ARTICLES
THE ADA-A LITTLE USED TOOL TO REMEDY
NURSING HOME DISCRIMINATION
Elizabeth K. Schneider"
INTRODUCTION
T
HE Americans with Disabilities Act of 1990 (ADA)I provides broad-based
antidiscrimination protection for people with physical or mental impairments that substantially limit one or more life activities. Although most of the
publicity surrounding the Act has focused on Title I, which prohibits employment
discrimination against the disabled,2 the Act's coverage is much broader. Titles IP
and III 4 prohibit public entities and public accommodations, respectively, from
discriminating on the basis of disability, while Title IV5 addresses telecommunications. The provisions of Titles II and III are particularly relevant to the nursing
home setting.
There are numerous instances where the Americans with Disabilities Act may be
applicable in the nursing home setting. Examples include a facility's refusal to
admit an applicant with dementia because that person may be considered difficult
to manage, or a facility's attempt to segregate, transfer, or discharge a resident
diagnosed with a communicable disease or mental illness. The ADA may also be
applicable when a resident who requires assistance with eating wishes to dine in the
main dining room rather than in a separate room, or when a resident suffering from
Alzheimer's disease does not want to live in the special care unit that segregates
residents in the facility afflicted with Alzheimer's disease from those not impaired
by dementia.
• Associate Director of the Law Library & Assistant Professor, Texas Tech University School
of Law. B.A., Illinois Wesleyan University (1968); M.A., University of Minnesota (1969); J.D.,
William Mitchell College of Law (1973); presently completing a Health Law LL.M., St. Louis
University.
I would like to thank Professor Sandra Johnson at St. Louis University for her guidance in
researching and preparing this article and the law library staffs at St. Louis University and Texas Tech
for their research assistance.
l. The Americans with Disabilities Act of 1990, 42 U.S.c. §§ 12101-12213 (1994); 47 U.S.c.
§§ 225, 611 (1994).
2. 42 U.S.c. §§ 12111-12117 (1994).
3. 42 U.S.C. §§ 12131-12165 (1994).
4. 42 U.S.c. §§ 12181-12189 (1994).
5. 42 U.S.C. §§ 12201-12213 (1994).
489
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Although Titles II and III have been in effect for four years, based on the limited
number of reported cases relying on the ADA and the relatively few discussions in
legal journals, the ADA appears to be an underutilized resource for ensuring that
nursing home residents with disabilities are treated in a nondiscriminatory manner.
A survey of professional publications of the long-term care industry also seems to
indicate that the nursing home industry, while concerned with ADA issues arising
in the employment setting or with the removal of structural barriers, has not
considered the Act as it applies to nursing home residents. 6
This article demonstrates not only that the ADA covers nursing homes, but also
that its potential for combating discrimination based on disability needs to be
explored more fully. Beginning with a discussion of the ADA provisions applicable
to nursing homes and individuals covered by the Act, this article then reviews the
relationship between the ADA and section 794 of the Rehabilitation Act of 1973. 7
Because nursing homes must also comply with the federal Nursing Home Reform
Act that was passed as part of OBRA-87 8 and state licensure requirements, 9this
article also includes a review of the relevant sections of that legislation. Finally,
this article provides specific examples in which the ADA can be used to prevent
discrimination in nursing homes, particularly discrimination against residents with
infectious diseases or suffering from dementia.
.
The ADA, the most comprehensive existing federal legislation protecting the
civil rights of disabled citizens, provides a national mandate for eliminating
discrimination against individuals with disabilities. 10 Previous legislative efforts,
such as the Rehabilitation Act of 1973 11 and the Fair Housing Amendments of
1988,12 prohibited discrimination on the basis of disability in limited settingsY
Before passage of the ADA, the disabled, unlike those discriminated against on the
basis of race, color, sex, national origin, religion, or age who were protected by the
6. For example, the two publications dealing with the ADA listed in the American Health Care
Association's 1996 Professional Development Catalog, the ADA COMPLIANCE MANUAL and the ADA
COMPLIANCE CHECKLIST, only pertain to ADA issues relating to employment and the removal of
structural barriers.
7. The Rehabilitation Act of 1973,29 U.S.C. § 794 (1994).
8. Omnibus Budget Reconciliation Act of 1987,42 U.S.C. §§ 1395i·3, 1396r (1994).
9. E.g., CAL. HEALrn& SAFETY CODE § 2 (West 1990); FLA. STAT. ANN. § 400 (West 1993);
210 ILL. COMPo STAT. ANN. 45 (West 1993); Mo. ANN. STAT. § 198 (West 1951); N.Y. PUB. HEALTH
LAW § 28-D (McKinney 1993); OHIO REv. CODE ANN. § 3721 (Banks-Baldwin 1994); TEX. HEALTH
& SAFETY CODE ANN. § 242 (West 1992).
10. ABA COMM'N ON MENTAL AND DISABILITY LAW, THE AMERICANS WIrn DISABILITIES ACT
MANUAL: STATE AND GOVERNMENT SERVICES: EMPLOYMENTAND PUBLIC ACCOMMODAnONS 4 (John
Parry ed., 1992) [hereinafter ABA COMM'N).
II. 29 U.S.c. § 794 (1994).
12. Pub. L. No. 100-430, 102 Stat. 1619 (1~88) (codified as amended at 42 U.S.C. § 3601
(1994».
13. Section 794 of the Rehabilitation Act of 1973 only applies to the recipients of federal
financial assistance and only protects qualified individuals with disabilities. 29 U.S.c. § 794(a)
(1994). Entities receiving federal financial assistance are prohibited from discriminating on the basis
of disability in the provision of benefits or services. Id. The Fair Housing Amendments of 1988 only
make it unlawful to discriminate on the basis of disability in the termS or conditions of a sale or rental
of a dwelling, or in the provision of services or facilities in connection with such a dwelling. 42
U.S.c. § 3602 (1994).
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Civil Rights Act of 1964 14 and Age Discrimination in Employment Act,I' had no
comprehensive legal recourse against discrimination based on disability. Congress
found that "historically society has tended to isolate and segregate individuals with
disabilities, and, despite some improvements, such forms of discrimination against
individuals with disabilities continue to be a serious and pervasive social
problem."16
I. THE APPLICABILITY OF THE ADA TO NURSING HOMES
Depending on the nature of the facility, either Title II or Title III of the ADA may
provide protection for nursing home residents. The generic term "nursing home"
is often applied to a variety of entities, including skilled nursing facilities,
intermediate care facilities, residential care facilities, and assisted living and
congregate housing. For the purpose ofthis article, "nursing home" refers to skilled
nursing or intermediate care facilities. This level of care provides housing, social
services, nursing, medical, and rehabilitative care for residents who need
institutional care but do not require the level of care provided in a hospital.
Medicare refers to facilities providing this level of care as "skilled nursing
facilities,"17 while Medicaid designates them as "nursing facilities."18 In this
discussion on the applicability of the ADA, residential care, assisted living, and
facilities primarily for the treatment of mental disorders are specifically excluded
because the different services offered and level of care provided may require a
different analysis of ADA applicability.
Title II protects qualified individuals with disabilities from discrimination on the
basis of their disabilities in the provision of services, programs, and activities by all
state and local governments. 19 Therefore, if the facility is operated by a state,
county, or municipality, it is subject to Title II. Because Medicaid is a program
operated by the state, facilities which accept Medicaid payments are subject to the
provisions of Title II.
Title III is applicable to public accommodations. 20 The ADA makes a distinction
between "public accommodations" and "places of public accommodation." The
term ''place of public accommodation" is an adaptation of the statutory definition
of public accommodation found in the ADA,21 Regulations issued by the
Department of Justice define a "place of public accommodation" as "a facility,
operated by a private entity, whose operations affect commerce and fall within at
least one of the twelve categories specified in" the Act. 22 The term "public
accommodation" is reserved in the regulations for the private entity that owns,
14. Civil Rights of 1964, Pub. L. No. 88-352,78 Stat. 241 (1964).
15. Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 81 Stat. 602 (1967)
(codified as amended at 29 U.S.c. §§ 621-634 (1994».
16. 42 U.S.C. § 12101(a)(2) (1994).
17. 42 U.S.C. § I395i-3(a) (1994).
18. 42 U.S.C. § I396r(a) (1994).
19. 42 U.S.C. §§ 12131, 12132 (1994).
20. 42 U.S.c. § 12181(7) (1994).
21. 42 U.S.C. § 12181(7) (1994).
22. 28 C.F.R. § 36.104 (1996).
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leases, or operates a place of public accommodation. 23 It is the public accommodation, and not the place of public accommodation, that is subject to the regulation's
nondiscrimination requirements. 24
To be classified as a place of public accommodation under the ADA, a facility
must "affect commerce.,,2S "Commerce" was originally defined as "travel, trade,
traffic, commerce, transportation, or communication among the several states;
between any foreign country, territory or possession and any state; or between
points in the same state but through another state or foreign country.,,26 This
definition is the same one used in Title II of the Civil Rights Act of 1964, which
prohibits racial discrimination in public accommodations. 27 The use of the phrase
"operations affecting commerce" applied the full scope of coverage under the
Commerce Clause of the Constitution in enforcing the ADA.
Recently, however, the Supreme Court reviewed decisions interpreting the
Constitution as giving Congress broad authority to regulate interstate commerce,
including the activities oflocal business enterprises that affect interstate commerce
through the purchase or sale of products manufactured in other states, or by
providing services from other states. 28 In United States v. Lopez,29 the u.S.
Supreme Court, after tracing the development of Congress' power to regulate
commerce, concluded that Congress may only regulate the use of channels of
interstate commerce, regulate and protect the instrumentalities of interstate
commerce, and regulate those activities having a substantial relation to interstate
commerce.30 The Court offered restaurants utilizing substantial interstate supplies
as one example of an activity substantially affecting interstate commerce. 3 )
Although Lopez imposes a more restrictive interpretation on Congress' power to
regulate commerce, nursing homes, like restaurants, use substantial interstate
supplies. Thus, nursing homes should rightfully be considered facilities that "affect
commerce" and, therefore, qualify as public accommodations under Title III.
In addition, for a facility to be a public accommodation under the ADA, it must
fall within one of the twelve categories set out in the Ace 2 While the facility must
23. U.S. DEP'T OF JUSTICE, EQUAL EMPLOYMENT OPPORTUNITY CoMM'N, AMERICANS WITH
DISABILITIES ACT HANDBOOK III-26 (1992) [hereinafter DEP'T OF JUSTICE].
24. Id.
25. 42 U.S.C. § 12181 (7) (1994).
26. 42 U.S.C. § 12181(1) (1994), 28 C.F.R. § 36.104 (1996).
27. Civil Rights Act of 1964, Pub. L. No. 88-352 § 201 (c), 78 Stat. 241, 243 (1964).
28. PuBLIC ACCESS SECTION, U.S. DEP'T OF JUSTICE, THE AMERICANS WITH DISABILITIES ACT:
TITLE III TECHNICAL ASSISTANCE MANUAL 1 (1993 & Supp. 1 1994).
