding Essential Requirements 

(00:23:15 ) Rules Around Common Accommodations 

(00:29:42 ) Risks & Fair Housing Marketing 

(00:34:55 ) Legalities for Assisted Living Services 

(00:40:17 ) FSA & Housing Education 

(00:43:22 ) Rules Disregard in Senior Living 

(00:47:41 ) Risk Tolerance Discussion 

(00:49:06 ) Risk Management in Senior Living

So as you mentioned, I did medical malpractice defense for a number of years in New York,

and then I moved to Pennsylvania because I was getting married and my husband was from

out of state.

And when I moved, I decided to switch hats, and I decided to do healthcare risk management.

So I was tasked with starting up a risk management program for FSA.

At the time, we started with 12 organizations, nonprofit, faith-based communities, generally

in the Philadelphia area.

Since then, we've expanded quite a bit, and we now have 37 sites in six states.

And so I give guidance and consultation on risk management issues.

So today, we are going to talk about marketing risks, but I'm going to talk about it from

my perspective, you know, from a risk management perspective and a fair housing perspective.

Okay.

So thanks for that background.

So let's get right into it.

What is the worst-case scenario if someone says, you know, I'm going to market however

I want to market?

I'm going to say what I want to say, do what I want to do.

What have you seen as like a worst-case scenario of someone has done this and this horrible

outcome has happened?

Great question.

Nothing like the fear factor right from the beginning.

So what I'm going to preface that question with is an explanation of why there are risks

in this venue, in this area.

And so in 1968, Congress enacted the Fair Housing Act, which was what I like to call

the third leg of the stool for civil rights litigation, legislation rather.

And so we had the Civil Rights Act, then the Voting Rights Act.

 And then in 1968, they passed the Fair Housing Act.

And that precluded discrimination in housing choices and lending based upon what we call

the protected class status.

So started out with race, religion, national origin, color, gender, which now includes

gender identity and sexual orientation, and national origin.

In 1988, Congress amended the act to include two additional protected class categories.

Familial status, meaning that you are not supposed to be able to discriminate against

families with children.

And of course, there is a carve-out for our senior living settings.

And the one for purposes of our discussion today, which will be very pivotal, is it says

handicapped, but it's what we would refer to as disability.

So you have now protections under the Fair Housing Act, and we just call it FHA for both

the Amendments Act and the original act for all those protected classes, which act

essentially as a floor, not a ceiling.

So state and local jurisdictions can also add an additional protected class categories,

like, for example, maybe marital status, saying that, you know, you can't discriminate

against somebody because they're unmarried or, you know, because they cohabitate

together, for example, or source of income is another one that's fairly common.

So I think for a lot of senior living communities, they don't necessarily recognize

that they are covered by this act as a housing provider, because I think for a lot of

communities, they say justifiably, well, we're not a housing provider because we do so

much more than that. And you do.

However, in the eyes of the government, you are a housing provider and you are subject to

the Fair Housing Act.

And so there are lots of risks that come along with that.

Now, if you choose as an organization just to decide that you're going to market any way

you want to and you're not going to pay attention to various marketing risks, including

fair housing risks, what's the worst case scenario?

The worst case scenario is that you end up being in litigation, sued by potentially a

federal government. So it's now the United States of America versus, you know, senior

living community, A.B.

State. You are in litigation with the government.

You are being sued for housing discrimination.

Almost always that ends very badly for the community.

Almost always winds up in a monetary settlement.

Many times there is also a settlement compensation fund where the community has to

advertise in multiple places for people that have been subject to what they've just been

found by the government to be illegally doing.

Let's just say discriminating against those with scooters, for example.

And so they would have to advertise for anyone that's been impacted by that to give them

money. In addition, there's almost always what we call a consent decree that comes with

that. It's sort of, if you're familiar with the world of compliance, it's similar to

a CIA or a corporate integrity agreement whereby the government puts you into this

consent decree.

And the consent decree not only sets out the exact amount of money that you're going to

have to pay and how you would advertise to those who have been subject to your

discriminatory practices to give them money.

But there's also usually quite onerous burdens that are placed on the community,

including things like they get to and the government will review your actions for a

period of time. Usually it's about five years.

And so they will oversee and have to approve the policies, put policies in place for

whatever the particular topic is, change contracts, sometimes hire a fair housing

officer to perform acts to training and education for the staff on an ongoing basis.

And again, being overseen by the government for a period of time.

In addition, I would also say that you don't want to be the poster child for that.

So again, I happen to mention scooters.

And one of the pivotal cases in the world of, you know, communities that have been sued

for improper restrictions on scooters is a community called Twining Village.

And I don't like to use them, you know, but that that case is out there and everybody

knows about it. So you don't want to end up having the reputational damage in our world

of, you know, senior living where it's like, oh, that's the Twining Village case.

And so, you know, everybody knows based on that case, you know, some of the policies

that you have to have in place and the no-nos, the things that you shouldn't be doing.

You don't want to become the poster child for that, which can very easily happen.

Well, so a couple of questions.

Thank you for that. I mean, that's quite an overview.

So it were someone to actually go ahead and let me just back up.

So you're saying that there's the fair housing law, which puts nursing homes together in

that category. So therefore, they have these discrimination laws like you've outlined.

So is this, first of all, is this specific to marketing?

Are we talking about someone denies a patient because we don't take we don't want patients

with scooters because patients with scooters are dumb or whatever.

Yeah. So I'm speaking broadly about senior living communities.

Right. So it's anywhere that a person lives.

Okay. So if you are running a short term rehab only, then potentially you are excluded from

the Fair Housing Act because that's not someone's home.

The intention is to treat them for a brief period of time with the intention to discharge

them. However, it does apply clearly.

All the case law is very clear on this.

It does apply to settings like CCRC, independent living, assisted living, personal care,

long term care. So all of those things, you know, adult foster care, it does apply to all

those settings. It is questionable whether it would apply in the context of a short term

rehab strictly.

Okay. So let's back up.

If I don't have if I have a regular store and I sell chocolate and desserts and flowers and

what else? I can discriminate all I want?

No. There are other laws.

There are other laws that prohibit you from from doing that, that we're not necessarily

speaking about today. But again, when it comes to housing, we are under the auspices of

multifamily housing specifically, which means four or more people in a unit or, you know,

four or more units, I should say, not four more people.

Then you are subject to the Fair Housing Act.

So. Okay.

So the Civil Rights Act says that you can't discriminate.

Right. Suggested.

I understand that. So my point is that you have extra laws when it comes to if you're

managing or you own a home that has multiple families, say for like you said, four units

or more. So then you have you have extra focus.

So now let's assume someone has an assisted living facility, a long term care facility,

really can be an apartment building, too.

But we're saying even senior living facilities and they're going to and then they

discriminate against someone.

So does that mean that they refuse admission to someone?

Okay. So that's a great question.

So discrimination can take multip