ADA compliance: Will you be the next one sued?

Did you see our recent article about the lawsuit that four residents filed July 13 against Brookdale Senior Living, claiming understaffing and violations of the Americans with Disabilities Act?

Of course, this isn’t the first time a senior living operator, including Brookdale, has been involved in a legal action related to accessibility issues, and most likely, it won’t be the last time either.

But the three firms representing the plaintiffs in this case believe this one is the first potential ADA-related class action lawsuit against an assisted living community. And they say damages could exceed $45 million if the lawsuit is certified as a class action and the plaintiffs win.

Reading the complaint, you might recognize some of these alleged issues in your own communities:

• Toilets inaccessible to people in wheelchairs, causing some residents “to rely on adult briefs and caregiving staff to clean them,” according to the complaint.
• Counters and sinks at heights that prohibit residents in wheelchairs from fully using their kitchens.
• Bathrooms without grab bars, or with grab bars that aren’t compliant, and no roll-in showers. “Both of these barriers are safety hazards, increasing the likelihood of falls,” the lawsuit states. “They also prevent most persons with mobility disabilities from bathing as independently as possible. Some wheelchair users have stopped using their showers altogether and instead take sponge baths, hardly an adequate substitute.”
• Barriers to using the outdoor space from residents’ rooms, including difficult-to-open sliding doors, lips at door thresholds and insufficient space to accommodate a wheelchair.
• Closets without hanging and storage space accessible to wheelchair users, meaning residents must rely on others for assistance in using their closets.

Some might ask why any community serving older adults, some of whom may have mobility issues, lacks features to accommodate them — features that may be required by law.

“Often, the issues are so subtle, and the guidance of the courts and enforcement agencies so complex, fact-specific, or even contradictory, that it is difficult to articulate a course of action that is clearly right under a given set of circumstances,” Paul Gordon, Esq., writes in the American Seniors Housing Association’s “Seniors Housing Guide to Fair Housing and ADA Compliance.”

The design and architectural experts with whom I spoke echoed the sentiment. The ADA, International Code Council/American National Standards Institute 117.1, state requirements, local building codes, the Fair Housing Act — it’s a lot to digest.

They also cited the challenges of trying to meet resident needs while satisfying ADA requirements that generally were written to ensure the accommodation of younger people who have more upper body strength and may not need assistance with activities of daily living such as toileting, and of creating communities with more of a residential feel than an institutional one while still complying with the law. (In fact, if a community is strictly residential with no services, it would fall under Fair Housing Act provisions, not ADA ones, according to Gordon.)

“There are two perspectives to the notion of the ADA and how it is experienced within a residence,” said Rockland Berg, principal and director of business development at three:living architecture, headquartered in Dallas. “Our clients are seeking to promote an active, engaging, aspiring, in many ways youthful-relative-to-the-age-disposition environments. On the other side of that equation is, how do we accommodate aging in place, and what needs to be there to support that?”

A Brookdale spokeswoman said the company will defend itself “vigorously” against the July 13 legal action, which it believes does not have merit. But that vigorous defense will come at a cost, one that smaller operators in similar positions might find difficult to pay.

So what’s an operator to do to ensure that its communities meet residents’ accessibility needs in a compliant way? The experts with whom I spoke offered several insights and tips for you as you build new communities or substantially renovate existing ones.

Work with experts.

Probably the most important piece of advice that came out of my conversations is to rely on experts. You don’t have to know the minute details of relevant requirements, but they do.

“When any building is built, it’s up to the design team to meet the standards,” said Jami Mohlenkamp, a principal at Denver-based OZ Architecture. “Most owners shouldn’t have to worry about how high a sink is.”

Mohlenkamp said he also recommends third-party accessibility consultants. “They will come in and work with an architect, interior designer and owner to do a third-party review that looks at all accessibility issues,” he said. “The reason we like that is, even though we’re experts and we have an obvious professional obligation there, the accessibility experts often are very on top of recent legislation and also interpretations.”

Attorneys should be on your list of experts, too. As Gordon notes in the ASHA guide, “Seniors housing owners and operators should consult legal counsel in determining how best to minimize the risk of a discrimination claim and to respond to any actual complaint.”

Determine your approach.

Ensure that your experts are familiar with the requirements applicable to a particular community. For instance, what percentage of units within the community must be fully accessible? And if a unit has more than one bathroom, is it OK if only one bathroom is compliant?

Then determine your approach.

“When you’re designing for an aging body, it’s really important for a design team and an owner to have a serious discussion about, are they going to meet the minimum accessibility requirements, or are they going to provide more for their residents?” Mohlenkamp said. “Needs change very rapidly, and even if you have a very capable resident moving in today, a year from now it could be a completely different story. We try to promote 100% accessibility, because we believe that it has the best chance of success with the resident in maintaining their independence and their ability to perform activities of daily living.”

Berg said three:living has the same philosophy.

“There’s a lot of gray area and overlapping codes … but at our firm, we tend to acquiesce toward the more stringent code requirement in pursuit of a very residential and hospitality-minded environment,” he said. “In many ways, where something may not necessarily be required by the code as it is, we do it anyway because it’s appropriate in the long run, and I think most architects would probably say that.”

