Last month the U.S. Department of Justice (DOJ) and the Fort Norfolk Retirement Community Inc. (“Fort Norfolk”), a Virginia nonprofit continuing care retirement community, entered into a Consent Order, resolving allegations that Fort Norfolk violated the Fair Housing Act by instituting policies that discriminated against its residents with disabilities. This is the most recent guidance available regarding how the DOJ interprets the Fair Housing Act (FHA) in the senior living context.

The DOJ alleged that Fort Norfolk prohibited and limited residents in the assisted living units from eating in dining rooms located in the independent living residential tower or attending certain events held outside their building. The community also allegedly required residents who used scooters to pay a $300 non-refundable deposit, purchase liability insurance and obtain Fort Norfolk’s permission. Finally, the DOJ alleged that when residents and family members complained about these policies, Fort Norfolk retaliated against them in violation of the Fair Housing Act.

Although not binding on other communities, the Consent Order is informative because it shows how the DOJ interprets and applies the FHA in the senior housing context. It also illustrates the financial burden that can be incurred by communities as a result of these types of investigations. Fort Norfolk will pay approximately $390,000 towards a settlement fund. Fort Norfolk is also required to: (1) adopt policies related to dining room and events, motorized wheelchairs and scooters, and reasonable accommodations; (2) appoint an individual to serve as the FHA Compliance Officer; and (3) form a Level of Care Committee.

The Fort Norfolk’s Dining Room and Events Policy states that participation by assisted living residents in independent living events and dining will be assessed on an individualized basis subject to medical necessity and recommendations of a Level of Care Committee and FHA Compliance Officer. Such residents may have personal aides to assist with transportation and feeding, nevertheless before participating in such independent living activities, the community may require they execute an Against Medical Advice Form and Liability Release Form. The scooter policy allows for therapy staff to assess residents’ ability to safely operate the device in certain situations, including in the event that a resident has a medical condition that would reasonably be expected to interfere with the resident’s ability to operate a motorized mobility aid in a safe manner. Such assessment shall be performed in consultation with the FHA Compliance Officer and may result in denial of usage of such device.