29. H5 S. Ct. 1624 (1995).
30. Id. at 1629-30.
31. Id. at 1630 (citing Katzenbach v. McClung, 379 U.S. 294,299-301 (1964)).
32. The categories include places of lodging such as inns, hotels, and motels; establishments,
such as restaurants and bars, that serve food or drink; movie theaters, theaters, concert halls, and other
entertainment establishments; places of public gathering, like auditoriums, convention centers, and
lecture halIs; sales and retail establishments, including bakeries, grocery stores, hardware stores, or
shopping centers; service establishments, which include banks, barber shops, funeral parlors, gas
stations, pharmacies, insurance offices, and lawyers' and accountants' offices; stations used for
specific public transportation, such as terminals or depots; places of public display and collection, such
as museums, galleries, and libraries; places of recreation, including parks, zoos, and amusement parks;
places of education, including nursery, elementary, secondary, undergraduate, and postgraduate private
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come under one of the categories, the fact that a particular entity is not among the
examples listed does not mean that the entity is excluded from coverage under Title
III. 33 There are no exclusions based on a facility's size. 34 The ADA does not cover
strictly residential facilities,35 but does cover policies of public accommodations
within residential facilities. 36 Therefore, while neither the ADA nor the courts have
specifically indicated that nursing homes are subject to Title Ill's antidiscrimination
provisions, since nursing homes provide social services and serve as health care
providers-activities offered by public accommodations-then the facility or the
portion of the facility used for covered purposes is a place of public accommodation
under the ADA,37
The American Health Care Association takes the position that nursing homes are
classified as medical care facilities under the Act,38 In addition, the Department of
Justice has accepted complaints filed against nursing homes under the ADA,39 and
cases have been filed in the federal courts alleging ADA violations. 4o Furthermore,
neither the Department of Justice nor the courts have dismissed claims alleging
violations of the ADA by nursing homes. However, where claims have been
schools; social service centers, such as day care centers, senior citizen centers, homeless shelters, food
banks, and adoption agencies; and places of exercise and recreation, like gymnasiums, health spas,
bowling allies, and golf courses. 42 U.S.C. § 12181(7) (1994).
33. DEP'T OF JUSTICE, supra note 23, at 111-27.
34. ABA COMM'N, supra note 10, at 9.
35. DEP'T OF JUSTICE, supra note 23, at 4.
36. Residential facilities were excluded from the ADA because it was thought that they were
covered by the Fair Housing Act Amendments of 1988. DEP'T OF JUSTICE, supra note 23, at 11129-111-31. Although commentators maintain that in some cases nursing homes may be covered by the
Fair Housing Amendments, and in others by both statutes (LAWYERS CO-OPERATIVE PuBLISHING
COMPANY, AMERICANS WIlli DISABILITIES: PRACTICE AND COMPLIANCE MANUAL 14 (1992»,
generally the Fair Housing Act is not intended to be applicable to residential facilities such as nursing
homes, which, in addition to providing living quarters, also provide medical and rehabilitative care
and social services. Therefore, although the Fair Housing Act prohibits discrimination on the basis
of disability in housing, it is not relevant to this discussion.
37. DEP'T OF JUSTICE, supra note 23, Supp. 1, at 2.
Nursing homes are covered as social service center establishments. Similar residential facilities,
such as congregate care facilities, independent living centers, and retirement communities, are
covered by Title III, if they provide a significant enough level of social services that they can
be considered social service center ·establishments. Social services in this context include
medical care, assistance with daily living activities, provision of meals, transportation,
counseling, and organized recreational activities. No one of these services will automatically
trigger ADA coverage. Rather, the determination of whether a private entity provides a
significant enough level of social services will depend on the nature and degree of the services.
[d.
38. AM. HEALlli CARE ASS'N, ADA COMPLIANCE CHECKLIST FOR LONG TERM CARE FACILITIES:
A CHECKLIST FOR COMPLIANCE WIlli TITLE 111 PROVlSIONS OF THE AMERICANS WIlli DISABILITIES ACT
4 (1991) [hereinafter COMPLIANCE CHECKLIST).
39. OJ 202-39-2, LaSalle Convalescent Home, Minneapolis, Minnesota (1995).
40. See Coalition of Montanans Concerned with Disabilities, Inc. v. Gallatin Airport Auth., 957
F. Supp. 1166 (D. Mont. 1997); Anonymous v. Legal Servs. of Puerto Rico, 932 F. Supp. 49 (D.P.R.
1996); Abbott v. Bragdon, 912 F. Supp. 580 (D. Me. 1995); Harding v. Wino-Dixie Stores, Inc., 907
F. Supp. 386 (M.D. Fla 1995).
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brought under both the ADA and section 794 of the Rehabilitation Act of 1973,
courts have held that when the issue can be resolved under section 794, it is not
necessary to consider the ADA claims. 41
Religious entities are exempt under Title I1I. 42 A religious entity is a religious
organization or an entity controlled by a religious organization,43 or a place of
worship.44 Even when a religious organization carries out activities that would
otherwise make it a public accommodation, the religious organization remains
exempt from ADA coverageY Therefore, a nursing home operated by a religious
organization is exempt. 46 Significantly, the exemption applies even if the religious
organization uses a board of lay persons to operate the facility as long as the
religious organization controls the operation of the facility.47 The key concept is
control.
However, religious organizations are not specifically exempted from Title II of
the Act. 48 If a religious organization participates in a state or local government
program that provides services to the public, such as offering counseling or
religious services at a nursing home operated by a governmental body, it is bound
by the governmental entity's obligation to comply with the ADA's requirements.
Thus, the religious organization, by virtue of its participation in the program, may
not discriminate against individuals with disabilities in its provision of such
contracted services. 49
III. INDIVIDUALS PROTECTED BY THE ACT
To fall within the ADA's protection, under either Title II or Title III, an
individual must have a physical or mental impairment that substantially limits one
or more major life activities of the individual, have a record of such an impairment,
or be regarded as having such an impairment.~o An impairment is defined as a
"physiological disorder or condition, cosmetic disfigurement or anatomical loss
affecting one or more ofthe following body systems: neurological, musculoskeletal, .
special sense organs ..., respiratory ..., cardiovascular, reproductive, digestive,
genitourinary, hemic and lymphatic, skin, and endocrine."51 An impairment may
41. Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1006 n.3 (3d Cir. 1995).
42. 28 C.F.R. § 36.102(e) (1996).
43. DEP'TOF JUSTICE, supra note 23, at 1ll-37.
44. 28 C.F.R. § 36.201 (1996).
45. NAT'L ORG. ON DISABILITY, LOVING JUSTICE, THE ADA AND THE RELIGIOUS COMMUNITY:
How THE AMERICANS WITH DISABILITIES ACT AFFECTS RELIGIOUS INSTITUTIONS INCLUDING
CONGREGATIONS, HOSPITALS, NURSING HOMES, SEMINARIES, UNNERSITIES, COLLEGES, SCHOOLS, CAMPS
AND SOCIAL SERVICE AGENCIES 13 (1995) [hereinafter LOVING JUSTICE).
46. DEP'T OF JUSTICE, supra note 23, at I11-37.
47. LOVING JUSTICE, supra note 45, at 13.
48. See 28 C.F.R. § 36.1 02(e) (1996), which specifically states that religious entities are exempt
from the requirements of Title Ill, but there is no corresponding language in 28 C.F.R. § 35.102
(1996), the corresponding regulation for Title n.
49. LOVING JUSTICE, supra note 45, at 12.
50. 42 U.S.c. § 12102(2)(1994).
51. 28 C.F.R. §§ 35.104, 36.104 (1996).
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also be any mental or psychological disorder, such as mental retardation, organic
brain syndrome, emotional or mental illness, or a specific learning disability.s2
Since the impairment must be one that substantially limits a major life activity,s3
it is necessary to define such activities. Major life activities include caring for
one's self, performing manual tasks, walking, seeing, breathing, learning, and
working.S<! For example, persons with mental retardation are substantially limited
in the major life activity of learning, while persons suffering from dementia are
substantially limited in their abilities to care for themselves. Numerous cases have
determined who is and who is not considered disabled under the Act. 55
An individual has a record ofan impairment when that person has a history of an
impairment substantially limiting a major life activity. 56 For example, someone
who has recovered from mental illness is an individual with a record of impairment.
Furtherniore, a person who is treated as having a physical or mental impairment that
substantially limits a major life activity, regardless of whether the person actually
possesses such an impairment, is regarded as having an impairment. 57 In essence,
to come under this provision, the person must be treated as having an impairment
although the impairment does not actually exist. The person who is not allowed to
participate in programs or activities because of myths, fears, or stereotypes
associated with disabilities comes under this third test. 58 The key element is
whether the public accommodation perceives the individual as having a disability.
The individual is not required to demonstrate that the perception is wrong. 59
Although "disability" must be determined through a case-by-case analysis, the
majority, if not all, of nursing home residents will have no difficulty meeting the
statutory requirements of disability or impairment. The nature of nursing homes
is such that the majority of residents suffer from some form of physical or mental
impairment that limits one or more major life activities. Rarely wiII a resident not
be considered "disabled" under the Act. For example, residents with Alzheimer's
disease or mental illness are impaired in their abilities to care for themselves, while
the respiratory systems of residents diagnosed with tuberculosis also would be
impaired.
Reported statistics concerning the number of disabled elderly in nursing homes
are somewhat dated, but they give a sense of the potential for applying the ADA.
In 1985, 1,300,000 disabled persons over the age of sixty-five resided in nursing
52. 28 C.F'.R. §§ 35.104, 36.104 (1996).
53. 28 C.F.R. § 35.104 (1996).
54. DEP'T OF JUSTICE, supra note 23, at 111-19..
55. In Doe v. Kohn Nast & Graf, P.C, 862 F. Supp. 1310, 1321 (E.D. Pa. 1994), the coun found
that the HIV-infected plaintiff had a physical or mental impairment that substantially limited one or
more of his major life activities, and, thus, had a disability within the meaning of the ADA. In O'Neil
v. Alabama Dep '( ofPub. Health, 826 F. Supp. 1368, 1371 (M.D. Ala. 1993), the plaintiffs, 82- and
88-year-old nursing home residents suffering from Alzheimer's Disease, were considered to be
"individuals with disabilities" as defined by 42 U.s.c. § \2102(2). In City ofNewarkv. 1.5., 652 A.2d
265, 274 (N.J. Super. Ct. 1993) the coun found that 28 C.F.R. § 35.104 explicitly mandates that
tuberculosis is deemed a disability under the ADA.
56. 28 C.F.R. §§ 35.104 (Title 11),36.104 (1996) (Title III).
57. 28 C.F.R. §§ 35.104 (Title 11),36.104 (1996) (Title III).
58. DEP'T OF JUSTICE, supra note 23, at 111-23.
59. /d.
