Use caution evaluating CCRC applicants, legal expert warns

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Paul Gordon, partner at Hanson Brigett LLP
Paul Gordon, partner at Hanson Brigett LLP
A continuing care retirement community must make sure it is using standard, uniform questions in screening applicants, experts emphasized at the LeadingAge convention.

“The questions have to be asked of all applicants and pertain to the requirements of tenancy,” said Paul Gordon, JD, partner at Hanson Bridgett LLP law firm in San Francisco. His session, “The Legal Implications of CCRC Applicant Screening,” took place in Washington, D.C., on Oct. 17. He presented with Avon Long Term Care Consultants CEO Gary Corliss, FSA, CSA.

CCRCs have often used anecdotal information to evaluate a resident's health, with no specific scoring or standard underwriting criteria.

That raises issues from a legal perspective. CCRCs must make sure they are being fair and non-discriminatory when accepting applicants, although there is an Americans with Disabilities Act exception when using standard underwriting criteria.

Using the same questions and criteria can protect the provider. Gordon also cautions against overlooking a medical screening because a potential resident is, for example, “the Bishop's mother.”

The ADA and the Fair Housing Act, which protects against discrimination in categories that include race and religion, are where CCRC screeners can stumble. They must walk a fine line between asking questions related to the services offered and those that could appear to be discriminatory or irrelevant.

A CCRC offering a long-term care model for a resident for the rest of his or her life has greater allowance in asking detailed health questions than a fee-for-service model, Gordon said. But be wary of asking for a full health history, such as number of children.

“Many ask about live births," Corliss said. "There is no actuarial data that reflects that to be an issue.”