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Two Independent Living Lawsuits Settle

Attorneys with AARP Foundation Litigation served as co-counsel in two California lawsuits brought by 80-year-old-plus residents of residential care facilities. The lawsuits challenged policies that the residents said restricted their ability to age in place. In one case, a resident was forced to move to a nursing-home type of setting, and in the other case a resident's ability to use the dining room was reduced. Both lawsuits were settled recently.

The Disputes

Sally Herriot had lived in Channing House (CH) in Palo Alto, Calif., since 1992 without any problems. Herriot developed various medical conditions that limit her ability to do many daily life activities, such as bathing and dressing, so she hired at her own expense private duty aides. In April 2006, CH notified Herriot that because of her employment of these aides it concluded she required transfer to CH's assisted living unit from her independent living apartment. Herriot wanted to remain in her apartment, where she could come and go at her choosing, had privacy, and entertained friends and family. CH's assisted living facilities, Herriot alleged, typically required sharing a small room (14 feet by 15 feet), with only a thin curtain around individual areas, had shared bathroom facilities, required residents to be in bed by 8:30 pm and required them to maintain open doors to their bedrooms for staff access. She would have had to divest herself of much of her furniture and possessions, would not be allowed to have overnight visitors and family and friends would only be able to stay for very limited visits.

Herriot's family and physician strongly agreed that a move to shared assisted living could have a negative effect on her physical and emotional health, and she sued CH, alleging among other things that its policy violated the federal Fair Housing Act (FHA) and Americans with Disabilities Act (ADA) — both of which prohibit discrimination on the basis of disability — as well as counterpart laws in the state of California. AARP Foundation Litigation attorneys' co-counsel in Herriot v. Channing House were the private law firm of Relman and Dane and the Fair Housing Law Project of Silicon Valley.

Lillian Hyatt lives in The Sequoias, an assisted living facility that serves more than 300 older adults in San Francisco. Hyatt has a swallowing disorder that limits her selection of food, requires her to puree some of her food, and necessitates lengthy meal periods so she has sufficient time to prepare and eat her food. The Sequoias provides meals for residents in a dining room that on one side has full-service wait staff, a fixed menu, and a dress code, and on the other side a buffet service that allows a more casual option with greater flexibility in food choices. However, because The Sequoias had required walkers be checked with a waiter and stored in a closet during the meal for both sides of the dining area, the buffet side was effectively foreclosed to those with mobility impairments.

Hyatt, who can select food from the buffet and carry her tray back to her table using her walker without assistance from others, asked to change this policy. After trying to settle the case informally she received only a small concession allowing her to approach the buffet during a narrow window of time, inconvenient to her, inappropriate to her needs and subject to The Sequoias' scheduling or change of heart, and she sued. Like Herriott, Hyatt v. Northern California Presbyterian Homes argued that the Sequoias' policy violates her rights under the FHA, ADA, and counterpart California state laws. She was represented by attorneys with AARP Foundation Litigation and with Disability Rights California.

What's at Stake

Because the incidence of disability increases with age, and more and more people of all ages with disabilities are living independently, the principles at stake in these lawsuits are important to a wide range of people. The applicability of federal and state housing and disability anti-discrimination protections to continuing care retirement communities and residential care is an emerging area of the law, and AARP is working vigorously to enforce the principles of these critical civil rights laws in order to allow older people to live as independently as possible, for as long as possible.

Case Status

Sally Herriot and Channing House amicably resolved the litigation between them after the federal district court entered summary judgment in favor of Channing House, and prior to a hearing on the appeal taken by Herriot. Lillian Hyatt settled her dispute prior to consideration by the U.S. Court of Appeals for the 9th Circuit.