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Can CCRC Residents Finally Age In Place?
Federal Court Case Pending May Decide

By Lillian L. Hyatt, M.S.W., and a Resident of a CCRC

Excerpted from the Spring 2007 The CANHR Advocate newsletter

The January 2007 issue of the American Association of Retired Persons’ “AARP Bulletin,” reported that the AARP had assigned attorneys to help an active 88–year–old contest eviction from a Continuing Care Retirement Community (CCRC). She was being evicted because she had refused to leave her Independent Living Unit when the CCRC administrators insisted she move into Assisted Living. In Assisted Living she would have to share a room and bathroom with another resident with only a curtain providing any privacy. The resident claimed she did not require that level of care, and she had no desire to leave the comfortably furnished one bedroom apartment she had lived in for fourteen years.

The AARP’s attorneys filed the case in October 2006 in Federal District Court for the Northern Region, contending that the non–profit Channing House in Santa Clara County, violated federal and state disability and fair housing laws. (Case No. C06–06323) The attorney representing the trade association stated that the residents “contractually agree to the transfers if the company deems it necessary.”

While this resident needs services and assistance with some activities of daily living, she has hired, with her own money, private aides to help her. According to California law, Independent Units in CCRCs are licensed as Residential Care Facilities for the Elderly, opening the possibility to receive these services in her apartment. Many CCRC administrators prefer to deny that such services are available and usually the resident will quietly agree to be transferred to the Assisted Living or Nursing Home unit. When the resident vacates the apartment, it can be “sold” for a high entrance fee: a powerful financial incentive for administrators to expedite a resident’s move!

CCRC managements rely on such transfers of residents to higher levels of care in order to help pay for capital expenditures. One multi-site CCRC actually submitted a proposal to the California Continuing Care Contracts Branch (CCCB) proposing that such transfers would pay for a new facility for memory impaired residents by “moving them more quickly to a higher level of care,” so that the apartments those residents had lived in for a number of years could be sold to new residents at higher entrance fees. Is it possible that cash flows to the CCRC bottom line influence corporate decisions as well as the objectivity of level of care evaluations?

The AARP attorneys allege that the CCRC stands to gain $450,000 or more in new fees. In my own experience in 2001, the CCRC would have been able to sell my apartment for $300,000, because I had invested $45,000 in improvements to my unit and had only occupied it for a year before being indirectly pressured to move to the SNF because I required pureed food due to developing a swallowing disorder. The provider told me I was not entitled to such service while living in my apartment. The Ombudsman informed the management that all apartments were under Residential Care Facilities for the Elderly (RCFE) rules and any transfer to a higher level of care based on my problem was illegal. Nonetheless, I had to employ an attorney to enforce my rights under the CCRC contract. One year of litigation cost me over $3,000; the resident’s monthly fees paid the administration’s legal expenses, of course. The case was finally settled in my favor.

The plaintiff in the AARP case argues that federal law requires providers to make “reasonable accommodations” for people in CCRCs such as residents hiring caregivers to live independently without fear of eviction and transfer to higher care levels. Moreover, this case should prompt providers to be sure their policies conform to federal housing and disability law which will affect CCRC residents nationwide. If successful, residents in CCRCs might be able to “age in place”, and live out their last years in the “least restrictive alternative.”