Assisted living facilities sued for discriminating against people who use wheelchairs

A group of related assisted living communities in New York City as well as the state's governor, health commissioner and Department of Health are defendants in a lawsuit alleging they discriminate against people with disabilities who use wheelchairs.

The New York City-based Fair Housing Justice Center, a former assisted living resident and her brother, who is her power of attorney and healthcare proxy, are the plaintiffs in the April 12 action.

The resident alleges that she was prohibited from returning to one of the facilities, where she had resided for five years, after she left for two months to be treated for a urinary tract infection and subsequently used a wheelchair some of the time. She continues to live at the skilled nursing facility where she had gone for rehabilitation, according to the lawsuit.

Defendants in the lawsuit include the Village Housing Development Fund, Elm York Assisted Living in the East Elmhurst neighborhood of Queens, Madison York Assisted Living in the Rego Park neighborhood of Queens and Madison York Assisted Living in the Corona neighborhood in Queens. The plaintiff lived in an adult home operated by the Village Housing Development Fund, which is related to the other communities, according to the complaint.

Representatives for the assisted living facilities did not respond to requests for comment by McKnight's Senior Living's publication deadline.

The FHJC, in a newsletter posted online, said it conducted an “undercover testing investigation” of the defendants' properties (in 2017, according to the lawsuit) after receiving allegations of discrimination from residents. The complaints, according to the lawsuit, included being prohibited from using wheelchairs and other mobility devices throughout facilities and in common areas and being warned that they could be sent to a nursing home if they became too reliant on such equipment.

The center had testers pose as family members of prospective residents, and conversations were recorded, according to the lawsuit. The investigation, the nonprofit organization said, “demonstrates a pattern and practice of discrimination against people who use wheelchairs.” Testers frequently were told that residents were required to be ambulatory in case of an evacuation.

The facilities are licensed by the state to provide housing and services to people with disabilities, and all have elevators, according to the FHJC.

“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,” Jota Borgmann, senior staff attorney at Mobilization for Justice, said in the newsletter article. Attorneys from that organization as well as AARP Foundation Litigation are representing the plaintiffs. “And, worse yet, New York state shamefully maintains that it is perfectly fine for adult homes to discriminate against people who use wheelchairs,” Borgmann added.

The FHJC alleges that the state “promotes disability discrimination through its regulations and policies.” Adult homes are allowed to ban wheelchair users, and the state Department of Health regulations say that assisted living facilities “should not accept nor retain any person who … is ‘chronically chairfast,' ” according to the complaint.

The regulations have not been updated since the passage of the Americans with Disabilities Act, the Affordable Care Act and the amendments to the federal Fair Housing Act as well as since the Supreme Court's decision in Olmstead v. L.C., the FHJC said.

“People with disabilities who use wheelchairs must have equal access to housing opportunities and assisted living services that are available to others,” FHJC Executive Director Fred Freiberg said in the newsletter article. “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.”

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Assisted living facilities sued for discriminating against people who use wheelchairs