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homes in the United States. 60 Six hundred thousand were age eighty-five or older.
Meanwhile, 5,100,000 disabled elderly persons remained in the community. Of
those living in the community, 1,000,000 were age eighty-five or 01der. 61 Of those
residing in nursing homes, 400,000 had fewer than three activity of daily living
(ADL) dependencies, while 900,000 had three or more ADLs. In the community,
3,300,000 dwellers had fewer than three ADLs, and 1,600,000 had three or more. 62
In addition, although age itself is not considered a disability,63 younger people
tend to have negative attitudes toward older people and to stereotype the elderly as
disabled. As a result, the elderly, as a class, are frequently perceived to be disabled
even if they possess no physical or mental impairments. Michele J. Hawkins
surveyed 420 college students concerning their attitudes toward the elderly.64 The
students were asked to rate elderly men and women as positive or negative in
twenty categories. 6s Overall, the respondents viewed the elderly subjects more
negatively as they aged. 66 Men in the seventy-five to ninety-nine and one hundred
plus age groups were viewed as dependent, and women in all the age
categories-sixty-five to seventy-four, seventy-five to ninety-nine, and one hundred
plus-were considered to be dependent. 61 On the item "healthy-sick," both men
and women in all age groups received positive responses from less than twenty-five
percent of the total sample.68
Young adults are not the only age group to view the elderly as disabled or
dependent. Those under age sixty-five often tend to believe that the majority of
"old people" (those past 65) are senile (that is, have a defective memory, are
disoriented, or are demented); that all five senses tend to decline with old age; that
the majority of old people are miserable most of the time; that old people are
usually not healthy; that old people are dependent on others to meet their needs; and
that old people live in institutions. 69
In Coso Maria, Inc. v. Superior Court ofPuerto Rico,'o the court took notice of
the testimony of an expert witness, Dr. Carmen Sanchez, who "stated explicitly that
older senior citizens (over 75) as a group are often regarded as being handicapped
and are treated as such."71 If Dr. Sanchez's statement is regarded as true, then all
persons seventy-five and older will be considered disabled under the ADA's third
test for determining disability-being regarded as having an impairment even
though none exists.
60. ALICE M. RivLIN & JOSHUA M. WIENER, CARING FOR THE DISABLED ELDERLY: WHO WILL
PAY? 6 (1988).
61. [d.
62. [d.
63. DEP'TOF JUSTICE, supra nole 23, at 111-19.
64. Michele J. Hawkins, College Students' Attitudes Toward Elderly Persons, 22 EDUC.
GERONTOLOGY 271, 277 (1996).
.
65. Id.
66. Id.
67. Id.
68. [d. at 274.
69. Kathleen Buckwalter et aI., Attitude Problems, 89 NURSING TIMES 55, 56 (Feb. 3, 1993);
Helen Jones, Altered Images, 89 NURSING TIMES 58, 59 (Feb. 3, 1993).
70. Casa Maria, Inc. v. Superior Court, 752 F. Supp. 1152 (D. P.R. 1990).
71. Id. at 1168.
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To be covered by Title II of the Act, as in section 504 of the Rehabilitation Act
of 1973, an individual must be both disabled and a qualified individual. 72 To be
considered a qualified individual, the individual with the disability, "with or
without reasonable modifications to rules, policies, or practices, the removal of
architectural, co1nmunication or transportation barriers, or the provision ofauxiliary
aids and services," must meet "the essential eligibility requirements for the receipt
of services or the participation in programs or activities provided by a public
entity."73 The definition of "qualified individual" under Title II is derived from
"qualified disabled person" in the Department of Health and Human Services'
regulation implementing section 504 of the Rehabilitation Act of 1973. 74 The
variety of potential circumstances in which an individual's qualifications may be
at issue make it impossible to include specific criteria in the definition. 75
Interpreting "otherwise qualified" handicapped individuals in section 504 of the
Rehabilitation Act of 1973, the Supreme Court held in Southeastern Community
College v. Davis76 that such an individual is one who meets all of the program's
requirements in spite of his or her handicap.77 The court in Flowers v. Webb 78 also
dealt with the issue of who was a qualified individual. It held that the plaintiff was
not an otherwise qualified handicapped individual and was not denied placement
solely because of her handicap in violation of the Rehabilitation Act of 1973.79 This
holding was based on the finding that the plaintiff sought placement and care
appropriate to mentally retarded individual due to the fact that she was handicapped, not in spite of her handicap.80
Establishing that a disabled individual is otherwise qualified under Title II
requires looking beyond the physical or mental impairment establishing the
disability. The Third Circuit in Wagner v. Fair Acres Geriatric Center,81 a case
brought under both Title II of the ADA and section 504 of the Rehabilitation Act
of 1973, discussed in some detail what a nursing home resident must do to be
"otherwise qualified."s2 The court recognized that skilled and intermediate nursing
facilities exist to serve the physically and mentally impaired who can no longer care
for themselves. s3
Although some courts require that to be "otherwise qualified" the disabled
individual must seek services in spite of his or her disability and not because of it,84
the Wagner court stated that, for purposes of section 504, the reason a plaintiff
sought access to a program, service, or institution is irrelevant. as Under section 504,
a
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
42 U.S.C. § 12131 (1994).
42 U.S.c. § 12131(2) (1994).
45 C.F.R. § 84.3(k) (1995).
DEP'TOF JUSTICE, supra note 23, at 11-26.
Southeastern Community College v. Davis, 442 U.S. 397 (1979).
ld. at 406.
575 F. Supp. 1450 (E.D.N.Y. 1983).
29 U.S.c. § 794 (1994); Flowers, 575 F. Supp. at 1456.
Flowers, 575 F. Supp. at 1456.
49 F.3d 1002 (3d Cir. 1995).
ld. at 1009-12.
ld. at 1010.
Southeastern Community College, 442 U.S. at 406; Flowers, 575 F. Supp. at 1456.
Wagner, 49 F.3d at 1010.
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the concern should be the reason a plaintiff is denied access to a program, service,
or institution. 86
The court also stated that "no one would be able to meet a nursing home's
admission requirements in the absence of some handicapping condition necessitating nursing home care."87 All applicants seek access to a facility because of
disabilities, not in spite of them. 88 If nursing home residents are not considered
"otherwise qualified" because they seek care for their disabilities rather than in spite
of them, no program, service, or institution designed specifically to meet the needs
of the handicapped would ever comply with section 504. 89 This reasoning would
contradict both the statutory and regulatory frameworks of section 504.90
The essential eligibility requirements vary depending on the service or program
in question. In a case concerning access to state financing for in-home, long-term
care, the Third Circuit held that determining whether a person is a qualified
individual may require a review of the program's eligibility criteria. 91 In Easley
v. Snider, the plaintiffs, two disabled persons, brought an action challenging the
Pennsylvania Attendant Care Services Act's requirement that participants in the
state's attendant care program be mentally alert. 92 Plaintiffs were denied access to
the program because they were not "qualified individuals."93
In Easley, the court noted the test for determining if a person is a "qualified
individual."94 The court stated:
A handicapped individual who cannot meet all of a program's requirements is not
otherwise qualified if there is a factual basis in the record reasonably demonstrating
that accommodating that individual would require either a modification ofthe essential
nature of the program or impose an undue burden on the recipient offederal funds. 95
The court then declared that if there is no factual basis to establish,
that accommodating the individual would require a fundamental modification or an
undue burden, then the disabled person is otherwise qualified, and refusal to waive the
requirement is discriminatory. Therefore, when determining whether a program
discriminates, a court must determine two things: (I) whether the plaintiff meets the
program's stated requirements in spite of his/her handicap, and (2) whether a
reasonable accommodation would allow the handicapped person to receive the
program's essential benefits.96
86. [do at 1010.
/d.
88. /d.
87.
89. [d.
90. [d.
91. Easley v. Snider, 36 F.3d 297, 302 (3d Cir. 1994).
92. [do at 299.
93. [d.
94. [d. (citing Strathie v. Department of Transportation, 716 F.2d 227, 231 (3d Cir. 1983».
95. /do at 302.
96. [do
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The court in Easley cautioned that programs may attempt to define a benefit in
a way that "effectively denies otherwise handicapped individuals the meaningful
access to which they are otherwise entitled."97 Therefore, the program's stated
benefits cannot be relied on solely when determining whether or not a reasonable
accommodation would allow the handicapped person to receive the program's
essential benefits. 9s The court further found that "mental alertness ... is an
essential dimension of the Attendant Care Program without which the objectives of
the program cannot be realized."99 Therefore, the plaintiffs, although physically
disabled, were not otherwise qualified for the state plan, and the state's eligibility
qualifications for extended care services survived the challenge. loo
A recent nursing home case interpreting whether a disabled individual is
otherwise qualified is Grubb v. Medical Facilities ofAmerica, Inc. 101 In Grubb, the
defendant denied the plaintiff admission to two facilities because she sl,lffered from
multiple sclerosis and weighed over 300 pounds. 102 The defendant's facilities did
not offer subacute care, which is a "level of care approximately four times greater
than that offered at a regular nursing facility."IOJ The court held that the level of
care required by the applicant was an essential element of the admissions process. 104
The plaintiff was not otherwise qualified since, as a result of her need for a higher
level of care than that offered by the facility, she did not meet the essential
element. lOS The court further held that Title III of the ADA did not require the
defendant to accommodate the plaintiff by becoming a subacute care provider. 106
IV. THE ADA AND SECTION 504
The ADA is not an isolated piece of legislation. Rather, the Act was intended to
supplement and fill in the gaps left by previous legislation. 107 Specifically, the
ADA expands the coverage of section 504 of the Rehabilitation Act of 1973, lOS
which provides that "no otherwise qualified individual ... shall, solely by reason
of her or his disability be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity receiving Federal
97. Id. at 302 (quoting Alexander v. Choate, 469 U.S. 287, 301 (1984».
98. Id.
99. Id. at 303.
100. Id. at 306.
101. 879 F. Supp. 588 (W.D. Va. 1995).
102. !d. at 588.
103. Id. at 589 n.2.
104. Id.at591.
105. Id.
106. !d. at 589.
107. Earlier legislation prohibiting discrimination on the \lasis of disability includes the Voting
Accessibility Act for the Elderly and Handicapped Act, 42 U.S.c. § 1973ee (1994); Architectural
Barriers Act of 1968,42 U.S.C. § 4151 (1994); Developmental Disabilities Assistance and Bill of
Rights Act, 42 U.S.c. § 6000 (1994); Voting Act Education for All Handicapped Children Act of
1975, Pub. L. No. 101-476,104 Stat. 1142 (1990), and Pub. L. No. 94-142, 89 Stat. 773 (1975); Air
Carriers Access Act of 1986, Pub. L. No. 99-435, 100 Stat. 1080 (1986); Development Act of the
Uniform Federal Accessibility Standards, 49 Fed. Reg. 31,528 (1984).
