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Wheelchairs Prohibited in the Last Place You’d Expect

In March 2017, a woman met with the admissions coordinator at Madison York Assisted Living in Queens, inquiring about placement for her mother-in-law, who was using a wheelchair while recovering from hip surgery.

“Wheelchairs are not allowed in the facility,” the coordinator told her. “Walkers, canes, rollators, hemi canes, something like that is acceptable.” But, he went on, “we cannot accommodate a wheelchair-bound patient.”

In November, another woman seeking assisted living for her mother-in-law emailed the admissions coordinator at VillageCare at 46 & Ten in Manhattan. “We do not admit residents on wheelchairs,” the coordinator wrote back.

By phone, the woman explained that her mother-in-law had used a chair for decades and could transfer in and out without assistance. The coordinator wouldn’t budge. “We could not accept anyone in a wheelchair,” she said.

Yet at both places, and at two other assisted living facilities in New York City, people who made similar inquiries — but described their relatives as able to walk — were encouraged to submit applications.

None of these people actually had family members who needed assisted living. They were testers, professional actors working for the nonprofit Fair Housing Justice Center to investigate whether such facilities discriminate against wheelchair users.

Excerpts from their recorded conversations are included in a federal lawsuit filed against those centers, claiming they discriminate against people in wheelchairs and are violating the Fair Housing Act, the Americans with Disabilities Act and other federal laws.

“People were being threatened with eviction, or actually evicted, for even part-time use of a wheelchair,” said Fred Freiberg, director of the anti-discrimination group, which brought the suit after receiving complaints from residents and families.

“It’s outrageous. They were told, ‘If you’re going to use a wheelchair, you can’t live here anymore.’”

Related cases have popped up for years in senior housing nationwide, including continuing care retirement communities. In 2015, for instance, the Justice Department reached settlements with a continuing care facility in Norfolk, Va., and one in Lincolnshire, Ill., for discriminating against residents with disabilities.

Unlike nursing homes, which are subject to federal regulations and regular inspections, assisted and independent living facilities operate under widely varying state laws.

Oklahoma and Alabama require residents to be “ambulatory,” for instance, but Kentucky allows admission of the “mobile nonambulatory,” meaning people who use walkers or wheelchairs.

“Many states have similar policies, though with different language, like ‘must be able to self-evacuate,’ which is often interpreted to mean ‘no wheelchairs,’” said Susan Silverstein, a senior lawyer for the AARP Foundation, which is representing the plaintiffs. “Facilities often justify their policies by citing state laws that are ambiguous.”

Administrators of the facilities named in the New York lawsuit, including Elm York Assisted Living and Madison York Assisted Living, (which share ownership with the other residence in Queens), often cited state laws as reasons to exclude wheelchair users, according to the complaint.

And in this case, they appear to be correct. New York State regulations governing “adult care facilities” and Medicaid-funded assisted living programs, which all four facilities are licensed to offer, do prohibit residents who are “chronically chairfast and unable to transfer” or require assistance to transfer — even when, as in this case, the buildings have elevators.

Those 40-year-old policies predate the federal laws barring discrimination based on disability, but the state has not revised them.

For that reason, the lawsuit also names the state health department and commissioner, plus Gov. Andrew Cuomo, as defendants.

Neither the governor’s office nor the four assisted living facilities would comment.

The state’s health department said it considered “reasonable wheelchair accessibility” in adult homes a priority and that it began working with existing homes last year on “remediation plans that include appropriate upgrades.” Newly constructed adult homes, it noted, must comply with federal, state and local accessibility requirements.

The suit asks that the four facilities adopt nondiscriminatory admission and retention policies, and that the state update its regulations to reflect federal law. It also seeks training and monitoring to ensure compliance.

While administrators might still turn away applicants for individual reasons, they couldn’t maintain blanket rules against wheelchairs. “There’s going to be a much larger number of people in the next few years who will need assisted living, and those facilities need to be open to people,” Mr. Freiberg said.

Although the assisted living industry mainly attracts people who are paying for the care themselves, “the percentage covered by Medicaid is growing,” said Eric Carlson, a lawyer at Justice in Aging, an advocacy group not involved in the lawsuit.

A recent Government Accountability Office report pointed out that in 2014, Medicaid covered assisted-living services for more than 330,000 people in 48 states — part of the effort to support alternatives to expensive nursing homes.

A favorable settlement or trial verdict in the New York lawsuit could bring changes in assisted living beyond Medicaid programs and beyond New York State. “Private-pay assisted living is still subject to the Fair Housing Act,” said Jota Borgmann, senior staff lawyer at Mobilization for Justice, a legal services organization and co-counsel in the case.

Similar court cases have already changed assisted living regulations and practices around the country, Mr. Carlson pointed out. “It’s not like flipping a switch,” he said. “It’s step by step, but they have impact.”

While the relatives that testers described to administrators were fictitious, a retired lawyer in her 60s, known in court filings only as Jane Doe because she feared she might be blackballed from care facilities, is quite real. She’s also a plaintiff in the lawsuit, along with her brother, who acts as her power of attorney.

Disabled by severe osteoporosis, the plaintiff lived at VillageCare for five years, until last spring when a urinary tract infection and its complications sent her to a hospital, then to a nursing home for rehabilitation.

After two months, according to the complaint, VillageCare told her she needed more assistance than it could provide, including help with “ambulation,” and told her she could not return. It began eviction proceedings, which her brother contested.

In December, the facility agreed to an in-person interview and assessment. The session — including cognitive tests, sitting and standing, and taking her shoes on and off — lasted four hours.

“It was grueling,” said her brother, who traveled from his Florida home to accompany her. “It was a very difficult thing, but my sister did it. She walked with her walker just fine.”

But VillageCare refused to readmit her, saying she needed assistance with activities of daily living, including “locomotion.” So she remains in a nursing home, where she is discouraged from walking at all, and worries that she may never go home.

“It’s very disheartening,” her brother said. “I keep telling her, ‘You’re going to be out any day,’ and I’ve been wrong.”