As a physical therapist who has worked in and visited countless skilled nursing facilities and continuing care retirement communities, I have become painfully aware of how federal and state regulations can shape your decisions around managing these facilities and keeping your residents safe.
I have been pulled into dozens of meetings discussing renovations, gym designs or the development of safety policies where all our plans had to be scrapped due to potential conflicts with existing regulations.
Many administrators for these facilities are familiar with the Americans with Disabilities Act (ADA) and its implications. However, managing the differences between building code accessibility provisions and federal accessibility standards is a unique skill set on its own.
Fair Housing Act hurdles
Despite the focus on the ADA, I have found that Fair Housing Act (FHA) regulations are far more likely to have these communities find themselves in a potentially expensive lawsuit.
This legislation affects how CCRCs approach everything from marketing and remodeling to general resident policies. As housing providers, our facilities are legally obligated to uphold fair housing laws like any apartment, condo or other housing that is sold, leased or rented.
Although these regulations are often violated purely due to lack of awareness, the level of civil penalties can be significant.
In 1988, the Fair Housing Amendments Act added disability as a protected class with three obligations:
- Must permit reasonable physical modification at the resident’s expense.
- Must make reasonable accommodations in housing rules and policies.
- Must include accessibility features in designing and constructing new (after 1991) multifamily dwellings.
These rules leave room for interpretation at your own risk, with only the basic tenancy rules to lean on as protection. Although there are multiple areas that facilities need to consider, this article focuses on creating policies affecting electric scooter/wheelchair users.
I still remember my first meeting with my administrator at a large CCRC after a scooter incident. He wanted therapy to be the “bad guy” and to tell the residents they could no longer safely use their scooter in the facility.
This was not a simple request as it would completely change the resident’s level of independence and ability to access areas of the community. To many, it seemed clear this resident was a risk to the facility staff and other residents. However, after a discussion with a well-seasoned rehab team, I became aware that any restrictions or new policies implemented needed to be crafted carefully.
That night, I went home and, for the first time, researched the Fair Housing Act. I found many civil cases regarding scooter policies that have been tried in court and found that despite significant unknowns, some rules of engagement had begun to form.
I have broken down what I learned into some basic dos and don’ts, but a clear theme is that all policies must be based on valid safety concerns and must not meaningfully restrict access.
Do
- Document if an incident threatens your residents’ health or safety to support any policy.
- Communicate with your residents about existing policies and seek input when creating new ones.
- Ensure policies clearly state the direct concern they seek to address.
- Consider speed limits and rules on residents’ right of way.
- Designate safe areas for parking/charging of devices.
- Create policies that hold residents accountable for excessive damage caused.
- Encourage training with therapy on safe management.
- Seek assistance from an Assistive Technology Professional (ATP) for device-specific questions.
Do not
- Require liability insurance.
- Restrict devices for aesthetic reasons.
- Restrict devices from a specific floor or area that allows pedestrians.
- Restricts manual wheelchair/mobility devices in the same way as powered devices
- Require training/testing without cause.
When I returned to my administrator with news that I did not feel I had grounds to remove the individual’s device, he asked if therapy had a formalized safety test we could use. Although there are standardized tests that can be completed for powered mobility device users, the complexity of each case prevents any test from designating someone as a safe vs. unsafe user.
Any decision to remove a mobility aid from a resident should be based on input from the entire interdisciplinary team with a clear intent of balancing safety and independence.
In this case, the resident, the physician, the rehab team, and the designated family agreed to allow continued use but recommended training with therapy and increased caution in specific situations.
Balancing the rights of each resident with the rights of the facility and other residents will continue to be a challenge for care facilities as this population grows and continues to live longer. Although there is no one-size-fits-all method that applies to all facilities, we continue to gain a better understanding of guidelines, and the best approach to these challenges will always be a strong interdisciplinary team.
Kevin Cezat, PT, DPT, GCS, RAC-CT, is the Director of Clinical Excellence for Therapy Management Corporation, a CEU presenter, and a board-certified specialist in geriatric physical therapy. He works in long-term care facilities in central Florida and oversees clinical quality in facilities spread over 20 states.
The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.
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