Crossing the Gray Line: Managing Residents Aging in Place
It can seem innocent at first. The maintenance man agrees to drive a long-time elderly resident who can’t drive any more to the grocery store once a week. He seems like a nice old man, and reminds the maintenance worker of his granddad. Every Monday morning they ride in the resident’s car to fill a shopping list.
For weeks this little bit of customer service outside the lines of normal apartment management practices appears to be harmless. Then one day the 15-minute ride turns into tragedy. Both the maintenance man and resident are badly injured in a crash. And suddenly, this seemingly small gesture becomes a serious situation.
Enter the lawyers and the beginning of a really messy situation.
When Good Intentions Lead to Liability
The likelihood of such a scenario is on the rise in the apartment industry. With an aging population and recent trends that suggest more residents are aging in place, requests for services above and beyond normal apartment industry customer service practices are becoming more commonplace.
At April’s Texas Apartment Association Education Conference in Dallas, apartment operators shared a number of stories about long- and short-time elderly residents who asked for special requests and the frustrations in dealing with them. The tales included incidents of elderly residents requesting unnecessary service appointments just to have somebody to talk to, and a footnote from one site manager who said the maintenance team draws straws to see which unlucky soul will answer the frequent calls from one persistent elderly woman.
“Everything starts with best intentions,” said moderator Nicolle Block, a Certified Apartment Portfolio Supervisor (CAPS), who moderated a discussion with a pair of Texas lawyers. “It starts with a customer service gesture, and at some point it goes beyond that. That’s where we need to make sure we’re being more aware of potential liability.”
Addressing Aging Residents and Fair Housing Issues
Attorneys say that apartment management must be careful not to cross over into what has become a very fine, gray line between providing good customer service and putting the property at risk. Aside from general liability risks, filling or not filling some requests could venture into Fair Housing issues depending if the location of the property is in a city that recognizes aged persons as a protected class.
Attorney Howard Bookstaff of Houston-based Hoover Slovacek, LLP, says properties have to determine if a special request falls within a request for accommodation under FHA, and then act accordingly.
“What I do when I get questions like this, is to determine whether the situation can be analyzed under existing concepts,” Bookstaff said. “If we get a request to pick up groceries for a resident or drive residents to the grocery store, and it’s because of their inability to drive you might want to consider analyzing the request in terms of a request for an accommodation under the fair housing act.”
But the key is whether the obligation to fulfill the request falls within the normal operation of providing housing. A request can be denied if it poses undue financial and administration on the housing provider or fundamentally alters the nature of the provider’s operation, according to a 2004 statement on accommodations by The U.S. Department of Housing and Urban Development and the Justice Department.
For example, if a property doesn’t offer a shuttle service for residents to purchase essentials like prescriptions or groceries, denying a request from any resident regardless of disability under FHA rules is not a violation.
“If a resident asks to be transported to the grocery store and you don’t offer shuttle service the request could be considered as fundamentally altering the nature of what the provider does, which is provide housing,” Bookstaff said.
Understanding Boundaries: Professionalism vs. Customer Service
Bookstaff related a story where the maintenance man of a client befriended an elderly resident and took him to the grocery store regularly. On one occasion, the resident decided not to go and told the maintenance man to go ahead and use his truck. Shortly after the maintenance man left, the resident called police in a panic. He had looked out the window of his unit, forgot that he loaned the truck and assumed it was stolen.
Fortunately, the story had a happy ending. However, Bookstaff says that property managers must recognize that these sorts of acts of kindness carry a huge potential burden.
“These types of problems can be managed through employee training,” he said. “On-site staff needs to understand the boundaries of professionalism versus customer service.”
Bookstaff acknowledged that apartments today are faced with not only aging-in-place resident issues but also those that come with new residents who probably need to be in assisted living. He acknowledged a growing industry trend of children placing their parents from the family homestead into apartments rather than expensive assisted living facilities.
Headaches for property managers arise when the resident needs help and the children are nowhere around. A doctor’s office may call wanting to confirm an appointment and expect an answer from the front office.
It also raises the issue of liability with a resident who has memory issues and doesn’t remember to turn off the gas stove, and subsequently burns down the unit. Another is potential eviction issues.
Properties are wise to set some guidelines early on to help prevent a situation like that or others from escalating, Bookstaff said.
“You really have to identify the limits of what you do as a housing provider in the beginning of the relationship,” he said. “That can be done in an addendum or in rental criteria. It’s a balancing act between being sensitive to Fair Housing issues while not misleading applicants into thinking you provide assisted housing.”
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