108. 29 U.S.C. §§ 701-797 (1994).
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financial assistance."109 "Section 504 regulations llO and case law provide the
concepts, terminology, and analysis that guide ... the application of the ADA."III
The Rehabilitation Amendments of 1992 112 amended the language of the Rehabilitation Act of 1973, including section 504, to replace the phrase "individuals with
handicaps" with the phrase "individuals with disabilities" so the terminology of the
two acts would be consistent. 113 While the ADA complements section 504, it does
not replace it.
There are numerous similarities between the two acts; however, the ADA's
coverage is much more extensive than section 504. The ADA extends protection
to most of the private sector and to state and local governmental agencies that were
excluded from section 504 because they did not receive federal funding. 1I4 Also,
many terms, concepts, and definitions in the ADA come directly from the
regulations that implement section 504. Although the term "readily achievable,"
as applied to the removal of architectural barriers under Title III, is new to the
ADA, the definition of "disability" and terminology such as "reasonable
accommodation," "qualified individual with a disability," "essential function," and
"undue hardship" come directly from section 504. 115
Neither Act is intended to be an affirmative action statute. 116 Both seek to dispel
stereotypes and assumptions about disabilities, to ensure equal opportunity, and to
encourage full participation, independent living, and economic self-sufficiency for
the disabled. lI7 Both laws also stress the concept of equal opportunity, not merely
equal treatment, in eliminating discrimination. I IS In fact, identical treatment might
in itself be discriminatory because it would not allow for the individualized
accommodation necessary to achieve equal opportunity} 19 In addition, both Acts
require that goods, services, privileges, advantages, and accommodations be
provided in the most integrated setting appropriate to the needs ofthe individuals. 120
One of the differences between the two laws is that section 504 applies only to
institutions that receive federal funds. 121 On the other hand, Title II requires that all
services, programs, and activities of all state and local government departments and
agencies be accessible to qualified individuals with disabilities. 122 Moreover, there
are no exemptions under Title II based on the types of activities covered. 123
109. 29 U.S.c. § 794(a) (1994).
110. 45 C.F.R. §§ 84.1-84.61(1996).
Ill. BUREAU OF NAT'L AFFAIRS, THE AMERICANS WITH DISABILITIES ACT: A PRACTICAL AND
LEGAL GUIDE TO IMPACT, ENFORCEMENT, AND COMPLIANCE 23 (1990).
112. Act of October 29, 1992, Pub. L. No. 102-569, 106 Stat. 4344 (1992).
113.
[d.
114. THOMPSON PUBL'GGROUP, SECTION 504 COMPLIANCE HANDBOOK '11220 at 31 (1995).
115. THOMPSON PUBL'GGROUP, SECTION 504 COMPLIANCE HANDBOOK '\11001 (1994).
116. [d. at '\11000.
117. See 29 USc. § 701 (1994); 42 U.S.c. § 12101 (1994).
118. 29 U.S.c. § 701 (1994); 42 U.S.C. § 12101 (1994).
119. THOMPSON PUBL ' GGROUP, SECTION 504 COMPLIANCE HANDBOOK '\11010 (1994).
120. !d.; DEP'T OF JUSTICE, supra note 23, at IlI-48.
121. THOMPSON PUBL'GGROUP, SECTION 504 COMPLIANCE HANDBOOK '\11001 (1994).
122. 28 C.F.R. § 35.104 (1996).
123. [d.
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V. DISCRIMINATORY ACTS
To bring an action under the ADA, the plaintiff must show that the facility's
conduct was discriminatory against an individual on the basis ofa disability.124 The
prohibitions under the Act are similar under both Title II and Title III. Any form
of discrimination on the basis of disability preventing individuals with disabilities
from participating in or receiving the benefits of services, programs, or activities
of a public entity,125 or preventing disabled individuals from the full and equal
enjoyment of any public accommodation, is prohibited. I26
The imposition or application of criteria "that screen out or tend to screen out"
individuals or classes of individuals "from fully and equally enjoying any service,
program, or activity [is prohibited,] unless such criteria can be shown to be
necessary for the provision of the service, or program, or activity being offered."127
The prohibition includes the imposition of policies or criteria that, while not
creating a direct bar to disabled individuals, indirectly prevents or limits their
ability to parti~ipate.128 Policies that impose requirements or burdens unnecessarily
on disabled individuals, but are not imposed on others, are also prohibited. 129
Objective standards must be used to determine whether particular services,
activities, or programs are available to the disabled. 130 Neutral criteria may be
established conditioning the receipt of goods or services as long as the criteria are
necessary for the safe provision of those offerings and are applied neutrally to all
clients or customers, regardless of whether or not they are individuals with
disabilities. I31
Both Title II and Title III require that reasonable accommodations be made to
permit disabled individuals the opportunity to participate fully in programs and
activities. 132 The concept of "reasonable accommodation" found in the ADA is
identical to that found in section 504 of the Rehabilitation Act of 1973. Titles II and
III of the ADA do not define "reasonable accommodation," but mandate "a factspecific, case-by-case approach" as to what constitutes a reasonable accommodation. I33 However, Title I defines "reasonable accommodation" as "making existing
facilities used by employees readily accessible to and usable by individuals with
disabilities."134 The extent to which modifications must be provided to allow
participation depends upon individual needs. 135 A reasonable accommodation may
124. 42 U.S.c. § 12112 (1994).
125. 28 C.F.R. § 35.130 (1996).
126. DEP'TOF JUSTICE, supra note 23, at II1-41.
127. 28 C.F.R. §§ 35. 130(b)(8), 36.301(a) (1996).
128. DEP'TOF JUSTICE, supra note 23, at 11-48.
129. Id.
130. Id. at 11-37, II1-73.
13 I. Id.
132. 28 C.F.R. §§ 35.130,36.301.
133. Sue A. Krenek, Beyond Reasonable Accommodation, 72 TEx. L. REv. 1969, 1985-86 (1994).
134. 42 U.S.C. § 121 II (9)(A) (1994).
135. 28 C.F.R. § 35.130(b)(7) (1995) (Title II); 28 C.F.R. § 36.202 (1995) (Title III).
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include providing auxiliary aids and services: modifying policies, practices, and
procedures; or removing architectural barriers. 136
A facility does not have to provide an accommodation if doing so would result
in an undue hardship. 137 Again, the concept of "undue hardship" is not defined by
either the Act or the regulations. "Undue hardship" has been characterized as the
label for accommodations that courts have refused to require in particular cases. 13S
Among the factors considered in determining if an accommodation creates an
undue hardship are the nature and cost of the accommodation, the overall financial
resources of the facility, the effect ofthe accommodation on the facility's operation,
and the type of operation of the covered entity.'J9 An accommodation is not
reasonable if it requires a fundamental alteration in the nature of the goods,
services, facilities, privileges, advantages, or accommodations provided. 140
Numerous cases have determined what constitutes a reasonable accommodation.
In Southeastern Community College, the Supreme Court held that under section 504
of the Rehabilitation Act of 1973, two factors determine the reasonableness of a
refusal to accommodate a disabled individual. 14l Pirst, requiring an accommodation
is unreasonable if the accommodation places an undue burden, such as extensive
costs, on the recipient of federal funds. 142 Second, an accommodation is also
unreasonable if it would necessitate modifying the essential nature of the
program.143 Section 504 does not require fundamental or substantial program
modifications. '44
In Alexander v. Choate,'45 the Supreme Court held that showing a disparate
impact was not sufficient to establish a violation of the ADA. The plaintiffs filed
suit when Tennessee reduced Medicaid coverage of inpatient care from twenty to
fourteen days annually.'46 While conceding that Medicaid patients with disabilities
are more likely to require inpatient care than nondisabled beneficiaries, the Court
recognized the need to balance the statutory rights of the disabled to be integrated
into society and the· legitimate interests of federal grantees in preserving the
integrity of their programs as established in Southeastern Community College. 147
Grantees are not required to make "fundamental" or "substantial" modifications to
148
accommodate the disabled, but may be required to make reasonable ones. In a
footnote, the Court attempted to distinguish between "changes," "adjustments," or
"modifications" to existing programs that would be "substantial" or would
136. JoAnne Simon, The Use ofInterpretersfor the Deafand the Legal Community's Obligation
to Comply with the A.D.A., 8 J. LAW & HEALTH 155, 157 (199311994).
137. Krenek, supra note 133, at 1972.
138. [d. at 1982.
139. [d. at 1986.
140. [d. at 1980; Alexander v. Choate, 469 U.S. 287, 299 (1985).
141. Southeastern Community College v. Davis, 42 U.S. 397 (1979).
142. Southeastern Community College, 442 U.S. at 412.
143. [d.
144. [d. at 413.
145. Alexander v. Choate, 469 U.S. 287, 308 (1985).
146. [d. at 289.
147. Southeastern Community College, 442 U.S. at 405.
148. Alexander, 469 U.S. at 300.
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THE ADA & NURSING HOME DISCRIMINA TION
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constitute a "fundamental alteration in the nature of the program," and those
changes that would be reasonable accommodations. 149
In Strathie v. Department ofTransportation, 150 a case brought under Title I of the
ADA, the scope ofjudicial review was questioned with regard to the reasonableness
of a refusal to accommodate a disabled individual. 151 In developing the standard of
review, the court recognized that program administrators are entitled to some
measure ofjudicial deference due to their experience with, and knowledge of, the
program in question. 152 However, the court found that allowing broad judicial
deference resembling that associated with the "rational basis" test would substantially undermine congressional intent in enacting section 504. 153
The court in Strathie believed that these competing interests were reconciled
under a standard which established that a disabled individual who could not meet
all the program's requirements was not otherwise qualified if the facts on the record
reasonably demonstrated that accommodating the individual would require either
modifying the essential nature of the program, or imposing an undue burden on the
entity receiving federal funds. l54 Under the standard, it is first necessary to
ascertain the essential nature of the program and, then, to address why the
accommodation would be inconsistent with that purpose. ISS
If the provision of services, activities, or programs to the disabled individual
would constitute a significant risk or direct threat to the health or safety of others,
and the risk or threat cannot be eliminated through a modification of policies,
practices, and procedures, or by the provision of auxiliary aids or services, neither
Title II or Title III applies. 156 Persons who pose significant risks to others will not
be "qualified" if reasonable modifications to the public entity's policies, practices,
and procedures will not eliminate the risks. 157
The determination that an individual poses a direct threat to the health and safety
of others cannot be based on generalizations or stereotypes about the effects of
various disabilities. Such determinations require an individualized assessment,
based on reasonable judgment, that considers current medical evidence or the best
available objective evidence to determine the nature, duration, and severity of such
risk; the probability that potential injury will actually occur; and whether a
reasonable modification will mitigate the risk. 158 Sources of medical knowledge
include public health authorities, such as the U.S. Public Health Service, the Center
for Disease Control, the National Institute of Health, and the National Institute of
Mental Health. 159
149. !d. at 720 n.20.
