The Americans with Disabilities Act applies to Brookdale Senior Living’s assisted living communities in California, a federal judge ruled Friday in allowing a discrimination case against the country’s largest senior living operator to continue.

A Brookdale spokeswoman said the company would not comment on ongoing litigation.

Attorneys originally filed the lawsuit against Brookdale in July 2017 and said at the time that it could be the first class-action lawsuit against an assisted living operator to be brought under the ADA. Potential damages could exceed $45 million because the lawsuit is seeking a minimum of $9,000 for each affected resident, and more than 5,000 residents of Brookdale communities in California could become part of the class, one of the plaintiffs’ attorneys said at the time.

The lawsuit, since amended, now involves seven plaintiffs — current or former assisted living or memory care residents of five Brookdale communities in California, or their representatives. The complaint alleges in part that understaffing means that disabled residents’ activities of daily living needs are not being met, and U.S. District Judge Haywood S. Gilliam Jr. said Friday that the claim was “sufficiently alleged.”

“Plaintiffs allege that those residents who are disabled are unable to receive the benefits of their residence — e.g., ‘assistance with bathing, dressing, brushing their teeth, toileting, incontinence care, and other hygiene assistance’ — without sufficient staffing,” he wrote, adding, “Non-disabled residents do not require staffing to receive these benefits.”

Brookdale had argued that its assisted living communities are similar to private apartment complexes that would not fall under the governance of the ADA, but “the court found that the Brookdale long-term care facilities are public accommodations,” Gay Crosthwait Grunfeld of the San Francisco law firm Rosen Bien Galvan & Grunfeld LLP, one of three law firms representing the plaintiffs, told McKnight’s Senior Living. “That’s consistent with the language of the statute, the regulations and governing Supreme Court authority that has stated that public accommodations should be broadly defined to ensure that people with disabilities get equal access to all kinds of programs and services.”

Brookdale’s own filings with the Securities and Exchange Commission indicate that “[a]ll of our communities are required to comply with the Americans with Disabilities Act, or ADA,” Gilliam’s order noted.

Arbitration order

Brookdale also sought to compel arbitration for two plaintiffs, but the judge denied those motions.

In one case, he wrote, a resident’s daughter signed a new residency agreement and opted out of the arbitration provision when the resident moved from one part of the continuing care retirement community to the memory care section. “That 2017 agreement also included a provision stating that ‘[t]his agreement and any written amendments constitute the entire agreement between the parties and supersede all prior and contemporaneous discussions, representations, correspondence, and agreements whether oral or written,’ ” the judge noted.

In the other case, a resident’s son signed a residency agreement and did not opt out of the arbitration provision, but “the person who signed the arbitration agreement did not have power of attorney to do so, so under California law, you can’t bind a family member without a power of attorney,” Grunfeld said.

The court also denied Brookdale’s motions to dismiss and to strike class allegations.

Next steps

The judge scheduled a case management conference for Feb. 12.

“At that conference, we look forward to setting deadlines in the case so that we can move forward and ask the court to certify a class and a subclass, as we’ve asked in our complaint, and ultimately set a trial date so that we can try our claims for disability discrimination, failure to provide access and false and misleading statements in violation of California consumer law protection,” Grunfeld said.

“We are pleased that the second amended complaint stands and we will now be turning to a motion for class certification and discovery of the underlying facts, documents and witnesses. I look forward to getting into the merits now that this decision has been rendered by the court,” she added.

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