http://paloaltoonline.com/print/story/print/2007/01/12/eviction-for-disability-alleged-in-channing-house-lawsuit


Palo Alto Weekly

News - January 12, 2007

'Eviction for disability' alleged in Channing House lawsuit

Longtime Palo Altan fights to stay in her independent-living apartment despite need daily care assistance

by Sue Dremann

A potentially landmark housing-discrimination case challenging whether elderly people can be evicted from their apartments if they become disabled or require daily-living assistance is being tested in a Palo Alto case.

The case, filed in federal court on behalf of an 88-year-old Channing House resident, Sally Herriot, has captured the support of American Association of Retired Persons (AARP) and the Fair Housing Law Project, which are making it a test case.

At issue is the ability of elderly persons to remain in their apartments in senior housing projects even if they need personal assistance in daily living or become mobility impaired, and whether they can make their own decisions regarding that care even if they pay for assistance themselves.

As it stands, many senior living centers make decisions unilaterally about when someone needs to move from their independent quarters to an "assisted living" setup, according to Herriot's son, Robert Herriot, a software programmer and, like his mother, a longtime Palo Alto resident and retired schoolteacher. He said his parents moved to Palo Alto in 1942 -- when his late father became a professor at Stanford.

"Most people are astounded" when they learn of the contractual power of senior living centers, such as Channing House and others across the nation, he said.

Herriot was told last spring of Channing House's intention to move her from her cozy private apartment to a sterile assisted-living unit that she would share with another resident.

The transfer was to take place on Aug. 7, according to her son.

Channing House officials said the move is necessary because her flagging health requires more care than they are able to provide in an independent unit.

But Herriot already receives 24-hour care she pays for herself.

Caregivers come to her apartment to help dress and bathe her, and attend to her other needs. Herriot doesn't want to move from her cozy apartment with its pillowed bed, rugs and shelves of books to a unit with a hospital-like bed, linoleum floors and only a curtain separating her from another patient in the room. There were also restrictions: She would have to be in bed by 8:30 p.m. and visitors would be severely restricted in how long they could stay. The doors to the room would have to remain open at all times.

And there would be no place for her books and the personal things that have populated her life.

Herriot balked.

Alex Graft, attorney for Channing House, said Herriot signed a contract giving the facility the right to make decisions regarding what care she will receive and where the care will be administered, and that Channing House is following state law.

But Robert Herriot said Channing House violated state law when they failed to grant his mother a hearing, and the criteria for moving her has changed several times.

A letter in April said his mother would be moving to a double room, but that the other bed would be kept vacant until someone needed it. Later, he said, they "briefly" offered her a studio apartment.

He said when it became clear that it was legal for her to have assistance in her own apartment, Channing House officials gave a second reason for the eviction: that she was "non-ambulatory" because she needed a walker or a wheelchair to get around -- even though state fire officials have loosened their definition of ambulatory to include those means.

The state law also changed Jan. 1 to state that a person "may" not "shall" be moved to an assisted living situation when the person becomes non-ambulatory and "depends on" a walker or wheelchair -- the "shall" had been lobbied for by the nursing industry, Herriot said.

Channing House Executive Director Carl Braginsky said the organization has followed state law regarding care conferences and residence assessment.

He said allegations that Channing House was moving Herriot solely for monetary reasons are "silly and almost libelous." The AARP Bulletin article is "one-sided and full of a lot of false allegations. If we were to operate in the way they indicate, we wouldn't be in business," Braginklsy said.

Many residents have become upset over the allegations, he added.

Herriot purchased her apartment for $180,000 in the early 1990s. If sold today, the apartment would go for $450,000 -- all of which would go to Channing House, Herriot said.

Attorneys representing his mother said if Channing House moves her against her wishes, that's eviction; which violates federal fair-housing laws against the disabled.

A 1988 Federal Housing Act law bars discrimination "in any place an individual will live on the basis of handicap ... and reasonable accommodation as a general rule still has to be provided," AARP attorney Susan Silverstein, a co-attorney in the case, said.

"If you are living in an ordinary apartment building, the landlord cannot force you to relocate if you become disabled," Robert Herriot added.

"I believe the next big civil rights issue in America is elder rights. Not only is it important; it is also universal. It will affect each and every one of us some day.

"The essence of this issue is, 'Who has the right to choose where you live as you age?' Do you and your family have this right, or does that right reside solely with your retirement community administration -- an entity that doesn't experience your loss of privacy and dignity, and whose budget may benefit from reselling your vacated apartment?" he asked.

The issue goes far beyond Channing House.

"It is pervasive in the (senior-care housing) industry," Herriot said.

Policies allowing facilities to decide unilaterally the placement of residents are not consistent with the vision of aging in today's world, Silverstein said. Having a disability doesn't preclude someone from being an active member of society, she added.

"I have friends who practice law and need to have caregivers to dress and bathe them, but every day they get up and go to work and practice law," she said.

The case highlights the changing face of assisted-care for the elderly, attorneys for both sides said.

Continuing-care facilities see the case as a challenge to their traditional methodology for providing patient care regulated by state law. Proponents of the emerging-care model of "aging in place" say care should be given within apartments as per the resident's wishes. Elderly and disabled residents should not be forced from their independent-living homes because of their disability.

Silverstein said the case will set a precedent regarding who gets to decide on assisted-living care.

Channing House attorney Graft said the outcome of the case could have far-reaching implications for the continuing-care-community industry. The case is groundbreaking because it represents undue expansion of the anti-discrimination laws, he said.

"The ability to make health-care decisions and determine the location of where the care will be delivered has been a fundamental characteristic of the continuing-care-retirement-community business. ... If seen to change the way continuing-care-communities can provide care, it can affect a large group of these businesses," he said.

Herriot taught math at Stanford and in every high school in Palo Alto: Cubberley, Gunn and Palo Alto.

The Channing case is not her first brush battle with authorities, Robert Herriot said. In 1955, she was told that she would not be hired at Palo Alto High School because the math department did not hire women.

But she refused to be denied; and after a short stint as a middle-school teacher and her continuing objections to the Paly policy she finally was hired and taught there for many years.

Staff Writer Sue Dremann can be e-mailed at sdremann@paweekly.com.

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