The DOs and DON'Ts of Nursing Home Marketing

The Nursing Home Podcast

Timestamps

(00:00:02) Introduction

(00:01:01) Healthcare Risk Management Experience

(00:02:18) Fair Housing Act Explanation

(00:08:15) Prohibition of Disability Discrimination

(00:15:57) Understanding Essential Requirements

(00:23:15) Rules Around Common Accommodations

(00:29:42) Risks & Fair Housing Marketing

(00:34:55) Legalities for Assisted Living Services

(00:40:17) FSA & Housing Education

(00:43:22) Rules Disregard in Senior Living

(00:47:41) Risk Tolerance Discussion

(00:49:06) Risk Management in Senior Living

So as you mentioned, I did medical malpractice defense for a number of years in New York,

and then I moved to Pennsylvania because I was getting married and my husband was from

out of state.

And when I moved, I decided to switch hats, and I decided to do healthcare risk management.

So I was tasked with starting up a risk management program for FSA.

At the time, we started with 12 organizations, nonprofit, faith-based communities, generally

in the Philadelphia area.

Since then, we've expanded quite a bit, and we now have 37 sites in six states.

And so I give guidance and consultation on risk management issues.

So today, we are going to talk about marketing risks, but I'm going to talk about it from

my perspective, you know, from a risk management perspective and a fair housing perspective.

Okay.

So thanks for that background.

So let's get right into it.

What is the worst-case scenario if someone says, you know, I'm going to market however

I want to market?

I'm going to say what I want to say, do what I want to do.

What have you seen as like a worst-case scenario of someone has done this and this horrible

outcome has happened?

Great question.

Nothing like the fear factor right from the beginning.

So what I'm going to preface that question with is an explanation of why there are risks

in this venue, in this area.

And so in 1968, Congress enacted the Fair Housing Act, which was what I like to call

the third leg of the stool for civil rights litigation, legislation rather.

And so we had the Civil Rights Act, then the Voting Rights Act.

And then in 1968, they passed the Fair Housing Act.

And that precluded discrimination in housing choices and lending based upon what we call

the protected class status.

So started out with race, religion, national origin, color, gender, which now includes

gender identity and sexual orientation, and national origin.

In 1988, Congress amended the act to include two additional protected class categories.

Familial status, meaning that you are not supposed to be able to discriminate against

families with children.

And of course, there is a carve-out for our senior living settings.

And the one for purposes of our discussion today, which will be very pivotal, is it says

handicapped, but it's what we would refer to as disability.

So you have now protections under the Fair Housing Act, and we just call it FHA for both

the Amendments Act and the original act for all those protected classes, which act

essentially as a floor, not a ceiling.

So state and local jurisdictions can also add an additional protected class categories,

like, for example, maybe marital status, saying that, you know, you can't discriminate

against somebody because they're unmarried or, you know, because they cohabitate

together, for example, or source of income is another one that's fairly common.

So I think for a lot of senior living communities, they don't necessarily recognize

that they are covered by this act as a housing provider, because I think for a lot of

communities, they say justifiably, well, we're not a housing provider because we do so

much more than that. And you do.

However, in the eyes of the government, you are a housing provider and you are subject to

the Fair Housing Act.

And so there are lots of risks that come along with that.

Now, if you choose as an organization just to decide that you're going to market any way

you want to and you're not going to pay attention to various marketing risks, including

fair housing risks, what's the worst case scenario?

The worst case scenario is that you end up being in litigation, sued by potentially a

federal government. So it's now the United States of America versus, you know, senior

living community, A.B.

State. You are in litigation with the government.

You are being sued for housing discrimination.

Almost always that ends very badly for the community.

Almost always winds up in a monetary settlement.

Many times there is also a settlement compensation fund where the community has to

advertise in multiple places for people that have been subject to what they've just been

found by the government to be illegally doing.

Let's just say discriminating against those with scooters, for example.

And so they would have to advertise for anyone that's been impacted by that to give them

money. In addition, there's almost always what we call a consent decree that comes with

that. It's sort of, if you're familiar with the world of compliance, it's similar to

a CIA or a corporate integrity agreement whereby the government puts you into this

consent decree.

And the consent decree not only sets out the exact amount of money that you're going to

have to pay and how you would advertise to those who have been subject to your

discriminatory practices to give them money.

