In a complaint filed May 11 in the Norfolk Federal Court, the Justice Department said the Fort Norfolk Retirement Community, also known as Harbor's Edge, instituted policies that effectively segregated its resident population into distinct groups based on their level of disability and well-being.
A consent order filed at the same time as the complaint, and still awaiting the approval of U.S. District Judge Henry Morgan Jr., says that Harbor's Edge will pay $350,000 to residents harmed by the policies, and $40,000 to the federal government.
The agreement also requires Harbor's Edge to appoint a Fair Housing Act compliance officer and implement a new dining and events policy, a new reasonable accommodation policy and a new motorized wheelchair policy.
According to court documents filed by the Justice Department, Harbor's Edge is divided into two types of living facilities.
Independent living units are for those who need no assisted living and reside in a 17-story building called "Residential Tower." The assisted living, nursing and memory support residents live in a four-story building called the "Healthcare Building." The Residential Tower and Healthcare Building are connected by an interior corridor on the first floor.
The Residential Tower has four dining areas available to the public as well as residents. The Healthcare Building has several dining rooms as well. The assisted living unit has two dining rooms, and the nursing and memory support unit each have one dining room.
Harbor's Edge also hosts community events for residents and members of the public as marketing tools, including, for example, a party for the July 4th holiday.
Prior to May 2011 all residents of the Healthcare Building were permitted to eat at dining rooms located in the Residential Tower and attend events with the residents of the Residential Tower and members of the public.
But beginning in May 2011 and continuing to the present, the government says, Harbor's Edge has adopted a series of policies that prohibit, and then limited, residents living in the Healthcare Building from eating at dining rooms located in the Residential Tower and attending events with residents of the Residential Tower and the public.
Harbor's Edge adopted these policies because they wanted to market its facilities as a place for "younger seniors" who wanted an active lifestyle, the government says.
Because of these policy changes, the complaint says, spouses and friends who had dined and attended events together were no longer able to do so in the independent living areas.
On or about March 5, 2012, after several other dining and event policy revisions, Harbor's Edge again revised its policy allowing all residents of the Healthcare Building to dine in the independent living dining rooms with independent living residents in the Residential Tower if they passed a health screening, obtained a physician's consent and signed a release of liability. The March 2012 policy prohibited all residents living in the Healthcare Building from attending any events designed by Harbor's Edge as marketing events.
After the adoption of the dining room policies, residents and their families voiced opposition through letters to Harbor's Edge management and Board of Directors, met with the Virginia Long-Term Care Ombudsman, and circulated a petition to the Board of Directors asking that the policies be rescinded.
The Justice Department also says that beginning in about 2006 and continuing at least until April 2013, Harbor's Edge maintained a policy requiring any resident who used a motorized wheelchair or scooter to obtain prior approval from Harbor's Edge Staff, obtain liability insurance and pay a $300 non-refundable deposit before using their mobility aids on community property.
In a written statement, the management of Harbor's Edge said it is committed to full compliance with all statutory and regulatory requirements applicable to its operations, and feels very strongly that the Justice Department was wrong in its view that that engaged in discriminatory behavior.
"We are committed to providing the highest quality of services to our residents. Protecting their health and safety is our top priority," said Neil Volder, Executive Director and Chief Executive Officer of Harbor's Edge, in an interview with Courthouse News. "Our desire has always been to work jointly with the federal government and other regulatory authorities to clarify the laws pertaining to dining and event policies specific to those residents that are at a greater risk when dining or participating in activities without supervision of medical professionals."
Volder described Harbor's Edge as a success story and said he recently met with archtects to build a new residential building.
"We have about 350 residents and all of them are friends," he said.
Volder explained that Harbor's Edge implemented the new dining and events policy based on a "good faith belief" that it would be violating state regulations by continuing a longstanding policy of allowing nursing and assisted living residents to dine on our premises without having qualified medical staff present.
"After several medical incidents, two of which could have been life threatening, we had been advised by our legal counsel, liability insurer, and state regulators that our practice of allowing Healthcare residents to dine in an unregulated dining room posed risks to residents and created liability for the community," Volder said.
The problem for Harbor's Edge, he said, is that bureaucratic wheels move slowly. It took time to get the clarification the community needed to ensure it was both properly serving the desires of its residents and abiding by the law..
"Within 24 hours of receiving the state Department of Health's written assurance that allowing nursing residents to dine in an unregulated environment would not jeopardize our state license, we implemented revised dining policies that are almost identical to the policies just approved by the DOJ," Volder said.
The company said it has worked closely with the Justice Department over the past two years "to create policies and procedures that would ensure that residents would have access to all dining venues and activities but still comply with the state regulations in place to assure the safety and well-being of residents with standard medical protocols for nursing and assisted living."
Harbor's Edge said it agreed to the settlement to avoid the "enormous cost and distraction of litigation."
"Since the consent decree largely validates the dining policies we adopted prior to their investigation, and the cost our settlement is covered by insurance, this path was clearly the most beneficial for the community," Volder said.
"What was won? It's difficult to say," he continued. "I suppose what was really won in this case is that other communities like ours will now have a blueprint for what the DOJ will accept."
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Retirement Home to Pay $390K to Settle Lawsuit
Any time they have to pay, it gets their attention.
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