150. 716 F.2d 227 (3d Cir. 1983).
151. [d. at 231.
152.
153.
154.
155.
[d.
[d.
!d.
Strathie, 716 F.2d at 232.
156. 28 C.F.R. § 36.208 (1996); DEP'TOF JUSTICE, supra note 23, at 11-27.
157. DEP'TOF JUSTICE, supra note 23, at 11-27.
158. School Bd. of Nassau County v. Arline, 480 U.S. 273, 287-88 (1987).
159. PuBLIC ACCESS SECTION, U.S. DEP'T OF JUSTICE, AMERICANS WIlli DISABILITIES ACT TInE
III TECHNICAL ASSISTANCE MANUAL 18 (1992 & Supp. 1993).
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Individual inquiry is necessary to protect against discrimination based on
prejudices, stereotypes, or unfounded fears, while giving appropriate weight to
legitimate concerns. 16O If a public accommodation imposes necessary and
legitimate safety requirements, such requirements must be based on real risks and
not on speculation, stereotypes, or generalizations. 161
The definition of "disability" in both section 504 and the ADA refers generally
to "physical and mental impairments."162 Neither law makes a distinction between
contagious and non-contagious impairments. 163 However, this distinction gained
prominence in School Board ofNassau County v. Arline. l64 An elementary teacher,
who was fired from her job solely because of her susceptibility to tuberculosis,
brought an action alleging her dismissal violated the Rehabilitation Act of 1973. 165
The Supreme Court held that a person suffering from the contagiou's disease of
tuberculosis can be a disabled person within the meaning of section 504. 166 The
Court recognized that few aspects of a disability give rise to the same level of
public fear and misapprehension as contagiousness, and that section 504 is carefully
structured to replace such reactions to actual or perceived disabilities with actions
based on reasons and medically sound judgments. 167
The Court stated the fact that some persons who have contagious diseases may
pose serious health threats to others under certain circumstances does not justify
excluding from the Act's coverage all persons with actual or perceived contagious
diseases. 168 The requirement that the individuals who are disabled because of
contagious diseases must also be otherwise qualified for the benefits sought,
protects the public from the danger of catching the diseases. 169 Persons who pose
a significant risk of communicating infectious diseases to others will not' be
otherwise qualified if reasonable accommodations will not eliminate the risk. '70
When Congress passed the ADA, it essentially codified Arline,171 which is cited in
the legislative history. 172
Also, programs must be provided in the most integrated setting appropriate to the
needs of the disabled individual. 173 An integrated setting is one that allows the
160. Jd. at 17; Anderson v. Little League Baseball, 794 F. Supp. 342, 345 (D. Ariz. 1992)
(upholding the requirement that public accommodations conduct an individualized assessment as
required under 28 C.F.R. § 36.208(c) before determining that a disabled individual poses a threat to
the health and safety of others).
161. DEP'TOF JUSTICE, supra note 23, at 11-18 & I1I-18.
162. Jd. at 11-16-11-18.
163. AMERICAN CIVIL LmERTIES UNION, EPIDEMIC OF FEAR, A SURVEY OF AIDS DISCRIMINATION
IN THE 1980s AND POLICY RECOMMENDAnONS FOR THE 19905 51 (1990).
164. 480 U.S. 273 (1987).
165. Jd. at 276.
166. Jd. at 289.
167. Jd. at 284-85.
168. Jd. at 285.
169. Jd.
170. Jd. at 287 n.16.
171. Thomas D. Brierton, An Examination ofthe ADA 's Direct Threat Defense, 45 LAB. L.J. 618,
620 (1994).
172. S. REP. No. 101-116, at 40 (1989).
173. 28 C.F.R. §§ 35.130(b)(7)(e)(I), 36.203(b), (c) (1996).
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disabled individual to interact with the nondisabled to the fullest extent possible.1 74
A person with a disability must have the option of declining a particular accommodation. 17s Nothing in the ADA requires disabled individuals to accept special
accommodations or services that may segregate them. 176 Medical treatment,
including treatment for a particular condition, is not considered to be a special
accommodation. 177
There are some differences in the provisions of Titles II and III. Under Title III,
a public accommodation is required to provide auxiliary aids and services to ensure
effective communication with persons who have hearing, vision, or speech
impairments unless a fundamental alteration or an undue burden would result. 178
As previously noted, an undue burden is a significant expense and must be
determined on a case-by-case basis. 179 The factors used in identifying an undue
burden are identical to those used in determining if barrier removal is readily
achievable. 180 However, "undue burden" is a higher standard than "readily
achievable" and requires more of an effort on the part of the public
accommodation. 181 Nonetheless, public accommodations are not required to
provide a disabled individual with personal or individually prescribed devices. 182
Yet, the cost of compliance with the reasonable accommodation or auxiliary aid
regulation may not be financed by surcharges limited to particular individuals with
disabilities or to any group of individuals with disabilities. 183
Public accommodations may refer an individual with a disability to another
public accommodation if that individual seeks or requires treatment or services
outside the referring public accommodation's area of specialization and if, in the
normal course of its operation, it would make a similar referral for an individual
without a disability seeking or requiring the same treatment or services. 184 Under
appropriate circumstances, this regulation would appear to allow a nursing home
to transfer or refer a resident to another facility better able to meet the resident's
needs.
VI. THE ADA AND OBRA-87
Applying the ADA to nursing homes creates unique issues because nursing
homes are heavily regulated, particularly under the Nursing Home Reform Act. 18s
This Act was part of OBRA·87 and established a new emphasis on quality of care
174.
175.
176.
177.
178.
179.
DEP'T OF JUSTICE, supra note 23, at 1I-43.
ld. at 1I-43.
[d. at 11-44.
ld.
28 C.P.R. § 36.203 (1996).
See DEP'T OF JUSTICE, supra note 23, at I1I-78.
180. ld. at 11I-34.
181. COMPLIANCE CHECKLIST, supra note 38, at 9.
182. DEP'T OF JUSTICE, supra note 23, at 11I-84.
183. ld. at 11I-84.
184. ld. at II1-74.
185. Pub. L. No.1 00-203, § 4201(a)(3), 101 Stat. 1330-160 (1987) (codified as amended at '42
U.s.c. § 1395i-3 (1994».
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and patients' rights. 186 Under OBRA-87, nursing homes are not required to accept
every applicant. 187 In addition, OBRA-87 specifies that residents have the right to
reside and receive services with reasonable accommodations of individual needs
and preferences, except where the health and safety of the individual or other
residents would be endangered. 188
OBRA-87 requires long-term care facilities to evaluate each new resident using
the "resident assessment instrument" to develop an individualized care plan. 189 The
individualized care plan enables the facility to maintain the highest practical,
physical, mental, and psychosocial well-being of the resident. l90 The care plan
describes the medical, nursing, and psychosocial needs ofthe resident and how such
needs will be met. 191 Both mental and physical abilities are assessed during the
preparation ofthe care plan. 192 The mental assessment includes evaluations of longand short-term memory, recall, cognitive skills for daily decisionmaking, and
indicators of delirium. 193
OBRA-87 also establishes procedures for transferring or discharging nursing
home residents. l94 A resident, an immediate family member, or a legal representative must be given notice if the resident is to be discharged or transferred. 195 In
addition, the facility must indicate the reason(s) for discharging the resident and
must provide a mechanism for appealing an involuntary transfer or discharge. 196
Although OBRA-87 does not define "transfer" or "discharge," the regulations do.
A "transfer" includes "movement of a resident to a bed outside of the certified
facility whether the bed is in the same physical plant or not."197 Movement of a
resident to a different bed within the same certified facility is not considered a
transfer. 198 However, if a resident is moved from a Medicare-certified section of the
facility to a section certified only for Medicaid, the transfer rules apply because the
resident has moved from one distinct part to another. "Discharge" is defined as
moving the resident to a noninstitutional setting when the releasing facility ceases
to be responsible for the resident's care. l99
Once a resident has been admitted to a facility, the facility's ability to transfer or
discharge the resident is significantly restricted. A transfer or discharge may be
initiated by the facility only under five circumstances: (I) the resident's welfare
cannot be met in the facility; (2) the resident's health has improved sufficiently so
186. Pub. L. No. 100-203, 101 Stat. 1330 (1987).
187. 42 U.S.C. § 1395i-3 (1994).
188. 42 U.S.c. § 1395i-3(c)(I)(A)(v) (1994).
189. 42 U.S.C. §§ 1395i-3(e)(5) & (f)(6) (1994).
190. 42 U.S.C. § 1395i-3(b)(2) (1994) (Medicare); 42 U.S.c. § 1396r(b)(3) (1994) (Medicaid).
191. 42 U.S.C. § 1395i-3(b) (1994).
192. 42 U.S.C. § 1395i-3(b) (1994).
193. HEALTH CARE FIN. ADMIN., U.S. DEP'T OF HEALTH AND HUMAN SERVICES, LONG TERM
CARE RESIDENT ASSESSMENT INSTRUMENT USER'S MANUAL 3-41-3-48 (1995).
194. 42 U.S.C. § 1395i-3(c)(2) (1994) (Medicare); 42 U.S.C. § 1396r(C)(2) (1994) (Medicaid).
195. 42 U.S.C. § 1395i-3(c)(2) (1994).
196. 42 U.S.C. § 1395i-3(c)(2) (1994).
197. 42 C.F.R. § 483.12(a)(I) (1995).
198. 42 C.F.R. § ~83.12(a).
199. HEALTH CARE FIN. ADMIN., U.S. DEP'T OF HEALTH AND HUMAN SERVICES GUIDANCE TO
SURVEYORS 32 (1995).
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that the services provided by the facility are no longer needed; (3) the safety or the
health of the individuals in the facility are endangered; (4) the resident, after
reasonable and appropriate notice, has failed to pay for a stay at the facility; or
(5) the facility ceases to operate. 200
Facilities typically assert that the resident needs more care than the facility can
provide, or that the resident's behavior is disruptive or aggressive and threatens the
health and safety of other residents. 201 When a facility alleges that the resident's
welfare cannot be met by the facility, the resident's physician must document this
fact in the resident's clinical record. 202 Any physician may document that the
resident's continued presence in the facility endangers the health and/or safety of
other individuals in the facility, but such documentation must also become part of
the resident's clinical record. 203
Recognizing that a large number of nursing home residents suffer from mental
illness and that many, if not most, nursing homes do not have the staff necessary to
provide appropriate mental health care due to their traditional focus on custodial
rather than rehabilitative care, OBRA-87 instituted the Preadmission Screening and
Annual Resident Review (PASARR). Support for PASARR was provided by the
National Institute of Mental Health, which in 1985 estimated that nursing homes
were the single largest place to care for the mentally ill, although these facilities
were often ill-equipped to handle the special needs of mentally ill residents. 204
The stated goals ofPASARR were: (1) to prevent states from placing people with
mental disabilities in nursing homes when they could no longer be confmed in
mental institutions, and (2) to prod states into creating community based services
for those individuals. 20s Originally, PASARR applied to anyone diagnosed with
mental illness, but OBRA-90 limited the application to those with serious mental
illness. 206 The original definition covered all individuals with mental illness by
including any mental disorder listed in the Diagnostic and Statistical Manual of
Mental Disorders. 207 However, the 1990 amendment placed responsibility for
actually defining "serious mental illness" with the Secretary of Health and Human
Services in consultation with the National Institute of Mental Health. 20B
To achieve the first goal, the states must develop a plan providing for the
screening of all new residents at the time of admission, and annual screenings of
residents with mental illness. 209 The screening is designed to determine if the
200. 42 U.S.c. § 1395i-3(c)(2)(A) (1994) (Medicare); 42 U.S.C. § 1395r(c)(2)(A) (1994)
(Medicaid).