But there's also usually quite onerous burdens that are placed on the community,

including things like they get to and the government will review your actions for a

period of time. Usually it's about five years.

And so they will oversee and have to approve the policies, put policies in place for

whatever the particular topic is, change contracts, sometimes hire a fair housing

officer to perform acts to training and education for the staff on an ongoing basis.

And again, being overseen by the government for a period of time.

In addition, I would also say that you don't want to be the poster child for that.

So again, I happen to mention scooters.

And one of the pivotal cases in the world of, you know, communities that have been sued

for improper restrictions on scooters is a community called Twining Village.

And I don't like to use them, you know, but that that case is out there and everybody

knows about it. So you don't want to end up having the reputational damage in our world

of, you know, senior living where it's like, oh, that's the Twining Village case.

And so, you know, everybody knows based on that case, you know, some of the policies

that you have to have in place and the no-nos, the things that you shouldn't be doing.

You don't want to become the poster child for that, which can very easily happen.

Well, so a couple of questions.

Thank you for that. I mean, that's quite an overview.

So it were someone to actually go ahead and let me just back up.

So you're saying that there's the fair housing law, which puts nursing homes together in

that category. So therefore, they have these discrimination laws like you've outlined.

So is this, first of all, is this specific to marketing?

Are we talking about someone denies a patient because we don't take we don't want patients

with scooters because patients with scooters are dumb or whatever.

Yeah. So I'm speaking broadly about senior living communities.

Right. So it's anywhere that a person lives.

Okay. So if you are running a short term rehab only, then potentially you are excluded from

the Fair Housing Act because that's not someone's home.

The intention is to treat them for a brief period of time with the intention to discharge

them. However, it does apply clearly.

All the case law is very clear on this.

It does apply to settings like CCRC, independent living, assisted living, personal care,

long term care. So all of those things, you know, adult foster care, it does apply to all

those settings. It is questionable whether it would apply in the context of a short term

rehab strictly.

Okay. So let's back up.

If I don't have if I have a regular store and I sell chocolate and desserts and flowers and

what else? I can discriminate all I want?

No. There are other laws.

There are other laws that prohibit you from from doing that, that we're not necessarily

speaking about today. But again, when it comes to housing, we are under the auspices of

multifamily housing specifically, which means four or more people in a unit or, you know,

four or more units, I should say, not four more people.

Then you are subject to the Fair Housing Act.

So. Okay.

So the Civil Rights Act says that you can't discriminate.

Right. Suggested.

I understand that. So my point is that you have extra laws when it comes to if you're

managing or you own a home that has multiple families, say for like you said, four units

or more. So then you have you have extra focus.

So now let's assume someone has an assisted living facility, a long term care facility,

really can be an apartment building, too.

But we're saying even senior living facilities and they're going to and then they

discriminate against someone.

So does that mean that they refuse admission to someone?

Okay. So that's a great question.

So discrimination can take multiple forms.

It can be just as you said, refusal of admission or refusal to someone, an applicant to

be denied admission.

That can be a form of discrimination.

It can also be a form of discrimination, which is very common.

Probably the most common form of discrimination is the refusal to grant what we call a

reasonable accommodation for disability.

And that's where the scooters would come in, for example.

So if I was disabled and I had a mobility impairment and I required a scooter to enable

me to get around and to meet what we call the essential requirements of tenancy.

And you, as the provider, refuse to allow me to have that scooter or, for example, that

service animal, like you have a no pet policy and I wanted to come in with a service

animal. Well, that's not a pet, that's a service animal.

That's for my disability. That's a reasonable accommodation.

So you can refuse and then you could again potentially be sued for that.

But in addition to also refusing to admit somebody, which is a form of discrimination,

there are a multitude of other forms of discrimination under the act.

And it can be I come in and I'm able bodied when I come in.

And after I'm a resident at your community for some period of time, I now become

disabled. And again, I've asked for reasonable accommodation, whatever that may be.

And you now refuse to give me that reasonable accommodation or you are discriminating

against me and saying, because let's say I had a let's say I had a fall.

I lived in independent living and I had a fall.

And you say, well, now you're not independent anymore.

And so you need to move to assisted living because you had a fall.

You can't from a legal standpoint, from a fair housing standpoint, they'd have to be way

more to it than just forcing me to move up through the continuum for something like what

I just described. And then additionally, I would also say that, you know, there are

again, just treating that it's essentially under the Fair Housing Act, we don't want to

treat anyone worse, which is the more common thing to do.

