Sunday, January 13, 2019

Whitinsville man files $1M suit against retirement home - The Patriot Ledger

NORTHBRIDGE - A 73-year-old Whitinsville man has sued the owners of Whitinsville Retirement Home for $1 million in U.S. District Court in Worcester, claiming they violated his civil rights by illegally pressuring him to leave the home on the basis of disability and religion, among other actions.

The case, brought under the federal Fair Housing Act, state anti-discrimination laws and other laws, raises broader issues of what protections seniors have in private group housing that isn't regulated by health care or elder affairs agencies.

Community Legal Aid lawyer Maureen St. Cyr and Ray Mestre from Legal Assistance Corporation of Central Massachusetts filed the lawsuit Dec. 4 on behalf of Joseph Crowley, against Whitinsville Retirement Society Inc., a nonprofit that owns and operates Whitinsville Retirement Home, 10 Chestnut St.

St. Cyr said Crowley’s goal was to bring the home into compliance with the law, not to litigate. But negotiations over the past year have failed.

“I think the ability to age in place, I think that’s an important thing to have. This really is a landlord-tenant relationship,” St. Cyr said.

“We aren’t throwing up roadblocks to full integration in the community. That’s why it (the Fair Housing Act) is a powerful civil rights law. That’s why we think it’s so brave of Mr. Crowley to stand up for those rights.”

A key matter underpinning the lawsuit is what kind of a residence, legally, the retirement home is.

Crowley's complaint contends the retirement home “is simply private rental housing that is subject to state and federal laws that prohibit discrimination in housing based on… disability and religion.”

Shayne Picard, lawyer for the Whitinsville Retirement Society, denied the allegations made in Crowley’s complaint, including the claim that the home is private rental housing.

While he acknowledged that the retirement home isn’t a licensed skilled nursing or rehabilitation facility, or state-certified assisted living residence, “It’s definitely not your standard apartment,” he said in an interview.

Whitinsville Retirement Home, in the circa-1840 John C. Whitin mansion, contains 17 rooms for rent with private bathrooms and common spaces. Residents receive meals together in the dining room, as well as laundry and housekeeping services. An on-site director lives in the mansion.

The Whitinsville Retirement Society also owns and operates 24 units of independent-living apartments for the elderly, at 2 Chestnut St., which were built on the shared nine-acre grounds in 1979. The independent apartments are not part of the lawsuit.

According to the mission posted on its website, “The Whitinsville Retirement Home is a Christian residential home for the elderly. Our goal is to create a loving atmosphere in a comfortable, home-like setting and to provide carefree living and companionship in a healthy environment.”

The Whitinsville Retirement Society, which owns and operates the home, was incorporated as a nonprofit organization in 1975, led by members of Fairlawn Christian Reformed Church.

Although it is not formally linked to or designated as a religious organization, the purpose spelled out in the 1975 articles of organization shows a close tie: “To establish, maintain, and operate nonprofit facilities for the housing, sheltering, and care of persons in their retirement years and to give aid, comfort, encouragement and direction to such persons of retirement age at or below cost all in conformity with the doctrines and principles of the Reformed Churches.”

The organization’s purpose was amended in April 1979, largely to allow the society to build and operate the separate independent living apartments and to make improvements on the property.

Reference to the doctrines and principles of the Reformed Churches was removed.

The society’s mission is summarized on its IRS Form 990 for the year ending Jan. 31, 2016, the most recent publicly available, as, “Residence for the elderly.”

According to the complaint, Crowley moved into Whitinsville Retirement Home eight years ago, after suffering a stroke. His partner at that time helped him choose the home because of the assistance offered there.

He signed an admission agreement, which included policies such as: “Applicants must be able to walk unassisted with a cane or walker, dine without assistance, take own medications, practice good personal hygiene including bathing, and contribute positively to the atmosphere of the Home. Applicants must also be able to pay the fee as outlined by the Board of Directors.”

Also in the policies is the statement, regarding mealtimes: “All residents are expected to be at the table for devotions.”

Admissions involved submitting a medical history completed by a physician, agreeing to submit to periodic medical exams and authorizing medical information and advance planning documents to be released to the home.

The home doesn’t provide any medical or personal care services, but, according to its website, residents may be “allowed” to have outside assistance on a regular, private-pay basis.