To determine an approach when planning to modify an existing building, a developer must understand the scope of desired improvements, Berg said, because the amount of structural change to a building or the cost of a project usually activates the need to comply with the ADA.

“It becomes an internal strategy and probably needs some legal counsel on ‘how much of that ADA fix-it do I do now?’ ” he said. “There’s no ADA police, so it’s, ‘Do I have a strategy to make these improvements over a reasonable amount of time, and what is that strategy, and is it reasonable, and is it defendable if someone does come in and throws down the gauntlet and says, ‘OK, I want to make an issue of this’?”

Older buildings may force owners to prioritize project goals, said Julie Heiberger, senior project architect at Appleton, WI-based Hoffman Planning, Design & Construction. “In a remodel, you have to make those conscious decisions about what you do, and sometimes the building forces you to do it and you don’t really have as much of a choice.”

Build in some space.

Add extra space into design plans, for construction tolerance, so clearance isn’t affected, Mohlenkamp and Berg advised. Admittedly, doing so can be a balancing act, Berg added.

“Usually the tolerances mean another inch here, another inch there,” he said. “Now the room gets two inches wider to accommodate more than a five-foot turnaround circle. Multiply that throughout the building, and it shows up in real square footage, and it shows up in real costs.”

Also, Mohlenkamp said, be sure the community designer and interior designer work together to ensure that finishes don’t affect available space. And be sure that furniture and mechanical systems placement don’t cause permanent obstructions.

Factor in flexibility.

Pittsburgh-based Martin Siefering, a principal with Perkins Eastman, recommends that, where possible, consider universal design principles for various levels of care and services — assisted living, memory care and skilled nursing — and build flexibility into the design so that spaces can be modified as necessary.

“Create flexibility both in the architecture and in policies, so that if someone moves in and has a specific need, you have the ability to make minor changes to accommodate them and you have policies in place to support that, that communicate what can be changed and how that will be accomplished,” he said.

A bathroom sink, for instance, could include a cabinet underneath that gives the room a residential feel and provides storage but could be removed easily for a resident who uses a wheelchair, Siefering and Heiberger said.

Similarly, Heiberger said, it’s not difficult to include no-threshold shower units in all residences. “Some shower manufacturers provide shower units with full backing behind them — plywood on the back side — so in the future, you could add grab bars in the shower or assistive devices,” she said. “So there are ways to be able to provide the flexibility without incurring the costs upfront for it.”

Heiberger added: “It’s really trying to understand the situation that you’re in and what the needs are and the flexibility so that even if it’s an assisted living and the bathrooms could be smaller because you don’t need all of them to be accessible, you make them larger. It’s more square footage, but you could add grab bars in the future if you needed them.”

“It’s impossible to design a bathroom that responds to everyone’s needs, but it might be possible to create a bathroom where it’s possible to alter it to respond to most people’s needs,” Siefering added.

In kitchens, making sure that range controls are on the front of the appliances, and placing microwaves on countertops instead of above the range, helps increase the likelihood that residents will be able to use the room. So will designing closets with two levels of rods for clothing, which will accommodate those who use wheelchairs and those who do not.

For common spaces in a new community, be sure to design the furniture layout and room sizing to allow for wheelchairs, Siefering said. And if redesigning an existing community, use furniture that can be shifted to accommodate changing resident needs, he added.

Remember, one size does not fit all.

Remember that resident wants and needs will vary, Siefering said. Not even all wheelchair users will have the same needs. Those using power chairs, for instance, may need even more room than those who use manually operated chairs, he said.

“It really is a very diverse population,” Siefering said. “You have 85-year-old women who are 4-foot-9, and you have large, overweight men who are 72 and struggling with a different set of issues. We should aspire to create designs and policies that are flexible, because it gives us a chance at making something that works for everybody.”

Don’t forget exterior spaces.

The need for ADA compliance, Berg said, “starts at the public transit drop-off if it’s near the edge of the property, the pathway all the way into the building that potentially goes through the parking lot, where ADA-relevant parking spaces are, into the building. There’s a whole exterior environment as well as the actual building environment.”

Put it in writing. And listen.

Those policies Siefering discussed? Put them in writing. For instance, who pays for resident-requested unit modifications? If it’s the resident, how much do particular modifications cost, and how soon are they made after requested?

“That approach, where you’re making adaptations to anyone and everyone’s needs that are reasonable, creates a good customer relationship and should avoid the litigation,” he said.

Just be sure to listen when residents make requests, and be sure not to contradict laws and regulations as you understand them.

Remember staff.

“A lot of thinking is around accessibility for residents, but it’s important to remember that accessibility is still required for all staff members as well,” Mohlenkamp said. “If you have a nurse who is in a wheelchair, she still needs to be able to perform her medication distribution abilities from that wheelchair.”

Employee-related considerations, Berg said, should include “their route into a building, logging in, their break area, the amenities that support them and their work habits.”

Lois A. Bowers is senior editor of McKnight’s Senior Living. Follow her on Twitter at @Lois_Bowers.