We also can't treat anyone better because of their protected class status.

So if so, again, we serve primarily faith based communities.

So if I had a community that was, for example, a Quaker community and they said, because

we are a Quaker community, we want to give preferential treatment in admission to Quakers.

You don't have to meet the same kinds of financial requirements as we require from everybody

else. You can't do that either.

Right. So, again, it's admission, but it's also discriminating against somebody once

they're there.

OK, so there's also what's the line?

And I guess this is where the gray area comes in between providing reasonable

accommodations in this type of living setting versus we have a no

scooter policy, let's say, because of a certain maybe safety concern that we have due to

our building. Or maybe we don't allow service animals, even though it's not a pet, because

we have residents with advanced dementia and they view service animals as monsters.

They're going to eat them up or any other sort of reason, assuming that it's true

or even if it's not true.

I mean, you get a good attorney to make something up, but the reasonable accommodations

versus actual practical reasons why that it's not discrimination, but there's an

actual ramification of being, you know, let's see your example.

Someone was in an independent living and suffered from a fall and now can no longer

ambulate safely in that setting.

And they want to say, OK, now you have to move on.

You know, CCRCs, you have to move on to the assisted living.

Like, I don't want to go to the assisted living.

Well, over here, you can't take a shower.

You can't, you know, prepare your food.

You physically can't do any more.

We're not discriminating because we don't like people who fall, people who are old or

people who are weak.

We're just saying that we feel that this is not appropriate.

So is that where, and obviously the other side is that, no, I'm fine.

It's just because I fell.

Don't tell me I need to move on.

Let me get some therapy.

Let me go to the doctor.

Let me let this thing heal and I want to stay where I am.

So is that where, is that why people like you have jobs?

Right.

So, yeah, perhaps that's why people like me have jobs.

But what I would say to you is, you know, there are parameters around certain things.

So let's talk a little bit about that.

So, again, when we talk about disability, we, there is a requirement under the law that

says that in order to live someplace, whether that's just in the community at large, you

know, an apartment building or in a senior living setting, the tenant or the resident

has to meet what we call the essential requirements of tenancy, no matter what.

Disability, no disability, you still have to meet the essential requirements of tenancy.

So what are those?

First and foremost is paying your rent and fees on time.

Number two is keeping your unit in a safe, clean and sanitary condition.

Now, you know, I think that reasonable people may differ as to what's safe, clean and

sanitary. Right.

Also obeying the reasonable community rules.

Okay. Unless, of course, there has to be an exception made because of the reasonable

accommodation because of somebody's disability.

But again, generally speaking, you should have a set of reasonable community rules because

people have to obey those rules.

You also cannot have excessive damage to the unit.

Okay. Normal wear and tear is okay.

If I scrape the walls because of my scooter, that's okay.

But if I decide to, you know, take a hammer and make holes in the walls, that's not normal

wear and tear. Also not unduly disturbing the peace and tranquility of others.

Okay. And the last one, which is very important, is not being a direct threat to the

health and safety of others.

Now, in my opinion, and this is not in the law, this is not in the essential requirements

of tenancy. When you are in a senior living community, I feel that it is reasonable to

say you cannot be a direct threat, a direct threat.

That's very important language.

Not speculative, a real direct threat to your own health and safety.

Okay. So, but that's not been tested in the courts yet.

That's Christina's theory.

But I think it's a good one.

And so.

Hold on, let me talk about that for a second.

If someone's, and they're a threat to themselves, and certainly if they're a threat to

themselves, even if they're not, if they're trying to physically harm themselves, they're

trying to slit their wrists, they're trying to jump out a window, they're trying to, I

don't know, whatever, anything else that's unsafe.

And the facility has done everything that they can to prevent, stop, intervene, assist.

So there's a question, there are those who say that, no, you cannot, let's say, Section

12, you cannot send them out to the hospital because that would be discrimination.

Is that even a possibility?

Well, no, under the scenario that you just described, you're not evicting them.

You're not getting them out permanently.

You're just sending them out.

So I would say, no, that's reasonable.

But there have been situations, I like the examples that you use because they are extreme

examples. And I would argue, if I was a provider, that there is no reasonable accommodation

that will diminish that threat.

