LIVING WITH DIGNITY AGING IN PLACE

1. LIVING WITH DIGNITY AGING IN PLACE HUD Policy Conference, New Orleans July 19-23, 2010

2. Contact Information: Julie Nepveu, Esq. Senior Attorney AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 Email: JNepveu@aarp.org Web: www.aarp.org V 202-434-2075 TTY 1-877-434-7598 Aging In Place

3. Living with DignityAging in Place • What are the fair housing issues implicated by an aging population? • Is the fair housing community prepared to address the needs and issues that may affect the aging population? Aging In Place

4. Aging in Place • The vast majority of older people want to age in their homes and communities for as long as possible. • 80% of the 50+ population are homeowners. • 20% of people 50+ are renters. • Health reasons become increasingly more important as a reason to move as people age. Aging In Place

5. Aging ≠ Disability • Older people often regarded as having disabilities • Incidence of disability increases as people age. • 40% of those 65 and older have a disability that affects one or more activities of daily living. • For people over 75, poor health, frailty, and concern about physical safety increase significantly. Aging In Place

6. Aging In Place

7. Housing Choice • Increased disability does not necessarily dictate a particular housing choice • Disability related needs can generally be met in the individual’s own home as well as in an independent or assisted-living facility, CCRC, or nursing home. • Aging in place (or community) helps to maintain social ties and engagement, which are associated with better physical and mental health among people of all ages. Aging In Place

8. Are We Ready? • Most people do not consider whether a home or community will meet their needs until it is obvious it does not. By that time, it is difficult to do make necessary changes, such as: • Moving elsewhere • Making home modifications • Influencing the way the community develops around them Aging In Place

9. Aging Population • Increasing proportion of the population will be over 65 years old: • 35.0 million (12.4%) in 2000 (1 in 10 people) • 39.7 million (13.2%) in 2010 • 53.7 million (16.5%) in 2020 • 70.0 million (20.0%) in 2030 (1 in 5 people) Aging In Place

10. Source: United Nations Department of Economic and Social Affairs, Population Division. World Population Prospects. The 2004 Revision. New York : United Nations, 2005 Aging In Place

11. By 2050 • The number of people: • over 65 will more than double • over 75 will triple • over 85 will quintuple • over 100 will septuple (approaching 1M) Aging In Place

12. WAKE UP! • 46 % of communities have not yet started to plan for an aging population. • Those communities that have started planning have not made major progress. (Source: The Maturing of America—Getting Communities on Track for an Aging Population) Aging In Place

13. Top Planning Challenges 1. Housing • Availability • Affordability • Accessibility 2. Financial • Access to Affordable Health Care • Transportation, providing services to scattered rural population, engaging healthy people Aging In Place

14. Prepare NOW • The longer we wait, the more difficult it will become to make the changes necessary to create environments for successful aging • In 1935 – 16 workers to every 1 person over 65. • In 2000 - 5 workers to every 1 person over 65. • In 2030 - 2 workers to every 1 person over 65. Aging In Place

15. The Fair Housing Act • Applies to all “dwellings”: “any building or portion thereof which is occupied as, or designed or intended for occupancy as, a residence for one or more families.” • Prohibits discrimination on the basis of race, color, religion, national origin, sex, familial status and disability • Age is not a protected class. Aging In Place

16. Disability Discrimination • Intentional discrimination • “Disparate impact” • Reasonable accommodations • Reasonable modifications • Design & construction accessibility Aging In Place

17. Fair Housing Amendments Act of 1988 • “[C]lear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals.” • H.R. Rep. 100-711 at 18 Aging In Place

18. Underlying Principles • Equality • Integration • Choice • Individuality Aging In Place

19. Principles: Equality • People with disabilities should have an equal opportunity to live where they want, and not be subjected to rules or requirements that are different from those applied to people without disabilities. • OK to permit preferences for people with disabilities. Aging In Place

20. Principles: Integration • People with disabilities are entitled to live in communities with their neighbors. • Integration does not just mean physical presence in a neighborhood. It includes participation in community services and activities. Aging In Place

21. Principles: Choice • People with disabilities are entitled to choose where they want to live. Aging In Place

22. Principles: Choice • People with disabilities are entitled to choose where they want to live. Aging In Place

23. Principles: Individuality • Housing providers must respect the unique needs and circumstances of individuals with disabilities and offer reasonable accommodations to meet these needs when requested. Aging In Place

24. Congress and HUD Sought to Make Disability Private • Affirmation that disability is a private matter, which should remain private unless and until applicant/resident chooses to disclose: • Seeking preference in admission • Seeking disability-related rent disregard • Seeking reasonable accommodation Aging In Place