20 I. Michael Schuster et aI., Nursing Home Transfer and Discharge Protections: Rights Not Fully
Recognized, 26 CLEARINGHOUSE REv. 619, 620 (1992).
202. 42 U.S.C. § 1395i-3(c)(2)(A) (1994).
203. Schuster et al., supra note 201, at 620.
204. David S. Douglas, RXfor the Elderly: Legal Rights (and Wrongs) Within the System, 20
HARV. C.R.-C.L. L. REv. 423,447 (1985).
205. Beth Pepper & Deborah P. Rubenstein, What Preadmission Screening and Annual Resident
Review Meansfor Older People with Mental Illness, 27 CLEARINGHOUSE REv. 1447 (1994).
206. Pub. L. No. 101-508, § 4801,104 Stat. 1388-211 (1990).
207. See generally AMERICAN PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS: DSM-IV (1994).
208. Pepper & Rubenstein, supra note 205, at 1450.
209. 42 C.F.R. §§ 483.104, 483.106 (1995).
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resident has a serious mental illness, and; if the resident is diagnosed as mentally
ill, whether nursing home care is appropriate. 21O If the review process establishes
that the services provided by the nursing home are not needed, the applicant cannot
be admitted to a Medicaid-certified facility.211 Anyone who has resided in a nursing
home for thirty consecutive months before being diagnosed as seriously mentally
ill must be given the option of remaining or leaving. 212 To allow for an infonned
choice, the state must provide infonnation as to the institutional and noninstitutional alternatives covered under Medicaid. 2lJ
Three criteria must be satisfied for a person to be considered to have a serious
mental illness. First, the individual must suffer from a major disorder. 214 Second,
in the past six months, the disorder must have caused functional limitations in major
life activities. 21S Finally, the person must have experienced partial or inpatient
hospitalization at least once in the past two years, or in the past two years, there
must have been a substantial disruption of the person's normal living situation due
to the mental disorder that required supportive services, residential treatment, or
resulted in an intervention by housing or law enforcement officials.216 A resident
with a primary or secondary diagnosis of a mental disorder has a serious mental
illness. However, a primary diagnosis ofdementia, including Alzheimer's disease,
does not constitute a serious mental illness. 217
PASARR may be used either to facilitate or to avoid nursing home placement.
In some instances, mentally ill residents may be diagnosed with dementia to
facilitate nursing home placement by avoiding PASARR requirements. 218 Although
the criteria used to establish a diagnosis of serious mental illness limit its
applicability, nursing homes may still attempt to rely on PASARR to justify
denying admission to potentially troublesome patients on the ground that they are
seriously mentally ill. 219 PASARR was intended to prevent the dumping of
mentally ill individuals on nursing homes if, with the provision of appropriate
supportive services, they would be capable ofliving in the community.220 PASARR
was not intended to prevent an elderly person who is confused or suffering from
Alzheimer's disease from receiving needed nursing home care.
VII.
DISCRIMINATORY ACTIONS
Potentially discriminatory nursing home actions under the ADA include refusing
to provide reasonable accommodations for a resident, denying admission to an
applicant, transferring or discharging a resident, and failing to allow a resident to
210.
21 I.
212.
213.
214.
215.
216.
217.
218.
219.
220.
Pepper & Rubenstein, supra note 205, at 1449.
See id.
42 U.S.C. § 1396r(e)(C) (1994); 42 C.F.R. § 483.118 (1994).
42 C.F.R. § 483.118 (1994).
42 C.F.R. § 483.102(b)(I)(ii)(1994).
Id.
Id.
Id. § 438.102(b)(l )(i)(B)(1995).
Pepper & Rubenstein, supra note 205, at 1451.
42 U.S.C. § 1396r(e)(7)(A)(i)(1994).
Pepper & Rubenstein, supra note 205, at 1147-48.
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THE ADA & NURSING HOME DISCRIMINATION
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participate in an integrated setting. Since the facts of each situation will be
different, the detennination of whether an action is discriminatory will depend on
the facts stated in the complaint.
A.
Physical Barriers
Because nursing homes exist to accommodate the physically disabled, those
provisions of Titles II and III concerning access requirements relating to the
removal of structural barriers are rarely at issue. While rare, this is not to say that
there are no such claims. One example arose in Minneapolis. 221 To reduce the use
of chemical and physical restraints, the operators of a three-story facility converted
the second story into a secure unit by installing security devices in the elevator and
locking doors and stairways.m Prior to the conversion, a young, adult male resident
lived on the second floor and, because he enjoyed doing so, he remained there. 223
Following the conversion, he was unable to operate the elevator security device
from his wheel chair, making him dependent on others for ingress and egress to the
second floor. 224
The resident declined to relocate to the third floor for a variety of reasons,
including the fact that he did not want to live on an intensive care floor. 22S The first
floor was not an option because it was not staffed sufficiently to ensure that the
resident's needs would be met. 226 After a variety of alternatives were explored,
none of which were satisfactory to the resident, he filed a Title III claim under the
ADA. 227
After reviewing the complaint, the Department ofJustice declined to take further
action on the matter. 228 In its decision, the Department of Justice stated that its
action did not constitute an interpretation of whether a violation of the ADA
occurred, and in no way affected the complainant's ability to pursue other legal
remedies. 229 As a result, although the Department of Justice declined to act on the
matter, the resident could pursue further legal action. 230
Most charges of discrimination are likely to arise in the areas of admissions,
transfers, and discharges, as well as from attempts to segregate residents,
particularly those who are mentally impaired or are suffering from contagious
diseases. Some believe that nursing homes in the future will become increasingly
specialized. 231 Even today, different facilities maintain different philosophies and
221. Kathleen A. Connelly & Marie C. Infante, Americans with Disabilities Act: Applications to
Nursing Homes, in LONG TERM CARE AND TIlE LAW I (1994).
222. Id. at 2.
223. Id. at 2-3.
224. Id. at 3.
225. Id.
226. Id.
227. Id. at I.
228. Letter from Public Access Section, U.S. Department of Justice, to Kathleen A. Connelly,
General Counsel, Health Dimensions (Mar. I, 1995).
229. Id.
230. Id.
231. Connie 1. Evanshwick, Strategic Management ofa Continuum ofCare, J. LONG TERM CARE
ADMIN. 13, 16-17 (Fall 1993).
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UNIVERSITY OF TOLEDO LA W REVIEW
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[Vol. 28
provide different levels of care. Therefore, admission, transfer, discharge, and
segregation policies must be reviewed case-by-case to determine if the policies
result in discrimination on the basis of disability.
B.
Dementia and Other Behavior Problems
Nursing homes are not required to admit all applicants. 232 It would be unwise to
insist that a nursing home accept a resident whose care needs exceed the capabilities
ofthe facility. However, a nursing home may not refuse admission on grounds that
the potential resident will be difficult. 233
The leading case addressing discriminatory admission policies is Wagner v. Fair
Acres Geriatric Center. 234 The Third Circuit opinion established that, although a
resident may be a challenge to care for, it is not a sufficient reason to deny
admission. 235 In Wagner, the plaintiff, Margaret Wagner, who suffered from
Alzheimer's disease, brought suit under the Rehabilitation Act of 1973 and Title II
of the ADA against the defendant based on Fair Acres' decision that she was not
appropriate for placement in the facility at the time she applied. 236
Fair Acres is a county-operated, skilled intermediate nursing facility with 900
beds. 237 Approximately sixty percent of its patients suffer from Alzheimer's disease
or other forms of dementia, but it is not equipped to handle psychiatric patients. 238
The facility's policy was "if an applicant for admission poses a threat of injury to
himself or others, the application is rejected."239 An applicant with a psychiatric
history is reviewed individually to determine if the applicant's primary diagnosis
and condition are medical and warrant.nursing home placement, and ifthe applicant
can be absorbed comfortably and appropriately into the facility's population.240
Mrs. Wagner suffered from relatively common form of Alzheimer's disease,
characterized by screaming, agitation, and aggressive behavior. 241 Originally
admitted into a private nursing facility, within one month she was transferred to a
geriatric psychiatric program due to severe episodes of agitated behavior and
confusion.242 After repeated applications to Fair Acres were rejected because of
continued episodes of combative, agitated, and assaultive behavior, she was
admitted to a special care unit for Alzheimer's patients in a facility approximately
eighty-five miles from her home. 243 Her medical records from this facility showed
a
232.
233.
234.
235.
236.
237.
238.
239.
240.
241.
242.
243.
28 C.F.R. § 36.302 (1996).
See Wagner v. Fair Acres Geriatric etr., 49 F.3d 1002 (3d Cir. 1995).
Id.
See id.
Id. at 1004.
Id. at 1005.
Id.
[d.
Id.
Id.
Id.
Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1006 (3d Cir. 1995).
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THE ADA & NURSING HOME DISCRIMINATION
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that she was physically abusive and engaged in other socially inappropriate or
disruptive behavior. 244
The U.S. District Court held that Mrs. Wagner failed to establish a claim for
relief under the Rehabilitation Act based on a reasoned medical decision by Fair
Acres concluding that it could not properly treat the patient's symptoms as they
then existed. 245
There was no dispute that Alzheimer's disease rendered Mrs. Wagner a
handicapped person within the meaning of the Act and that a person with
Alzh.;:imer's disease cannot be denied admission on that basis alone. 246 However,
the court held that, in this instance, "it was not the fact that Mrs. Wagner suffered
from Alzheimer's disease that caused her rejection but the pattern of agitation,
assaultive and combative behavior iliat continued almost unabated."247 The law
does not require an entity receiving federal assistance to offer specialized treatment
for particular handicaps.248 "Mrs. Wagner was not 'otherwise qualified' for admission to Fair Acres because it was not the function of Fair Acres to provide
psychiatric services. . . ."249 Whether the handicap is defined as Alzheimer's
disease or as the effects of Alzheimer's, it is not a violation of section 504 to
differentiate among applicants on the basis of attributes of the handicap.25o The
court held that the decision not to admit was "a medical treatment decision made
by ... medical and health care professionals and medical treatment decisions are
generally immune from scrutiny under Section 504."251
On appeal, the Third Circuit vacated and remanded, holding that the decision as
to whether the plaintiff was otherwise qualified for admission was not a medical
treatment decision immune from scrutiny under section 504, and the plaintiff
presented legally sufficient evidence to establish that she was otherwise qualified. 2S2
In determining whether Mrs. Wagner was otherwise qualified, the court resolved
the issue by determining whether an individual would be otherwise qualified if
reasonable accommodations were made for the handicap.2S3 The reasons why a
person sought access to a program, service, or institution was considered to be
irrelevant because everyone that applies to a nursing home does so because of a
disability.254 No one would be able to meet a nursing home's admission requirements without evidence of some disability requiring nursing home care. 2S5
Although there was ample evidence that Mrs. Wagner was a challenging and
demanding patient, the court found that this fact alone was insufficient to justify her
o
244.