But that's always going to be a question because tying in with meeting the essential

requirements of tenancy, which everyone has to do no matter what, that's where the

reasonable accommodations come in.

So if I have a disability and I ask for a reasonable accommodation or you become aware

that I need a reasonable accommodation, then it should be granted because the reasonable

accommodation is generally what's going to help me meet those essential requirements of

tenancy. Now, going back just to the example that you used.

Someone who's suicidal or homicidal, even.

The, you know, I could say I can't handle, I don't have, I'm not equipped to handle

psychiatric issues and I certainly can't, you know, protect my other residents from this

homicidal individual or I can't protect them from themselves because there's so many

ways that they could attempt suicide.

And so they are not meeting the essential requirements of tenancy because they are a

direct threat. There have been occasions and there have been some cases.

Where in circumstances like that, the courts have said, well, and it's not specific to

senior living, it's just general housing.

Well, you should try a reasonable accommodation first.

So, for example, if you send that person out, you know, to be involuntarily, you know,

incapacitated in a psych facility for a period of time.

And let's say that they have been given medication that would, you know, presumably

control their behaviors.

Then the resident or the tenant in this case would be able to say, well, my reasonable

accommodation and I should be allowed to stay because I can remain on this medication

regimen and then my behaviors are controlled.

But I know of a case from a number of years ago, multifamily housing out in Connecticut,

and an individual had psychiatric issues and actually went after the landlord with a big

butcher knife and threw him down to the ground and started to stab him.

That gentleman was arrested and then the landlord sent notice, you know, you're hereby

evicted. You know, after he got out of jail, after he spent some time in jail and came

back, he realized that he couldn't come back to the apartment because he had been

evicted and he sued and he said, you're discriminating against me.

And the court in that case actually said, well, you have to try.

Let him have his reasonable accommodation.

And, you know, but I think that's not, in my view, that wouldn't be a reasonable

accommodation. It's not reasonable to allow someone who has, you know, extreme

behaviors like that, you know, again, that's a direct threat that we can't keep other

people safe or that even that resident, we can't keep them safe.

So that's the extreme example.

But, you know, most cases are not as extreme and most cases you're going to have to try

the reasonable accommodation and sometimes multiple reasonable accommodations before

you would say you're violating the terms of the resident contract or the lease or the

agreement, whatever it is that we have.

And now you're going to have to leave or move up to a higher level of care.

You're going to have to try a few different reasonable accommodations to be safe before

you can generally do that or you'll risk potentially a fair housing claim.

Well, that's very messed up, just to realize that for everybody, because to see that

someone who physically attempted to murder their landlord was jailed for it and now

evicted, reasonable accommodation, that sounds crazy.

But I agree with you on that.

I wholeheartedly agree.

I think that's fair.

But I just felt like I, you know, I had to, you know, kind of raise that to say it's not

necessarily a slam dunk.

But generally speaking, yeah, when somebody is a direct threat and it's not speculative,

it's not fear that something might happen, it's something did happen.

Right. So I want to be clear about something.

When it comes to reasonable accommodations, as a provider, you can and should have

rules. You don't have to make it willy-nilly, but you are allowed to have reasonable rules

surrounding common accommodations, reasonable accommodations.

So, for example, let's use the scooters again.

It would be probably very high risk if you just said we don't allow scooters.

But it's OK if you said we allow scooters, but we have these rules.

A rule, I always encourage my communities to have reasonable rules.

A rule might be that you have to sit with therapy and review the rules of the community

to use a scooter first.

You know, get educated on it and then sign off that you're agreeing, you understand all

your questions have been answered and you agree to abide by the rules.

And those rules might be things like you can only drive your scooter as fast as a

non-disabled person can walk.

You don't have the right to drive your scooter around like Speed Racer.

Right. It may say you have to have a horn and lights if you're going to drive outside.

You have to obey the rules of the road on campus.

You have to have a flag.

You can't park and block fire exits.

You can't block mailboxes.

If you're going to drive into the dining room, you have to have room.

And I want to touch on something that you mentioned a few moments ago, saying my

community is older and it's not equipped for these big SUV scooters that people have

now. Under the ADA, which also sometimes can tie in with the Fair Housing Act, there

are also construction requirements.

So the ADA went into effect in March of 1991.

So did those construction requirements.

So if you have construction that occurred after March of 1991 or if your building is

older than that, but you've done any kind of a renovation on your building and the term

renovation is pretty flimsy and loose.

