Accommodating the disabled: Know your obligations and options for residents with special needs.

The Americans with Disabilities Act (ADA) along with other federal statutes, including Section 504 of the Rehabilitation Act of 1973 and the Fair Housing Act, protect the rights of the disabled. Long term care facilities must be aware of their regulatory responsibilities, as well as how they can make provisions for specific individuals with disabilities.

Accommodation for a resident's physical or mental limitation can require a change in philosophy and procedures-- even added equipment--or it can mean a simple adjustment next time the facility is refurbished. The basic mandate is that the organization reasonably try.

The ADA clearly applies to nursing homes as places of public accommodation, although the matter is less clear in regard to assisted living facilities, according to Paul Gordon, a health care facility attorney with San Francisco-based Hanson Bridgett Marcus Vlahos Rudy LLP. Assisted living, he says, can be considered a residential environment, under the aegis of the Fair Housing Act-so for all practical purposes, the coverage is the same.

"Most of the disability issues in long term care settings revolve around whether you admit this particular person and whether you eventually transfer out people because of a change in mental or physical health status," says Gordon.

The facility must consider whether refusing admission to a person with a disability constitutes discrimination. Gordon explains that the primary rule is that while a residence must offer reasonable accommodation, it does not have to change its basic program.

Even without referring to the ADA, under the Omnibus Budget Reconciliation Act (OBRA) 1987, the nursing home must accommodate residents with impairments, says Faith Mullen, an attorney and senior policy advisor at AARP's (formerly known as the American Association of Retired Persons) Public Policy Institute, Washington, D.C. Under OBRA 1987, facilities must create a plan of care with an eye toward physical, mental, and psychosocial functioning. Going by that consideration lone, many accommodations for disabilities are essential.

"A resident doesn't have a private right to sue under OBRA," Mullen says. "While the person could bring a malpractice suit or complain to the state surveyors or to CMS (formerly known as HCFA), not many cases of this type are litigated."

Industry viewpoints

Citing "reasonable" accommodations, American Health Care Association (AHCA) attorneys say that this doesn't mean the resident must be accommodated as per his or her specific request. A person who is hearing impaired might be given writing implements for communication or be encouraged to have a family member come and sign, suggests Tom Burke, an AHCA spokesman. Or, a CNA might help guide a blind person. But the facility may not insist on this particular alternative.

"For those with a long term disability, each nursing home has to develop therapies and social services that will address specific needs," says Susan Klein, vice president of clinical operations for Exton, Pa.-based Brandywine Senior Care. "In some of our buildings we do have residents with Seeing Eye dogs. We feel we definitely need to make that provision."

According to Klein, Brandywine operates 14 skilled nursing facilities in Pennsylvania and New Jersey and six assisted living residences in Delaware, Pennsylvania, and New York. All of these facilities have worked with their local phone companies to provide special adjustments for the hearing impaired. Overall, Brandywine has been very aggressive in adding assistive technology. It also has a pilot project offering computer use for email as well as a video means of keeping in touch with family members. "We put quality first and then find that these programs pay for themselves," Klein says.

Most residents with disabilities who enter the Brandywine homes come in with services already in place, either through hospital social services or community agencies.

New role for assisted living

In June 1999, the Supreme Court upheld the "most integrated setting mandate" of the ADA in Olmstead vs. L. C., deciding that two Georgia women had the right to leave a state-run psychiatric institution and move into a community-care facility, despite the state's claim that the women were denied integration because of cost, not discriminatory action.

A couple of years before Olmstead granted the disabled greater flexibility in choosing a residence, three people who were comfortably settled in an Assisted Living Concepts (ALC) facility were compelled by Washington state to leave their ALC apartments. "Case managers were satisfied with the services the residents received, but the state forced them to move," says Nancy Gorshe, senior vice president of community relations for the Portland, Ore.-headquartered chain. "In light of Olmstead, that situation is now ironic."

According to Gorshe, ALC performs a needs-based assessment with all applicants, so that the residence can prepare to serve people's individual needs. "We always hope to be available to the disabled population, although sometimes that depends on the person's problem as well as the group in the house," she adds.

Because ALC specifically tries to provide low- and moderate-cost housing, its residences depend on "brokering" arrangements-such as contracting for van services rather than having transportation always available. "Our directors are used to doing business that way, so when we have a resident with disabilities, we take the same approach," states Gorshe. A blind applicant, for instance, would be asked what agencies now provide her with various types of help. Thereafter, those public or private organizations might continue services when the person enters the ALC residence.

"We supply the directors with a manual of contacts in the larger community and train them how to make use of the help available," Gorshe adds. She believes the aftermath of Olmstead will be extensive, in that states may change many of their assisted living regulations to open facilities for younger populations of disabled residents.

Questions remain

"The whole point of assisted living is to provide a way for persons with disabilities to stay independent as they age," observes Rosalie Kane, DSW, a professor at the University of Minnesota School of Social Work in St. Paul, and an expert on the assisted living industry. "The question is: How disabled? Will assisted living look after people with major disabilities or will those residents have to leave? Some states and providers think the line should be drawn at those with cognitive impairment who wander and those who are medically unstable."

Another question is how residents with lesser disabilities feel about living alongside those with greater impairments. "Usually the reaction is a negative one," Kane says. "This also depends on who is being marketed at the front end and what happens when this particular population has aged five or six years, and whether they themselves then want to stay or are willing to move on."

A person who is blind can live anywhere, Kane points out. A paraplegic or quadriplegic, those with arthritis, asthma, chronic heart failure, and so on can all live anywhere with appropriate services-so of course they can live in assisted living. "I'd like to see all housing-with-service settings provide basic accommodations for all disabilities," Kane says.