25. Congress and HUD Sought to Make Disability Irrelevant • Landlord can ask a person with a disability (PWD) same questions asked of all applicants that relate directly to tenancy: • Can you pay the rent? • Can you get along with your neighbors? • Can you fulfill housekeeping obligations? • Can you obey the lease and the law? Aging In Place

26. Disability Inquiry • Housing providers are not allowed to make inquiries in order “to determine whether an applicant . . . has a handicap or to make inquiry as to the nature or severity of a handicap of such a person.” • 24 CFR § 100.202(c) Aging In Place

27. Fair Housing Violations • Fair Housing complaints related to disability have increased dramatically. • Independent living requirements and advertising limit housing choice. • Housing providers may refuse to make reasonable accommodations or permit modifications. • Multifamily housing built out of compliance with design and construction standards. Aging In Place

28. Fair Housing Violations • Nursing homes and housing with services discriminate based on disability in both admissions and transfers, making it difficult for some to find an appropriate placement. • Nursing homes and assisted living facilities may be racially segregated. (Source: Senior Housing Research Project, John Marshall Law School Fair Housing Legal Support Center) Aging In Place

29. Fair Housing Violations • Zoning and Land use decisions: • Family composition • “proper supervision” • Alarms, sprinklers, other fire related • Geographic dispersal • Neighbor notification • DOJ/HUD Joint Statement on Group Homes, Local Land Use, and the Fair Housing Act http://www.justice.gov/crt/housing/final8_1.php Aging In Place

30. Getting Into Housing Landlords or housing providers may attempt to exclude older people due to: • Perceived Liability • Requirement that people be healthy, able to get around or able to live without help (“independently”). • Fear they will be difficult tenants or request modifications or reasonable accommodations. • Claim that “We can’t meet your needs.” Aging In Place

31. Reasonable Accommodations • Must be made to rules, policies, practices or services when necessary to afford the person with a disability an equal opportunity to enjoy the dwelling • Not reasonable if poses a fundamental alteration or undue financial and administrative burden (like Section 504 of the Rehab Act of 1973) • Interactive Process • HUD-DOJ Joint Statement on Reasonable Accommodations Under the Fair Housing Act • 42 U.S.C. § 3604(f)(3)(b); 24 C.F.R. § 204 Aging In Place

32. Structural Modifications • Must be permitted when necessary to afford the person with a disability an equal opportunity to enjoy the dwelling. • At resident’s expense unless federally funded. • Reasonable deposit can be required for restoration to marketable condition. • HUD/DOJ Joint Statement on Reasonable Modifications Under the Fair Housing Act. http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf • 42 U.S.C. § 3604(f)(3)(A); 24 C.F.R. § 100.203 Aging In Place

33. Design and Construction 42 U.S.C. § 3604(f)(3)(C) requires “covered multifamily dwellings” first occupied after March 13, 1991, with 4 or more units to include certain accessibility features. • Elevator building, all units covered. • Non-elevator building, ground floor units and public and common spaces covered. Aging In Place

34. Six required FHA features • Public and common use areas must be “readily accessible to and usable by handicapped persons.” • Doors wide enough for wheelchairs. • Accessible route into and through dwelling. • Light switches, outlets, thermostats, etc. placed in accessible locations. • Bathroom walls reinforced to allow grab bars. • Kitchen and bathrooms have space to allow wheelchairs to maneuver. Aging In Place

35. Universal Design • Lever door and faucet handles • Bathroom aids (grab bars, hand held shower) • Entrance without steps • Wide doorways, power assist doors • Bedroom on main level • Full bath on main level • Non-slip flooring • Public sidewalk outside home • Attached garage or covered parking immediately outside home Aging In Place

36. Hot IssuesDesign and Construction • Timeliness – Courts are split • Date of first occupancy • Date of sale of last unit • Continuing violation theory • When no longer “unavailable” • Proper defendants • Standing - Actual purchasers/renters; organizations • Damages and injunctive relief Aging In Place

37. Inadequate Housing • Most housing was not designed with features to meet the needs of an aging population (approximately 121 million units). • 60 million more units needed by 2030 to serve growing population and replace aging housing stock. • 38.0% of rental units built before 1960. • 35.9% of owned units built before 1960 (Source: Arthur C. Nelson, Toward a New Metropolis: The Opportunity to Rebuild America (Washington, DC: Brookings Institution, December 2004)) Aging In Place