It could be even like redecorating can be considered a renovation.

You then have to comply with the dictates of the ADA in terms of the physical

requirements. Like so, for example, it talks about thresholds.

You can't have, you know, a big where someone can't come up on the scooter, you know,

because of the thresholds or, you know, with their walker, that's an issue.

Thresholds, grab bars, lowering cabinets in handicap accessible units.

A certain number of your units should be made handicap accessible.

That depends on how many units you have.

It's a percentage.

And simple things like aisles wide enough for people to use their scooters.

And arguably in our setting, you know, knowing that many, many people do have mobility

impairments, it's even more important, you know, to make sure that your community has

abided by the rules and the Department of Justice, you know, and lots of fair housing

groups. And HUD also has put in a tremendous amount of money to talk about people's

fair housing rights and to make sure that providers and architects and contractors are

aware of what the physical requirements are for spacing and things like that and

thresholds. And they've spent a tremendous amount of money talking about that and

making sure that people are aware.

So it becomes very challenging in these days.

Every month a case will come out at least once a month on, you know, again, the owner

of multi-family housing, the owner of senior housing, a municipality, you know, many

different types for failing to construct their buildings in accordance with the

requirements of the ADA.

So you have to be careful about that.

But there are reasonable rules.

So have them about service animals.

You know, you can have about scooters, you know, any other kinds of reasonable

accommodations. You should have, you know, rules around the private duty aides.

They're another reasonable accommodation that you should have rules about.

Got it. Sometimes we see this, the application of these rules, you know, don't seem so

reasonable. I know a particular construction project that was not required to have an

elevator, but was required to have handicapped accessible bathrooms on the second

floor. Go figure.

Right. Right.

I don't know how, you know, somebody who's disabled, you know, then they would have to

have the right amount of housing on the first floor, you know, handicapped accessible.

It wasn't a housing project per se.

But, you know, we do see things like that sometimes, but that doesn't negate the rules.

But if we can focus the conversation from a marketing standpoint.

OK.

We want to, you know, we titled this the do's and don'ts of nursing home marketing.

So I know that there are things that we cannot say.

For example, the nursing homes can't say that they're dementia units because there are

laws. This has nothing to do with Fair Housing, but this is the Department of Public

Health. They haven't clearly defined a lot of regulations for what's qualified as a

dementia unit. And there's a whole process to go through.

So you can call it memory here.

You can call it a lot of other things.

They can't call it by that name.

I've actually walked in one of the nursing homes I was managing, at least in Massachusetts.

I worked with the gentleman whose name is Dr.

Paul Rea, and he's the one who wrote the regulations for what's called a dementia unit.

And we were thinking of maybe turning one of our units, our memory, our unit though

anyway was a dementia unit, to just make it an official one.

And the cost and just the work that it would take, not just money, but also the

inconvenience and the downtime that it would take to get it in compliance just didn't

make sense. And we changed the wording in our marketing materials and we had the same

result. So instead, we just decided, you know, it was a company decision, you know,

should we do it, should we not do it, so how extensive it was didn't make sense.

So question for you is what is the absolute, give me a great example of someone that did

something horrific in their marketing or something that someone can do like really bad

in their marketing. And like, I guess I'm a worst case scenario person.

And what happened as a result or what could happen as a result?

So let me give you some examples of things that are risks in marketing when it comes to

fair housing. And I've jotted a few of these down so that, you know, I cover everything.

So the first one that I would talk about is models, models or people in your marketing

materials, photographs of individuals, right?

That can be problematic because, for example, we talked about the protected class of race,

right? So if you only have photographs, they want to see, the government wants to see

diversity. So if you have, you know, all Caucasian individuals, that could be a risk for

you because where are the people of color?

You're not allowed to discriminate based on someone's color.

What if everybody in your marketing materials is running, jogging, biking, doing yoga?

Where are all the people that are on scooters, in wheelchairs, with walkers?

So models can be potentially problematic.

Another issue would be problematic language in your materials.

Another one could be potentially, I know a lot of times marketing, especially in the CCRC

setting, will do what's called a targeting marketing campaign, right?

So they want it, they're targeting to a particular income level.

All right. And they're sending the materials out to that, to the people in a particular

geographic area that meet those income requirements.

Well, there have been cases where that's been considered to be a discriminatory practice.

