Opening Acts: April 12, 2018

New York State and Adult Homes Sued for Discriminating Against People Using Wheelchairs

FHJC TESTING INVESTIGATION YIELDS EVIDENCE OF DISABILITY DISCRIMINATION

Today, the Fair Housing Justice Center (FHJC) and two individuals filed a federal lawsuit alleging that New York State and four adult homes discriminate against people with disabilities who use wheelchairs. The two individual plaintiffs are a woman who is a resident at one of the named facilities and her representative. The resident alleges she was barred by the facility from returning to her home of five years once she began using a wheelchair.

After receiving complaints of discrimination from adult home residents, the FHJC conducted an undercover testing investigation at adult homes operated by defendants Village Housing Development Fund; Elm York, LLC; Madison York Assisted Living Community, LLC; and Madison York Rego Park LLC. FHJC’s investigation revealed that the defendant adult home operators maintain and enforce blanket policies barring wheelchair users, regardless of their individual needs or abilities, and steered applicants who use wheelchairs to nursing homes.

The lawsuit challenges discrimination by the operators of these four adult homes that are licensed by the State to provide housing and services to people with disabilities, but in practice deny applicants and evict residents who use wheelchairs. All the defendant adult homes have elevators, and all have assisted living programs, which are funded to provide a variety of supports, including personal care and home health services, to people with disabilities. Collectively, the defendant adult homes are licensed to house over seven hundred people.

The suit also alleges that New York State promotes disability discrimination through its regulations and policies, including its policy permitting adult homes to ban wheelchair users from admission. New York State Department of Health regulations state that adult homes and assisted living programs should not admit or retain people who are “chronically chairfast.” The regulations were promulgated in 1978, prior to passage of the Americans with Disabilities Act, the Affordable Care Act, and the amendments to the federal Fair Housing Act, which made discrimination based on disability illegal. Also, the regulations were in effect prior to the Supreme Court’s decision in Olmstead v. L.C., which made it clear that unnecessarily relegating people with disabilities to institutional settings is illegal discrimination. Yet the State has never updated the regulations to comply with federal protections against disability discrimination, despite being informed by advocates on multiple occasions that the regulations are unlawful. The FHJC investigation revealed conduct by DOH employees that supported the discriminatory policies maintained by the adult home defendants.

FHJC Executive Director Fred Freiberg stated, “People with disabilities who use wheelchairs must have equal access to housing opportunities and assisted living services that are available to others. The State needs to enact and enforce regulations that promote non-discrimination in adult care facilities and assisted living programs so that they fully comply with federal civil rights mandates.”

The plaintiffs are represented by Jota Borgmann, Jeanette Zelhof, Tanya Kessler, and Kevin Cremin of the Mobilization for Justice, Inc. (MFJ) and Susan Silverstein and Iris Y. Gonzalez of the AARP Foundation Litigation, Inc.

“Banning residents who use wheelchairs to get around their home and their community is blatant discrimination on the basis of disability, and a violation of federal law,” said Susan Silverstein, Senior Attorney at AARP Foundation Litigation.

“As soon as a resident begins to use a wheelchair, the adult home claims they are inappropriate for assisted living and sends them to a nursing home,” said Jota Borgmann, Senior Staff Attorney at Mobilization for Justice. “And, worse yet, New York State shamefully maintains that it is perfectly fine for adult homes to discriminate against people who use wheelchairs.”