38. Unsafe Housing • Many existing housing units are not safe and appropriate for people as they age: • 36.7% of owned units have at least one resident with a disability • 48.5% of rented units have at least one resident with a disability • Estimates indicate less than ½ of people have made home modifications to support aging in place. Aging In Place

39. Inaccessible Housing • Only 5% of public and subsidized units are required to be accessible to people with a disability. • 14 % of all HUD subsidized and public housing households include person with a disability. • 31% of HUD subsidized and public housing households headed by person over 62. • 41% of HUD subsidized and public housing households are headed by a person over 51. Aging In Place

40. Fair Housing Planning • Coordinate planning and design homes, neighborhoods, and transportation/mobility options to foster aging in place. • Ensure that communities have a sufficient supply of housing types that are affordable to people as they age and bear increased housing cost burdens. • Coordinate services and health care with housing to meet Olmstead requirements to serve people in the least restrictive environment. Aging In Place

41. Fair Housing Planning • Ensure Analysis of Impediments addresses needs of an aging population (AFFH). • Adopt Universal Design or Visitability standards for single family and multifamily housing. • Counsel people on using reverse mortgages to make modifications or make other funds (HOME, property tax rebates) available. • Encourage CAPS certification. Aging In Place

42. What YOU Need To Do • Engage in Consolidated Planning Process • Write letters before process starts • Go to planning and public meetings • Seek to serve on Metropolitan Planning Organization Boards or advisory bodies • Seek Sustainable Community Planning Grants (www.hud.gov/sustainability) • Learn about aging issues and educate municipal and planning officials. Aging In Place

43. Land Use and Zoning • Eliminate Zoning and Land Use restrictions that limit availability and varieties of housing options. • Smaller units in higher density developments • accessory dwelling units (“granny flats”) • shared housing • housing connected with supportive services. • multifamily housing • Transit oriented development • Source of Income protections Aging In Place

44. Civil Rights Laws • Fair Housing Act of 1968 and Fair Housing Amendments Act of 1988 • 42 USC § 3604 et seq. • 24 CFR Part 100 • Section 504 of the Rehabilitation Act of 1973 • 29 USC § 794 • 24 CFR Part 8 • Americans with Disabilities Act • 42 USC § 12101 et seq. Aging In Place

45. Prohibited Inquiries • Cason v. Rochester Housing Authority, 748 F.Supp. 1002 (W.D.N.Y. 1990) • Court struck down the defendant’s practice of conducting “detailed inquiries into the nature and scope of the applicant’s disabling condition.” • In reaching this conclusion, the Cason opinion relied on HUD’s FHA regulations, which specifically restrict such inquiries. Aging In Place

46. Independent Living Admission Requirements • Robards v. Cotton Mill Associates, 713 A.2d 952 (Me. 1998) • STATEMENT OF HEALTH INCLUDING ANY DISABILITIES (statement of your doctor should be used here). Physician should state here a brief description of your medical condition, disability and/or handicap and whether you are able to care for yourself if living alone and/or able to care for [an] apartment. Aging In Place

47. Independent Living Admission Requirements Jainniney v. Maximum Independent Living Case No. 00CV0879 (N.D. Ohio Feb. 9, 2001)available at http://www.bazelon.org/issues/ Housing/cases/jainniney_v_maxindliv.pdf • Detailed inquiries in application process about ability to “live independently” violate the FHA. Aging In Place

48. Independent Living Admission Requirements United States v. Resurrection Retirement Community, Inc., No. 02-CV-7453 (N.D. Ill. Oct. 17, 2002), 1 Fair Hous.–Fair Lending (Aspen L. & Bus.), Report Bulletin ¶ 12.12 (Dec. 1, 2002) • Consent decree under which the defendant, in addition to paying $220,000 in monetary damages and penalties, agreed to rescind its “independent living” and medical-exam policies Aging In Place

49. Self Care Inquiries Niederhauser v. Independence Square Housing, 4 FH-FL Rptr. ¶ 16,305 (N.D. Cal. 1998). • Upon his return from a hospital, landlord made inquiries about ability of resident and his wife to meet their medical, hygiene, and other personal needs. • Resident preferred to get services from own providers. • Court: Landlord violated FHA. Aging In Place

50. Lease Provisions Respecting Disability Clearlake Housing Now v. The CBM Group, Inc.(N.D. Cal. No. C03 3000 WHA ) • Lease for 3,500 units of USDA Rural Development Housing included lease clause stating that tenants had to be “capable of self care.” CBM argued that it never made inquiries or discriminated. • Plaintiffs survived motion to dismiss arguing it was violation under 42. USC 3604 (c) (Ads, notices and statements). Aging In Place