Why? Because you're only sending all your marketing material specifically to potentially

just white people.

Okay. And you're excluding and you may not have any discriminatory intent with that, but

that's the way it comes out.

And in the Supreme Court has decided that in fair housing, there is something called

disparate impact.

It doesn't have to be that you purposely discriminate against somebody, but there is an

actual disparate impact.

So that's an area that you want to be careful about.

Lack of an improper, lack of the fair housing logo, it's the little house, or having the

logo, but it's minuscule.

You can't see it. If you have the logo and you should have the logo, the fair housing

logo, it's put out by the government.

If you have one for leading age and you have one for, you know, whatever local societies

you belong to and they're all of a certain font and your fair housing is teeny tiny in

the bottom, that's problematic.

There is no requirement, by the way, on font, which makes it a little bit more complicated.

But you want to make sure that it's the same size as everything else.

Exclusionary practices for admission.

Again, we don't let people in with scooters or we don't let people in with service

animals. Problematic applications, asking lots of, again, this is for independent living,

not for nursing or, you know, assisted living or personal care.

Asking medical questions, if you're not a type A community, that can be potentially

problematic. Asking intrusive questions, asking them to undergo a physical exam.

If you don't have, you know, a guarantee of moving through the continuum of care, that

can be highly problematic.

Improper. Oh, I mentioned the improper request of physical exams.

Steering, which is a term of art in the fair housing world.

Steering means that I come in and I either and government, by the way, and so do fair

housing groups, send testers in to ask these questions and try if they think there's

discrimination going on, they will send somebody in who pretends to be an applicant or

is looking for housing for their loved one and ask the questions to see what the answers

are. Steering means that I come in and I say, hey, you know, my mom is looking for

independent living.

She uses a scooter.

She needs some help with her medication management.

You know, she sometimes gets a little bit confused.

And, you know, if you were to say to me, well, you know, she might feel a lot more

comfortable if she goes over into assisted living.

That might be a better place for her.

We don't really like those kinds of people in independent living.

We don't want to look like a nursing home.

That's steering. And that is illegal under the Fair Housing Act.

Discriminatory denial of reasonable accommodations.

And again, being aware of the state and local laws that expand upon the protected classes

and making sure that you are not, again, discriminating against additional protected

classes that your local jurisdiction or state may have in place.

So those are a whole series of marketing risks that I would tell you you have to be

careful of. Got it.

So let's say I have an assisted living and I am targeting a certain group because this is

the group that actually needs the service, can afford the service, will maybe want the

service. Is there no legal way to target that group?

If I'm going to put people, let's say, let's see an example of models or even, you know,

language. If I'm going to put words on there or pictures or other things that don't

resonate with them, then they're obviously much less likely to, you know, to respond.

It doesn't mean that these are the only people that are marketing to.

I may have a separate brochure and a separate marketing plan for, you know, for a

different ethnic group or a different protected class.

But right now I want to focus on these people.

You know, an open invitation is no invitation.

Come over to my house any night you want for a barbecue.

That means you're not invited. I'm not even telling you my address.

But if I say Tuesdays at 4 p.m.

having a barbecue, you know, please bring over, bring over your family.

Here's my address. Then you're invited.

Right. So the point is, people will resonate to marketing material if they will act on it

resonates with them. So if it's, you know, if it's tailored to them, then it'll work.

Can I? Is there no legal way to do that?

There, you know, well, first of all, I want to be clear.

I'm not giving legal advice here.

I'm giving you advice from a risk management standpoint.

And so, you know, listen, everything that we do is associated with a risk benefit analysis.

Right. So I want to be clear about that.

So a community can make a determination.

What is their risk tolerance?

If they really want to market and target towards a particular, you know, group because of

their income. And it turns out that that they feel like we could be accused of

discriminatory behavior because it's going to go to, you know, all white people.

That is a question.

If you still want to market to that group, I'm not here to say you can't do it or you

shouldn't do it. I'm just saying, be aware that that's a risk.

Right. So anything that you market on could be a risk.

But if you think that the benefit of targeting a particular group of people is going to,

you know, bring in the people that you want or that you think would benefit from your

services, then that would be your assessment of and that would be a risk tolerance to

your community. Right.

Got it. Who are the discrimination police that are going to bring this case in front of,

you know, they're going to get, you know, secret people coming in undercover and asking

for service.

