Is 'independent living' illegal?
6/11/2015 12:45:33 PM

By Paul Votto, National Director of Housing Programs

The term "independent living" is widely used in the senior housing industry. Some properties even incorporate the phrase in their names. Many use it freely in advertising. I've used it for years and continue to do so (although with some trepidation these days). If you had suggested to me a few months ago that there is something wrong with using the term I would have said you were being ridiculous.

That view changed in April of this year during a delivery of our new Certified Manager of Senior Housing program in San Francisco. Some of the participants claimed that, in California, it is now considered a fair housing violation to use the term "independent living." It's a claim I have yet to confirm. (If any reader has information on this, whether in California or elsewhere, please drop me a line at pvotto@nchm.org). However, it did get me thinking.

What do we really mean by "independent living?" Is a person who uses a wheelchair "independent?" Yes, you'd probably say, and I'd agree with you. Okay, then what constitutes not being independent? What about needing assistance with activities of daily living? Does it matter how much care or what types of care? It all seems so simple until you dig down just a little bit. And I'm guessing there are a lot of managers and owners of senior housing who struggle with this issue every day in a variety of different circumstances.

The notion that "independent living" might be a potential violation of fair housing laws also sent me on an Internet search and I was surprised what I found. Turns out that the subject has been on the radar screen for more than a decade. In fact, a 2004 New York Times article entitled "Independent Living Is Exposing Elderly To Eviction Threat" chronicled a number of examples of the clash between the concept of "independent living" and the rights of tenants to live in places of their own choosing. A 2007 article in Marquette University's journal, Marquette Elder's Advisor, by attorney D. Trey Jordan, looked at the issue in considerable depth. Entitled "Continuing Care Retirement Communities Versus the Fair Housing Act: Independent Living and Involuntary Transfer," the article concluded with this ominous warning:

"The independent living policies of CCRC facilities arguably violate the FHA's prohibition on housing discrimination based on handicap. Courts seem to be increasingly willing to extend the FHA protections to residents of CCRC facilities. However, the facilities do not appear willing to voluntarily abandon or alter independent living requirement policies. Considering the volume of case law mounting against the CCRC independent living requirement policies, as well as the CCRC industry's refusal to abandon discriminatory policies, legislative intervention is likely the only way to abate the looming wave of litigation."

It may be debatable if the use of the term "independent living" is in and of itself a violation of fair housing laws, but the issue cuts much deeper than that. Owners and managers of senior housing, if they haven’t already done so, are going to have to take a hard look at how they "operationalize" the concept. From advertising to admissions policies and practices, from day-to-day operations to lease enforcement, the potential exposure seems significant and growing.

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