Disability Discrimination in Long-Term Care: Using the Fair Housing Act to Prevent Illegal Screening in Admissions to Nursing Homes and Assisted Living Facilities

摘要

Nursing homes and assisted living facilities routinely require applicants to disclose an extensive amount of medical information. Not infrequently, these long-term care facilities use the information to deny admission to those applicants with relatively greater care needs. These denials constitute illegal discrimination under the Americans with Disabilities Act and the Rehabilitation Act, but generally consumers are unaware of these protections or find litigation too expensive and time-consuming under their generally difficult circumstances.These illegal denials of service could be limited by active enforcement of the Fair Housing Act’s no-inquiry regulation, which prohibits a housing provider from inquiring into an applicant’s medical condition. If facilities in the first place had only limited access to information about an applicant’s medical conditions, the facilities would not have the means to illegally discriminate, and applicants would be protected without need of litigation.To this point, the no-inquiry regulation has not been utilized against long-term care facilities, due to a general but superficial belief that the no-inquiry regulation is incompatible with long-term care. This Article offers the first analysis of how the no-inquiry regulation could be employed in a long-term care setting.Courts consistently have ruled that long-term care facilities are “dwellings” and thus subject to the Fair Housing Act (FHA). The question at hand is if and how the FHA’s no-inquiry regulation can be applied in a long-term care setting. The Article examines the no-inquiry regulation’s exceptions and determines that none applies to a long-term care admission. A handicap (the term used by the FHA) is not required for admission, and applicants with handicaps are not necessarily given priority. Thus, enforcement of the no-inquiry regulation would prohibit long-term care facilities from obtaining any medical information from applicants.If enforcement of the no-inquiry regulation were to become reality, a long-term care facility in response likely would establish priority in admission for any applicant who needs the facility’s services and whose care needs do not exceed the facility’s capabilities. Establishing such a priority would allow a facility to obtain medical information from applicants, but that information would be limited to the information necessary to determine if the applicant were entitled to priority.Thus, contrary to the conventional wisdom, the no-inquiry regulation would be workable in a long-term care setting and furthermore would benefit applicants. Facilities would establish appropriate admission priorities and would have access only to the medical information relevant to those priorities. Illegal discrimination based on medical condition would lessen because facilities would not have access to the irrelevant medical information that otherwise might prompt such discrimination.