When Accessibility Noncompliance Puts Assisted Living Communities at Risk
Any assisted living property manager knows that accessibility noncompliance with the Americans with Disabilities Act is an issue. Residents who require mobility assistance or have a disability must be able to access the community just as any able-bodied person.
Installation of ramps, grab bars and handicap parking places may signify that the property is compliant. And one might assume that because the property passed final inspection by the local building inspector or government official when it was built or updated that it meets accessibility standards.
Don’t bet on it, says Greg Proctor of Windsor Compliance.
How the property looks and whether or not it’s within the requirements of the various accessibility laws are two different things, he says. Many times, property managers believe the community meets regulations only to find out the hard way, when someone files a complaint.
Communities in violation can face exposure from the Department of Justice, HUD, state agencies for the low-income housing tax credit, and civil litigation from residents, prospects and anybody who just happens to come onto the property.
Ultimately, noncompliance sets up a community for a costly legal battle that could cost millions even if settled out of court.
Owners and property management companies can’t play it safe by assuming their communities are in compliance.
Identifying accessibility noncompliance issues so they can be corrected
Proctor, an authority on housing compliance, has seen his fair share of violations at assisted living and senior properties. Sometimes he doesn’t have to get out of the car to realize a property is at risk.
Something as simple as the absence of a ramp in the parking lot or width of a door can set off unwanted complaints.
Most of the time, he says, property operators think they are compliant and don’t understand the extent of liability for not following federal regulations.
“I’ve never been to a single property – I’ve been to thousands of properties – where there is not at least one compliance problem,” Proctor said. “I tell them, ‘It’s right under your nose and you’re out of compliance. And nobody’s telling you that. You’re not worrying about it but sooner or later, somebody is going to come around and sue you for it.’ ”
In recent years, Proctor said, the Department of Justice has brought claims against property owners who have large portfolios because of violations, costing millions of dollars.
Also, properties are being scrutinized by organizations or individuals who are purposely looking for violations at housing communities, restaurants, gas stations and other places of business, he said.
Spending a little now on an inspection to avoid a costly lawsuit
Proctor says that the list of potential violations an assisted living property may face goes beyond the basics of providing ramps or handicap parking places. And just because the construction company installed those and other accessible features doesn’t mean they meet accessibility standards.
A frequent violation is the height of mail boxes.
“The primary ones are ones that people just think are in compliance and that is their mailbox,” he said. “They don’t think about mailboxes being too high. There are many regulations that tell you exactly what compliance is supposed to be like and they end up not happening at the property.”
The issue may not arise until a disabled resident files a discrimination case against the property. By then it’s too late.
The best way to avoid potential complaints is to have the property inspected for compliance by a third party, Proctor said. Windsor Compliance works with assisted living operators to help identify accessibility compliance issues so they can be corrected.
It can be money well spent.
“This is a very simple way to help keep you from getting sued, to stay in compliance and make sure that you do the things and correct the things you need to correct to be in compliance,” Proctor said.
“The cost is not that significant compared to a potential liability.”
Proctor will offer his insight on how assisted living properties can maintain compliance at “All Access Pass: A Compliance Diary for Assisted Living,” an educational session April 17 at the Texas Assisted Living Association (TALA) 2018 annual conference and trade show in Galveston, Texas.