245.
246.
247.
248.
249.
250:
251.
252.
253.
254.
255.
/d. at 1014.
Wagner v. Fair Acres Geriatric Ctr., 859 F. Supp. 776 (£.D. Pa. 1994).
[d. at 780.
/d. at 781.
[d. at 783.
[d.
/d.
[d.
Wagner v. Fair Acres Geriatric Ctc., 49 F.3d 1002, 1019 (3d Cir. 1995).
/d. at 1009.
[d. at 1010.
[d. at 1009.
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UNIVERSITY OF TOLEDO LA W REVIEW
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exclusion from Fair Acres. 2S6 The plaintiff's expert stated that agitated behavior did
not mean that she could not be managed in a nursing home and, beyond generalizations that it could not care for Mrs. Wagner, Fair Acres presented scant evidence
about the type of accommodations it would need to make to provide that care. 257
No evidence was offered that calming techniques used at other institutions could
not be employed at Fair Acres, or that to do so would impose an undue burden on
Fair Acres or change its essential nature from a nursing home to an acute
psychiatric facility.2S8
The Wagner case appears to have generated very little interest in legal and
nursing home literature. The National Law Journal reported that it was the first
case involving the rights of an Alzheimer's patient under the ADA. 259 The district
court and Third Circuit opinions clearly present the positions of the facility and the
patient. There appears to be a fine line between refusing to admit a resident
because the facility is unable to treat the resident's disruptive and aggressive
behavior, and refusing to admit because the resident engages in disruptive and
aggressive behavior.
It appears that if Fair Acres had specifically demonstrated, rather than merely
alleged, that the accommodations it would have to make for Mrs. Wagner were
unreasonable, it might have been more successful,260 In addition, Alzheimer's is a
progressive disease. While Fair Acres may not have been able to properly care for
Mrs. Wagner when she first applied for admission, testimony reported in the
opinion indicates that, by the time she was denied admission for the last time, the
nature of Mrs. Wagner's behavior had changed substantially.261 As the disease
progressed and Mrs. Wagner became more physically handicapped, she spent most
of her days sitting in a chair, staring off into space. 262 While few applicants may be
as persistent as Mrs. Wagner, nursing homes may be wise to assess specific
behaviors at the time applications are made and not rely on earlier symptoms or
behavior patterns. Both nursing homes and residents will benefit from a careful
reading of Wagner.
Another potential admission issue arises with the creation of special units for the
care of residents with Alzheimer's disease. These units are usually secure and
designed to allow the residents freedom of movement, while eliminating their
ability to wander from the facility. Although protecting the residents, the units also
segregate them from the rest of the facility.
The ADA does not preclude a nursing home from creating such a unit,263 and
separate programs are not discriminatory when a more integrated setting is not
appropriate,z64 However, although case law is lacking in this area, it would seem
evident that under most circumstances a nursing home may not condition admission
256.
257.
258.
259.
260.
261.
262.
263.
264.
ld. at 1015.
ld.at 1016-17.
ld. at 1016.
For the Record: Legal News Briefs: Pennsylvania, NAT'L L.J., Feb. 28, 1994, at 6.
Wagner, 49 F.3d at 1016.
ld. at 1006.
Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1017 (3d Cir. 1995).
DEP'TOF JUSTICE, supra note 23, at Ill-23.
ld.at III·48.
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THE ADA & NURSING HOME DISCRIMINATION
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on placement in a special care unit. A nursing home must allow participation in the
most integrated setting available and may not require that a resident take advantage
of special accommodations. 265 Residents that are eligible for the special care units,
but choose to enter the integrated portion of the facility instead, must be allowed to
do so. Moreover, the facility is obligated to make reasonable accommodations for
the residents as if no special program existed. 266
The resident who engages in aggressive or violent behavior is also a candidate
for transfer or discharge since difficult residents increase the workload for staff and
disturb fellow residents. Before OBRA-87, the solution would have been to control
such behavior through the use of chemical or physical restraints. Now that such
measures are prohibited,267 the easiest solution is to make the troublesome resident
someone else's problem. However, before the resident may be transferred on the
basis that the facility lacks the resources for proper care, the facility must
demonstrate what actions it has implemented to modify the resident's behavior.
Often, if it is determined what events or situations cause the disruptive behavior, it
is possible to modify the behavior by avoiding disruptive situations.
"Behavioral difficulties of persons with [Alzheimer's] are generated biophysiologically, as a result of the disease progression, and/or environmentally,
because of incompatibilities between the resident's level ofcoping and environmental demands."268 Suggested ways for nursing home staff to minimize agitated
behavior include becoming familiar with the resident's medical record, establishing
a rapport with the resident, developing a sensitivity to the resident's feelings, and
using positive body language and facial expressions. 269 Nursing home literature
also suggests the following strategies as means ofdealing with agitation: removing
demands that are beyond the resident's ability, validating the resident's feelings,
and introducing emotional support. 270 These are relatively simple procedures that
allow a facility to care properly for residents with dementia and other behavior
problems.
C.
infectious Diseases
An infectious disease diagnosis is one reason a nursing home would attempt to
transfer a current resident or refuse to admit an applicant. The contention is that the
facility is not capable of caring for the resident, or that the individual is a threat to
the health or safety of the other residents or staff members. While a transfer
265. ld. at IIl-48.
266. ld. at IIl-48 & I1I-49.
267. Nursing home residents have the right to be free from any physical or chemical restraints
imposed for purposes of discipline or convenience and not required to treat the resident's medical
symptoms. 42 U.S.C. § 1395i-3(c)(I)(A)(ii) (1994); 42 C.F.R. § 483.13 (1995).
268. Taher Zandi, Understanding DiffICult Behaviors ofNursing Home Residents: A Prerequisite
for Sensitive Clinical Assessment and Care, 8 supp. I ALZHEIMER DISEASE AND ASSOCIATED
DISORDERS S345 (1994).
269. ld. at 349-50.
270. /d. at S351.
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UNIVERSITY OF TOLEDO LA WREVIEW
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predicated on either basis is permitted under OBRA-87, such decisions must also
be made within the requirements of the ADA. 27I
AIDS and tuberculosis are illustrative of the increasing incidence of infectious
diseases. In the past, the vast majority of all nursing home residents were elderly.
But today, the AIDS epidemic has introduced a new generation of younger nursing
home patients. Studies show that ten to twenty-five percent of people with AIDS
need long-term care as the disease has changed from an acute to a chronic, more
manageable illness for a longer period oftime.272 Moreover, research has improved
public knowledge of how mv is transmitted and what precautions are necessary to
prevent that transmission. Still, there are many fears and misconceptions about
AIDS, and those suffering from the disease are frequently stigmatized. The fact
that there is still no cure for AIDS increases the negative attitudes.
Nursing facilities that receive Medicare or Medicaid funding are prohibited under
section 504 from refusing to admit people with AIDS. 273 Even so, a 1989 study that
tracked hospitalized AIDS patients who needed long-term care in the Chicago area
found that the only facility accepting AIDS patients was one county facility that had
a long waiting list,274 Additionally, a national survey by the American Civil
Liberties Union released in June of 1990 found people with AIDS were regularly
denied nursing home care. 27S In the early 1990s, there were numerous reports of
nursing homes refusing to accept AIDS patients,z76 In fact, the Office of Civil
Rights found that, between 1986 and 1991, AIDS victims filed 615 complaints
against nursing homes. 277 Such statistics indicate that stereotypes and prejudices
concerning the disease are common. 278
Once known as the "white plague," tuberculosis (TB) was the leading cause of
death in the United States during the nineteenth century and the early half of the
twentieth century.279 Highly contagious, TB spreads through the airborne transmission of TB bacteria. Unlike AIDS, TB threatens the general public because it
spreads by the mere act ofbreathing.28o Whether or not an individual contracts TB
271. 42 U.S.c. § 1395i-3(c)(2)(1994).
272. Kay Mason, Caringfor People with AIDS. PROVIDER, May 1992, at 31.
273. [d. at 32.
274. [d.
275. Chapin Wright, AIDS Bias Finds New Victims, NEWSDAY, June 17, 1990, at 7.
276. Two greater Cincinnati nursing homes were the target of a federal suit by a man, infected
with AIDS, who claimed he was denied a bed because of his illness. Tim Bonfield, Two Nursing
Homes Discriminate Against AIDS Patients Suit Says, CINCINNATI Bus. COURIER, Feb. 19, 1990, at
3. An AIDS patient wanted to die in his hometown of Rockford, Illinois, but the closest nursing home
willing to admit him quickly was in Chicago. Nursing Homes Slow to Admit AIDS Patient, AIDS
WKLY., Sept. 30,1991, at 17. A North Fort Myers, Florida nursing home refused to admit an AIDS
patient. Nursing Home Faces Finefor Turning Away AIDS Patient, AIDS WKLY., Nov. 18,1991, at
17. It is no secret that AIDS patients have a difficult time obtaining long-term care outside of
hospitals. Providers Finding Long-term Care Bedsfor AIDS Patients, 7 AIDS ALERT 157 (Oct. 1992).
277. OFFICE OF INSPECTOR GEN., DEP'T OF HEALTH AND HUMAN SERVICES, HNIAIDS: NURSING
HOME DISCRIMINATION COMPLAINTS 7 (1993).
278. [d.
279. Josephine Gittler, Controlling Resurgent Tuberculosis: Public Health Agencies. Public
Policy. and Law, 19 J. HEALTH POL. POL'y & LAW 107, 108 (1994).
280. Cynthia A. Carlon, Tuberculosis Control: Will Our Legal System Guard Our Health and
Will the ADA Hamper Our Control Efforts?, 13 J. LEGAL MED. 563,564 (1992).
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THE ADA & NURSING HOME DISCRIMINATION
515
after contact with an infected person depends on several factors, including the
nature and extent of the infected person's disease and symptoms, and the frequency,
duration, and intimacy of an individual's contact with an infected person. 28 I The
standard public health estimate is that it takes six months of eight-hour day
exposure to the airborne mycobacteria to contract TB from an individual with an
active case of the disease, although there have been extremes in both directions?B2
Furthermore, the risk of transmission is heightened in closed, poorly ventilated,
and/or crowded settings, such as nursing homes.