Residents with Alzheimer's

Alzheimer's and related dementias are common disabilities in long term care, yet the issue of caring for such residents is not a settled one. Assisted living is often able to fall back on the state regulations that prescribe who can be admitted and who can be retained as a resident, advises attorney Gordon. But fewer such limits apply in nursing homes. Unprepared nursing facilities also might face the dilemma of a resident with. advanced Alzheimer's who is agitated and presents a danger to others and himself.

Not many laws exist that define these issues, and case law, too, appears to be scant. Gordon is aware of one federal case in which the judge decided that a combative person with Alzheimer's had to be admitted to a nursing home. "The licensure law in that state did not have categories and did not distinguish between facilities able to cope with a highly agitated Alzheimer's patient and those not able to do so," he says.

Gordon adds that even without distinct licensure categories, an attorney should be able to demonstrate the real-world situation to a court if, for instance, an assisted living facility has sliding glass doors in every room and no walking courts for wandering. In such a situation, a resident with Alzheimer's should be referred to a place that has staffing, building design, and a program intended to meet this special need.

Transfers may produce litigation 

Most of the discrimination cases that facilities face arise from situations where the residence asks a person with an increasing disability to transfer out, according to Gordon.

"When someone is asked to move out, regardless of the fact that this is a rented, and not owned, residence, the person feels as if she is being asked to leave her own home," he says. "She is much more likely to resist and more likely to hire a lawyer than someone who is simply denied admission in the first place."

The most difficult scenario, Gordon adds, is for the unlicensed, congregate facility because this type of residence has no state law on which to rely in denying admission or in transferring out a resident. "A lot of times these facilities end up with people who have the greatest needs, without a program in place to care for them directly," he explains. The quandary is whether the discrimination laws allow congregate residences to ask someone to transfer out.

Deaf and hearing impaired

"The tendency is to assume that deaf people just can't communicate. It's even easier to make that erroneous assumption when the person is elderly," says Sarah Greer, an attorney with the National Association of the Deaf (NAD), Silver Spring, Md. "The deaf can communicate but that communication may have to be facilitated by an interpreter. People also lose hearing with age and need rehabilitation and training in sign language."

Greer believes this rehabilitation should be offered by nursing homes, adding that, "Accommodation for the deaf and hearing impaired is an area of great need for people who are essentially helpless and dependent on having those services provided." (See "Aids and services for the hearing impaired," page 12.)

A resident's best friend

Service animals include guide dogs, hearing/signal dogs, seizure-alert animals, hypoglycemia-alert animals, mobility dogs, Parkinson's tremor-interruption dogs, and emotional-support cats. These animals are trained to work for a person with a disability and usually have little contact with others.

"The most important point to us is whether the handler can maintain care of the animal in a nursing home setting," says Tamara Whitehall, the coordinator of the National Service Dog Center at the Delta Society, Renton, Wash.

Not only is a backup person needed to walk the dog and perform other care services for the animal, but a second backup must be arranged should the first one become unavailable.

Another consideration is whether the animal presents a threat to safety-such as being a trip hazard in a two-person room. Other problems may include biting, barking, or frightening other residents. Education may be required for roommates and others regarding interactions with the animal, and a facility can require that any service animal be well controlled. Usually, a healthy animal is not an infection-control risk, but those who come into contact with it should wash their hands. Animals may also be kept out of treatment areas.

Accommodations for the blind

A facility can take many steps to help a blind person to adjust, but doing so might require some help, counsels Alberta L. Orr, director of the national aging program at the American Foundation for the Blind, New York. (See "Ways to help the visually impaired," below.)

"The first thing a facility should assure is that the person have ADA-accurate Braille labeling on the door, as well as everywhere else the law requires," Orr advises. "When a blind resident first enters the facility, someone should help the person become acquainted with the environment. This works better if you bring someone in from an agency or independent-living center."

Orr also suggests that caregivers be in-serviced to help them understand the needs of the blind or visually impaired. "Nursing homes should try to create a functional environment for those with low vision so that they can move about safely," she recommends. "A person aged 65 needs four times as much light to see as someone who is 25. A person who is 80 needs 10 times as much light to see faces or read." She emphasizes that redesigning some aspects of your facility to accommodate residents with visual impairment will help any older person.

RELATED ARTICLE: AIDS AND SERVICES FOR THE HEARING IMPAIRED

Places of public accommodation must provide auxiliary aids and services to the hearing impaired to ensure effective communication, states the National Association of the Deaf (NAD) in its prepared memo on nursing home required services. NAD suggests that these include:

* qualified interpreters and notetakers

* computer-aided transcription services

* written materials

* telephone handset amplifiers

* assistive-listening devices and systems

* telephones compatible with hearing aids 

* closed-caption decoders and open- and closed-captioning telecommunications devices for deaf persons (TDDs)

* videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments

WAYS TO HELP THE VISUALLY IMPAIRED

Alberta Orr, director of the national aging program at the American Foundation for the Blind, New York, offers suggestions for facility adaptations for older persons who are blind or visually impaired.

* Provide plenty of lamps in recreational spaces

* Have chairs near windows for activities in natural light

* Use blinds to allow natural light to be adjusted

* Use upholstery with texture for tactile clues to identification

* Use brightly colored accessories (vases, lamps) to make furniture easier to locate

* Avoid upholstery and carpet with confusing stripes and checks

* Replace light bulbs regularly

* Eliminate all trip hazards, such as worn flooring or area rugs

* Use color contrast and place light objects against dark backgrounds

* Install doorknobs that contrast in color with the door

* Paint door frames a contrasting color

* Mark the edges of all steps and ramps

* Provide some telephones with large-print key pads or dials