So the DOJ has testers that work for them in the Civil Rights Division.

Now, who brings it to their attention so that someone would want to come down?

Yeah. So I'm going to tell you, there are a lot of fair housing advocacy groups out

there. There are a lot of law school clinics that also have fair housing, you know,

clinic that are staffed by law students.

The government gives money.

They're like quasi-public, private, public government entities.

They get money from the government in recognition of their work and they get money from

the government to do that.

So they are there to enforce fair housing rights.

Usually the way it would work is if I am an individual, many times this is how it

happens. I'm an individual.

I go, I apply for residency at a particular community.

I feel that I've been discriminated against for whatever reason that, you know, my

disability, my religion, the color of my skin, whatever it is.

I go to a fair housing group and I make a complaint.

If they, they will then investigate my complaint.

If they feel that there is some validity to that, they will do their own research.

They will start their own investigation.

They will have testers.

They will go out. They then turn it over usually to HUD.

With their findings, if they feel that there is what we call a pattern or a practice of

discrimination, they will send it to HUD.

If HUD, the Housing and Urban Development Office of the government, feels that it rises

to a certain level and they think that there is a discriminatory pattern and practice going

on, then that gets referred over to the Department of Justice.

So the lawsuit can either be me, Wildrick versus ABC Senior Living.

If I feel that I've been discriminated against individually, I can sue you in

state court or federal court.

If it's a fair housing group, then a lot of times, you know, that fair housing group

will bring it on my behalf.

So it would be Wildrick and the Fair Housing Alliance versus if it goes to HUD, it

would be, you know, HUD, Housing and Urban Development v.

the housing community.

And again, in the worst case scenario, it rises up to the level of the DOJ, the

Department of Justice, and they will bring the claim and it will then be the United

States of America. It will be in federal court and it will be brought against you.

So there are they are essentially what you're referring to as the police.

They are the enforcers.

They are bringing them. But private claims can be brought by individuals or by private

housing groups. And there are loads of them out there or the government can do it.

Well, so now on a professional standpoint, where do you come in the business that

you're involved in? Which piece of this?

Are you the police? Are you the defendants?

Are you just educating people to stay away from the cops?

Right. So my job as the risk manager for FSA, for the communities that we work with, we

bring we do lots of education.

We do lots of fair housing education, both for marketing and admission staff, as well as

staff within the community that is responsible to move people through that continuum of

care. So we do loads of education for them.

We also come in many times and we do education for the residents themselves.

We have meetings with residents.

Sometimes residents, for example, may say, you know, things that we feel are

inappropriate, like why is so and so in the dining room?

She's in a wheelchair and and she's totally out of it.

And I don't want to look at that when I'm eating and, you know, or asking questions.

Why is this person living in independent living?

This person doesn't belong here.

She's not like the rest of us.

She should go into assisted living.

You know, we have a problem with it.

We're here to educate the residents on their rights as residents, as well as, you know,

what the Fair Housing Act says and why we're not going to share any details and

information with them about other residents and what we're doing with them and for

them as far as reasonable accommodations or any any other way that we're working with

them. So we like to educate the residents.

We also work specifically with marketing teams.

We help them with, again, do's and don'ts in their marketing materials, language that

they should have on all of their websites, on their brochures, on anything that they're

doing. We help them with information on, you know, things to share and not share during

tours. So, you know, we're here and we develop all kinds of templates for policies

and procedures and things of that nature.

We also work with the risk management committees to review all of the marketing

materials and the website before they actually go live and before anything's printed to

make sure that everything is, you know, on the up and up, both from a fair housing

standpoint and a general risk management standpoint.

We don't want people over promising that, you know, it's all about for us setting

realistic expectations.

So we're here at FSA to help our communities understand what it is, understand the

risks, and also develop policies, procedures, rules, guidance.

So we talk about rules and we have templates for rules for service animals, rules for

scooters, rules for private duty aid, hold homeless agreements, indemnification

agreements when somebody does want to hire a private aide to make sure that they

understand that we're not responsible for, you know, what they do or what they do

incorrectly or what they fail to do.

So those are all things that we do at FSA in our risk management program to assist the

organizations that we work with.

Fascinating.