While TB is largely curable, the development of new strains of bacteria that are
resistant to the frontline anti-tuberculosis drugs has altered traditional treatment
patterns. TB is also a special concern for nursing homes because the elderly
residents are often frail and tend to be more susceptible to infection. The welfare
of the staff who are in close contact with residents on a daily basis is also a concern.
Although health and safety considerations are permissible grounds for transferring or discharging a resident, legally, a facility must first demonstrate that it has
explored less severe alternatives. 283 When proposing to move a resident to another
facility, the nursing home must demonstrate that it cannot provide the services
required by the resident,284When maintaining that the resident threatens the safety
of other residents, the nursing home must indicate what actions it has taken to
alleviate the threat ofinfection. m
Although AIDS is incurable and ultimately fatal, nursing home administrators
will fmd it difficult to establish that an HIV-infected or AIDS patient is a threat to
the health and safety of the other residents or staff. If proper procedures
(accommodations) are followed, the risk of transmission can be substantially
reduced, if not eliminated.286 Other health care facilities have developed policies
and procedures concerning the treatment of HIV-infected and AIDS patients.
Therefore, a nursing home will likely have a difficult time establishing that no
reasonable accommodations would permit a resident with AIDS from receiving the
same services as an AIDS-free resident. The facility must act on objective medical
evidence and not on the stereotypes or prejudices of the staff or other residents. 281
To justify transferring, discharging, or isolating a resident, or denying admission
to an applicant, the facility must demonstrate that the individual's actual behavior
puts the staff or other residents in danger of contracting the disease, and that the risk
cannot be controlled without denying access to the facility.288
It may be easier for a nursing home to demonstrate that there are no reasonable
accommodations to protect other residents and staff when the disabled resident has
active TB. The ease with which the bacteria is spread, the increased susceptibility
281. Gittler, supra note 279, at 109.
282. Carlon, supra note 280, at 565.
283. Schuster, supra note 201, at 620.
284. [d.
285. rd.
286. ACLU, EPIDEMIC OF FEAR: A SURVEY OF AIDS DISCRIMINATION IN THE 19808 AND POLICY
RECOMMENDAnONS FOR THE 1990s 31 n.21 (1990).
287. DEP'T OF JUSTICE, supra note 23, at III-71.
288. Vicki Gottlich, Protection for Nursing Facility Residents under the ADA, 18 GENERATIONS
45 (1994).
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UNIVERSITY OF TOLEDO LA WREVIEW
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due to the frailty of the residents, and the close and constant contact that is part of
nursing home life make it difficult to provide equal services or benefits in an
integrated setting without endangering the health of the staff and other residents.
However, before concluding that any accommodation is impossible or unduly
burdensome, the facility should attempt to obtain the latest research from one of the
health authorities, such as the Center for Disease Control or the National Institute
of Health, to determine the availability ofnew treatments or ifnew procedures have
been devised to reduce the risk of transmission.
Under OBRA-87, nursing homes that receive Medicaid or Medicare funding are
required to provide residents with the care and services necessary for them to
"attain or maintain the highest practicable physical, mental, and psychosocial wellbeing of each resident.,,289 The Health Care Financing Administration (HeFA)
promulgated regulations known as the "Residents' Bill of Rights" to assist facilities
in achieving these goals. 29O The quality oflife provisions specify that residents have
the following rights: to choose activities that are consistent with their interests; to
make choices about aspects of their lives in the facilities that are significant to the
residents; to participate in social, religious, and community activities that do not
interfere with the rights of other residents; and to reside and receive services in the
facilities with reasonable accommodations of individual needs and preferences,
except when the health or safety of the individuals or other residents would be
endangered?9\
Problems arise when one resident's rights under the ADA conflict with another
resident's rights under the Residents' Bill of Rights. A facility may find it
necessary to develop creative solutions to balance the rights of all the parties. For
instance, when a resident who needs assistance eating wants to have his or her
meals in the main dining room, rather than in a separate room, the facility could
designate one section of the dining room as an assisted feeding area, or assign tables
so that those who object to eating with a particular resident are seated some distance
away. A more difficult situation arises when a resident with dementia disrupts
routine social events. Staff would have to balance the right to participate in an
integrated setting with the right to live peacefully in the nursing home.
A nursing home may also attempt to transfer a resident using PASARR. Before
the review is applicable, the resident must exhibit symptoms of serious mental
illness as dermed in PASARR. 292 As noted, dementia is not a serious mental illness
under PASARR. 293 When a seriously mentally ill resident needs nursing home care,
but also requires special services to treat his or her mental illness, PASARR
requires that the state provide or arrange for providing the specific services
required. 294
289. 42 U.S.C. 1395i-3(b)(2), 1396r(b) (1994).
290. Residents' rights are codified in 42 C.F.R. § 483.10 (1995), transfers in 42 C.F.R. § 483.12
(1995), use of restraints in 42 C.F.R. § 483.13 (1995), and quality of life in 42 C.F.R. § 483.15 (1995).
29\. 42 C.F.R. §§ 483. 15(b)(1), (b)(3), (d), (e)(I) (1995).
292. Id. § 483.102.
293. Pepper & Rubenstein, supra note 205, at 145\.
294. 42 C.F.R. § 483.116 (1995).
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However, these resn-ictions do not mean that the ADA always prohibits a resident
from being transferred. In Alexander v. Pathfinder. Inc.,29s the plaintiffs son,
Larry, a thirty-two-year-old male, suffered from an array of physical problems, in
addition to being severely mentally retarded as a result of Downs Syndrome. 296 The
evidence established that Larry was reluctantly admitted to Pathfinder, an
intermediate care facility for the mentally retarded, because of the extent of his
physical problems. 297 After admission, the frequency of his illnesses and the need
for medical intervention increased significantly.29s Before being admitted to
Pathfinder, Larry had been a resident in a "total care" unit at another facility that
refused to transfer him to Pathfinder because the staff did not believe Pathfinder
was an appropriate facility for his placement.299 Therefore, the plaintiff had her son
discharged and admitted to Pathfinder, rather than transferred. 3°O The plaintiff
wanted her son to be at Pathfinder because it was closer to her home. 301 After
Pathfinder made the decision that Larry should be transferred, the plaintiff filed an
action under the ADA. 302
The court held that the discharge was reasonable and necessary, precluding a
claim brought under the ADA that the plaintiffs son was discriminated against in
a public accommodation on the basis of his disability?03 The court reasoned that
the ADA was never intended to prevent a facility whose "customers" are all
disabled from limiting the scope of the services that it provides. 304 All facilities
cannot be required to serve individuals at every degree of disability.30s Congress
could not have intended to prohibit facilities that care for the disabled from
specializing. 306 While disabled persons must be afforded the option to avail
themselves of the services offered by an entity, the ADA does not require an entity
to provide extraordinary services that it is not set up to deliver. 307
VIII. OTHER AREAS OF ADA ApPLICABILITY
There are a variety of other situations in which the ADA may be applicable
because a nursing home's actions or policies discriminate on the basis of disability.
One potential form of discrimination prohibited by the ADA is differences in
fees. 30s In an era when cost cutting is a major priority, nursing homes may be
tempted to shift costs for accommodations to the residents that require the special
services to participate fully in facility activities.
295. Alexander v. Pathfinder, 906 F. Supp. 502 (E.D. Ark. 1995).
296. Id at 505.
297.
298.
299.
300.
301.
302.
303.
304.
Id
Id
Id at 509.
Id
Id
Id at 505.
Id at 507.
Id.
305. Alexander v. Pathfinder, 906 F. Supp 502, 507 (E.D. Ark. 1995).
306. Id.
307. Id.
308. DEP'T OF JUSTICE, supra note 23, at III-n.
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The ADA requires that a nursing home provide auxiliary aids or make reasonable
accommodations, but the facility may not impose a surcharge to cover the costs of
providing those auxiliary aids or accommodations. 309 However, a facility may
charge for extra services provided when similar charges would be imposed for the
same services ifperformed for a resident who is not disabled. 31O It does not appear
that the ADA prohibits a nursing home from charging higher rates based on the
higher level of care offered in a special care unit for Alzheimer's patients.31I
Another area in which potential ADA applicability arises is eligibility criteria for
certain activities that exclude residents with particular disabilities. m Limiting
participation in field trips or outings to ambulatory residents is one example. 313 In
this instance, the facility must make accommodations for residents with mobility
impairments. 314 Moreover, the facility must also show that the criteria imposed for
determining eligibility are necessary for the provision of the service.m
Similarly, cognitively impaired residents cannot be denied access to physical
therapy or other rehabilitative services because the facility presumes that the
residents' impairments render them incapable of benefitting from the service. 316
Denial of services must be based on individual assessments and not on assumptions
or stereotypes. Even if the improper decision to deny services is made by an
independent organization with whom the nursing home contracted for services, the
facility is not absolved ofliability. The ADA also precludes discrimination through
contractual, licensing, or other agreements. 317
CONCLUSION
Whether measured by increases in percentages or increases in absolute numbers,
there are more elderly Americans than ever before. 318 In terms of percentage of
growth, those over eighty-five are the fastest growing age groUp.319 As a person
ages, the likelihood of developing a chronic illness increases, as does the number
of physical and mental impairments, making it more likely that nursing home care
will be required. This outcome is particularly apparent in the incidence of
Alzheimer's. While only five percent of the population between sixty-five and
eighty are affected, twenty-five percent of those over eighty suffer from the effects
of Alzheimer's.32o
309.
310.
311.
312.
313.
314.
315.
316.
317.
318.
Id. at III-48.
28 C.F.R. § 36.301(c) (1996).
Gottlieb, supra note 288, at 46.
DEP'T OF JUSTICE, supra note 23, at 11I-7 I.
Gottlieb, supra note 288, at 46.
[d.
DEP'T OF JUSTICE, supra note 23, at 11I-71.
[d. at 11I-73.
[d. at 11I-46 & 11I-47.
Lawrence A. Frolik & Alison P. Barnes, Aging Population: A Challenge to the Law, 42
HASTINGS L.J. 683 (1991).
319. [d. at 693.
320. [d. at 698.
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THE ADA & NURSING HOME DISCRIMINATION
519
These changes in the composition of the population increase the importance of
the ADA's use as a tool to prevent and correct disability-based discrimination in
nursing homes. While it has not been used extensively to date, the ADA has the
potential to be an effective tool in protecting disabled nursing home residents,
particularly the mentally impaired and those suffering from infectious diseases,
from being denied admission to a nursing home, from impermissible transfers or
discharges, and from discrimination in the receipt of services. Health care law
practitioners must understand the ADA in order to educate nursing home staffs, not
only to prevent discriminatory actions, but also to provide residents with a means
of addressing discrimination when it occurs. Both the nursing home industry and
the nursing home resident advocacy groups need to recognize the ADA's potential
effect on their constituencies.
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