Other terms of the contract, which Crowley’s lawyers claim are illegal, include mandates that residents appoint an outside sponsor to act as their representative in all dealings with the society; keep their unit door unlocked; waive all claims against the society; and participate in religious (Christian) devotions at mealtime.

The lawsuit claims, too, that the society operates a listening system located in tenants’ rooms or in hallways just outside their doors, which is not disclosed to tenants.

In December 2016, approximately six years after moving into a second-floor room at the retirement home, Crowley was hospitalized after suffering a fall.

The retirement home representatives initially refused to permit him to return home unless he signed an agreement waiving all personal injury claims against the society; promising to comply with future third-party medical advice; and granting the society the right to determine if or when it becomes in Crowley’s best interest to stop residing at the home, the complaint continues.

Crowley refused to sign, and was only permitted to return home after “an upsetting dispute.”

The next month, the society decided that Crowley’s mobility had become too limited to remain in his second-floor unit because he could not get downstairs on time for meals. As a condition of continued tenancy, he was forced to move to a smaller unit on the first floor.

In October 2017, the society began pressuring Crowley by emails, letters and personal statements to move out of Whitinsville Retirement Home because the society believed he was no longer sufficiently independent.

He refused to move out and asked the society to permit him to stay if he hired, at his own expense, private in-home care.

The complaint contends that the society “denied Mr. Crowley’s requests for reasonable accommodations.”

The society served Crowley with an eviction notice in December 2017. He retained legal counsel and the action was dismissed last February.

Through his lawyers, Crowley made written requests that the society change its illegal discriminatory policies and practices. But instead of doing so, according to the complaint, Crowley was harassed and intimidated by representatives of the society in an effort to force him from his home.

On Oct. 25, Crowley’s lawyer emailed a letter to the society’s lawyer, demanding that the harassment stop immediately.

The next day, Oct. 26, the society served Crowley with a no-cause eviction notice.

Crowley still lives at the retirement home, with private home health aide service, as the lawsuit is pending.

“What happened here was very paternalistic,” said Leigh Woodruff, litigation director for Community Legal Aid in Worcester. “That doesn’t exempt them from the civil rights laws.”

The complaint argues that Whitinsville Retirement Society violated the Fair Housing Act by discriminating against Crowley in rental housing by forcing him to move to a different unit; attempting to evict him because of his disabilities; and creating a hostile housing environment. It claims the terms and conditions of tenancy and denial of Crowley's request for a reasonable accommodation, to hire a home health aide, also violated the law.

It cites other causes of action, including violations of the state anti-discrimination law; interfering with Crowley’s right to quiet enjoyment of his home; interfering with his right of privacy; and negligent supervision of staff or agents.

Crowley requested a jury trial, in addition to bringing the site into compliance and assessing monetary damages.

The Whitinsville Retirement Society, in its answer to the complaint, also requested a jury trial.

Besides denying Crowley’s allegations, the defense claims that the society acted in good faith and had reasonable grounds for believing its actions complied with the law.

It states that all actions taken by the defendants with respect to Crowley were for legitimate charitable or business reasons.

Further, it highlights legal limitations that would bar the claims or limit damages.

St. Cyr said that the Fair Housing Act was amended in 1988 because of concerns that people with disabilities were losing their homes.

Lawsuits have been filed nationwide alleging that senior housing providers are illegally forcing residents with disabilities out, a growing concern for an aging population, she said.

Locally, senior care professionals voiced concern about private communal residences that fall outside the regulatory purview that assisted living, nursing homes and adult foster care have.

“I think there’s a problem with it because there is no oversight,” said Robert Dwyer, executive director of Central Massachusetts Agency on Aging.

Northbridge Council on Aging Director Kelly Bols said she hasn’t seen much demand for that type of congregate housing. “It’s limited in what it can offer. There is some supervision, but not a heck of a lot.”

Michelle Edelstein, Sutton Council on Aging director, questioned the level of training for staff in such senior residences and whether tenants’ rights were clearly displayed.

She said these issues need to be worked out soon as baby boomers are now reaching their 70s and older people want to remain in the community.

“When you think of all the older folks starting up now in age - housing is big,” she said.



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