We've gone a little bit later because you're sharing, you're dropping all the jewels

there. But the question for, is there anything, it may not be necessarily fair housing

related, but if there are residents in a senior living setting that completely

disregards all discriminatory laws and regulations, to have some people that just

don't care anymore and they'll say things to the staff about their religion, about

the color of their skin, about the country that they come from, about their accent, and

they'll, they have nothing to lose.

Is there any recourse, and you can educate them, but they don't care.

Is there any recourse that providers can do to help really prevent their staff, not

protect their staff, or the residents from each other, when you have residents that

completely ignore all the rules that we're discussing?

Well, that would be a topic for an entire other podcast.

But what I will say is what you're describing for your employees is a hostile work

environment. And even if you cannot stop the resident from saying, you know, the

bigoted, you know, racist kinds of things that you're describing, you cannot, as a

provider, throw your hands up and say, oops, sorry.

You know, in one particular case that was, it's a fairly recent case that was brought

for a hostile work environment.

The CNA was being, you know, spoken to in that manner that you just said, and also

sexually harassed, groped, touched, you know.

And the administrator in that case, the language that she used was, put your big girl

panties on and deal with it.

OK. And they got hit with a massive verdict.

So you don't want to do that.

But so, again, there are things that you should and can do to mitigate the harm that

comes to employees. So, you know, for example, you might want to switch staffing

patterns around. You might, if it's somebody that is, you know, touching inappropriately,

then you might want to use, you know, a male caregiver or you might send that person in

with a second caregiver at all times.

Or you might, again, like in the case of the CNA that I was just talking about, she has

to be moved to a different wing away from that resident.

And that's when the administrator said that to her.

So, again, you want to look, there's all different things that you can do.

But what you shouldn't do is to basically throw your hands up and say, there's nothing

that I can do about that.

No, of course not. No, the question is not about the staff, but the question is, is there

anything that can be done to, I guess, to encourage or force the people who live in

that setting not to engage in those practices?

Well, other than what you just described, you know, like the education, and obviously

it's going to depend on the, you know, on the competency of that individual.

If that individual has intellectual disabilities and or dementia, right, right.

But if they don't have those things, then, you know, and they're not abiding by the

rules, then there may have to be, you know, after you've spoken to them, and

documentation is key, you have to be documenting everything you're doing, every

effort you're making, every conversation that you've had.

And if that resident is refusing, then there may have to be a discharge in that case

because you're not able to care for them anymore.

Got it. Got it.

Fascinating.

If people want to learn more about the topics that we're discussing or learn more

about you and your company, where's a good resource, where's a good place to send them

to?

Our website, FSAinfo.org, is a good place, and it has, you know, a number of the

resources that we have on there.

We, you know, we provide a lot of different services in addition to risk management.

Awesome.

Okay.

FSA, what is it, FSAinfo?

Yeah, FSAinfo.org.

Okay.

We'll include that in the show notes.

I'm going to take a little peek.

All right.

Any final thoughts before we let you go for today?

Again, I think it's really important that you recognize and discuss, you know, what

your risk tolerance is because the message that I want you to take is, yeah, there are

a lot of fair housing rules and the advocacy groups really, you know, they take a very

strong position pro-tenant, pro-resident.

You know, myself, you know, representing providers and on the, you know, trying to

keep providers out of trouble, I might take a more restrictive view of it, but it's

really be aware of what the risks are and then make informed decisions about your risk

benefit analysis and what your risk tolerance is.

Sometimes it might be better to decline admission to somebody, you know, and risk a

fair housing claim than to take somebody in that, you know, is not appropriate and

it's going to struggle in a particular level of care, you know, and it's going to, you

know, be really a massive burden to you.

You might choose to take the risk of potentially a discrimination fair housing claim

than to take somebody in that, you know, is going to be incredibly problematic and

potentially present you with a negligence action.

Got it.

Got it.

Okay.

I'm just going to, wait, you just want to unmute.

I know you didn't, I'm sorry.

I'm looking at the wrong place here.

That's my bad.

But there's just one comment here from Hannah.

It says, thank you, Christina, for sharing your expertise as a marketing professional.

Christina living in organizations is very interested in to think through the risks,

which is definitely true.

And there's something that you brought to us.

Thank you very much, Christina, for joining us today and for sharing everything that you

shared over here on the show.

It definitely has been very informative just about, like you said, knowing the risks, when

to take them, when not to take them.

Right.

Okay.

You're welcome.

Thank you for having me.