NEW REGULATIONS AFFORD ADDITIONAL PROTECTIONS TO ADULT CARE FACILITY RESIDENTS WITH DISABILITIESThe following joint statement was released yesterday by the Fair Housing Justice Center (FHJC), the AARP Foundation, Mobilization for Justice (MFJ), and Pillsbury Winthrop Shaw Pittman LLP:
Driven by a lawsuit brought by the Fair Housing Justice Center (FHJC) and two individual plaintiffs against the New York Department of Health (DOH) in 2018, the State of New York has issued new regulations that address decades of discrimination against people who use wheelchairs. The new state regulations, announced on February 22, correct provisions that fostered discrimination against individuals with mobility impairments seeking to live in adult care facilities. The lawsuit also resulted in an earlier round of changes to the regulations, but those changes did not fully address the problems. “Adult care facilities provide much-needed housing for many New Yorkers, and people with disabilities – including those who use wheelchairs – must have equal access. Although our lawsuit is still pending, these amended regulations are a positive step,” said Elizabeth Grossman, Executive Director/General Counsel for the FHJC. “It’s been an arduous process to end many years of discrimination against people with mobility impairments, and we are satisfied that this change will result in more options for more people to live in a facility that is best suited to their needs.” The litigation that led to New York’s two rounds of regulatory changes—FHJC v. Cuomo—was brought five years ago in response to the rampant discrimination against people who use wheelchairs seeking residence in assisted living and other state-licensed adult care facilities. Jointly being prosecuted on behalf of plaintiffs by the AARP Foundation, Mobilization for Justice and Pillsbury Winthrop Shaw Pittman LLP, the ongoing lawsuit alleges that New York’s Department of Health regulations have discriminated against individuals with mobility impairments in violation of the Fair Housing Act, the Americans with Disabilities Act, the Rehabilitation Act, and Section 1557 of the Affordable Care Act. The newly promulgated rules explicitly state that these adult care facilities 1) must individually assess people who use wheelchairs for residency; 2) must consider requests for reasonable accommodations from people with disabilities; and 3) can no longer outright bar individuals with mobility impairments, including people who use wheelchairs, from residency. While the latest DOH regulations mark a significant win for FHJC and its constituents, the case continues as questions about how the State plans to enforce the new rules to remediate the long-time discriminatory practices that DOH’s rules have fostered remain unanswered. “We are pleased that the State has adopted the regulatory changes in response to our lawsuit,” said William Rivera, Senior Vice President for AARP Foundation Litigation. “While we are proud of this outcome, the State must now implement and enforce the new regulations effectively so that adult care facilities treat New Yorkers who use wheelchairs with dignity and respect.” “It has taken years of litigation but we are relieved that DOH has finally removed regulations used to justify preventing people who use wheelchairs from accessing assisted living and steering them into more restrictive nursing homes,” said Jota Borgmann, Senior Staff Attorney at Mobilization for Justice. “We hope that facility operators, healthcare providers, and consumers and their loved ones all receive the same clear message: using a wheelchair should not be an automatic ticket into a nursing home for the rest of your life.” “We are pleased to see the State finally acknowledge and attempt to remedy policy inadequacies that have long plagued many vulnerable New Yorkers,” said David Keyko, the lead Pillsbury partner advising on the firm’s pro bono representation of FHJC. “Having promulgated these clearer, fairer rules, DOH must now turn its attention to making sure its regulations are fully applied and appropriately enforced at adult care facilities across the state.” The mission of the FHJC, a nonprofit civil rights organization, is to eliminate housing discrimination; promote policies and programs that foster open, accessible, and inclusive communities; and strengthen fair housing enforcement in the New York City region. The FHJC serves all five boroughs of New York City and the seven surrounding counties of Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk, and Westchester. New York residents in the above referenced service area that have been denied residency at an assisted living or other Adult Care Facility because of wheelchair use or mobility status can file a complaint by calling the FHJC at 212-400-8201 or filling out its online form found at https://www.fairhousingjustice.org/our-work/housing-discrimination-complaints/. New York residents can also report discrimination directly to DOH by calling 1-866-893-6772.