Assisted living residents, their families, providers, and
advocates for long-term care services are aware that
states regulate assisted living facilities. They know to look to
their state's statutes and administrative rules regulating
assisted living for information on residents' rights and protections.
Generally speaking, this system works well for
informing residents, providers, and advocates about the
rights and protections provided to assisted living residents by
state law.
However, this system does not work well for informing
residents, providers, and advocates about the rights and protections
provided by federal law. Specifically, important
housing anti-discrimination rights and protections based
upon disability are provided to assisted living residents under
the federal Fair Housing Act.
This paper advocates incorporating the Fair Housing
Act's disability mandates into state assisted living statutes
and rules as a means of educating residents and their families,
providers, and advocates about these important rights and
protections. This awareness will increase provider compliance
with the disability mandates of the Act, and enable residents,
their families, and advocates, to recognize
discriminatory practices and to protect their housing rights.
Being armed with knowledge of the Act's provisions will
help assisted living applicants and residents with disabilities
enter or remain in the assisted living facility of their choice.
Background
Assisted living facilities are a relatively new housing option
for older Americans. They serve as an intermediate option
between independent living and nursing facilities.1 Residents
of assisted living facilities generally have difficulty with
some activities of daily living, but do not require the level of
care provided at a nursing facility. Assisted living facilities
allow a resident to maintain a measure of independence,
while receiving assistance and health-care at the facility.2
Unlike other senior housing options, especially nursing facilities,
there is no agreed upon definition or federal regulation
of assisted living facilities. This has led to a wide variety of
definitions and variations in state regulations.3 For purposes
of this paper, assisted living facilities are defined as facilities
subject to state licensing requirements that provide long-term
housing, support services, and health services to individuals
who need assistance with several activities of daily living.4
Assisted living facilities are regulated by each individual
state rather than by the federal government, which regulates
nursing homes. In addition, several federal
anti-discrimination laws, including the Americans with
Disabilities Act and the Fair Housing Act, apply to assisted
living facilities. The Fair Housing Act provides important
protections to assisted living residents, which allow them to
maintain the confidentiality of their health information, or
request reasonable accommodations or modifications that
would permit them to move into or remain in a facility. State
laws regulating assisted living facilities are often ambiguous
or silent regarding the applicability of fair housing laws to
assisted living facilities. As a result, residents of those facilities
may not recognize situations where they are being subjected
to discrimination, may not be aware of their rights
under state and federal fair housing laws, and may not understand
how state and federal law can help them when they are
subjected to housing discrimination. Likewise, facility
providers may not realize that fair housing laws apply to their
facilities and may not realize when they are engaging in discriminatory
behavior. As a result, older Americans may be
improperly denied admittance to the facility of their choice,
may be improperly evicted from an assisted living facility, or
they may be involuntarily forced to move from an assisted
living facility to a nursing facility.
This paper looks at the degree to which states have
adopted or referenced Fair Housing Act language or requirements
in their assisted living statutes and administrative
rules. This paper first examines the history and intent of the
federal Fair Housing Act and various state fair housing laws
to see what differences exist between them. Next, this paper
analyzes the degree to which states have adopted or referenced
the federal Fair Housing Act or state Fair Housing Act
language in their assisted living statutes and administrative
rules. The relevant statutes and administrative rules of all 50
states and the District of Columbia were examined, in addition
to any relevant fair housing case law brought against
assisted living facilities by an individual with a disability.
Finally, this paper explores the lack of knowledge among
older Americans of their fair housing rights and the lack of
knowledge of providers of the applicability of fair housing
law to their facilities. This paper concludes by suggesting
statutory language that would help remedy the lack of awareness
of fair housing rights and prohibitions among assisted
living residents, providers, and advocates.
This paper's focus with regard to fair housing language
is limited to analyzing the prevalence of two important provisions
of the Fair Housing Act: the requirement that reasonable
accommodations in rules and procedures be provided to
individuals with disabilities so that they can fully enjoy residence
in an assisted living facility, and the prohibition against
inquiring into the existence or nature of a disability of an
individual entering an assisted living facility.

Fair Housing Act and Fair Housing
Amendments Act

As part of the Civil Rights Act of 1968, Congress passed the
Fair Housing Act (FHA). The original Act prohibited discrimination
in the sale or rental of housing on the basis of
race, color, religion, and national origin.5 In 1988 Congress
passed the Fair Housing Amendments Act (FHAA), which
added persons with disabilities to the list of protected persons6
for the purpose of ending the "unnecessary exclusion"
of individuals with disabilities and repudiating "the use of
stereotypes and ignorance" regarding individuals with disabilities.
7 The FHAA made it illegal to discriminate on the
basis of disability in the sale or rental of housing to an individual
with disabilities or an individual or a person associated
with the individual with disabilities.8 To fall under the
protections of the FHA, a person has to have a disability that
limits a major life activity, have a record of having a disability
limiting major life activities, or be regarded as having
such a disability.9 Major life activities include "functions
such as caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working."
10
An important prohibition protecting individuals with disabilities
is the prohibition against a property owner's refusal
to make "reasonable accommodations in rules, policies, practices,
or services" when such an accommodation is needed by
an individual with a disability in order to use and enjoy a residence.
11 In order to obtain a reasonable accommodation a
resident must request the accommodation, show that the
requested accommodation is related to the individual's disability,
and show that the accommodation is necessary to provide
the resident an equal opportunity to use and enjoy the
dwelling of their choice.12 However, a reasonable accommodation
does not have to be made when doing so would
impose an undue administrative or financial burden on the
property owner or would fundamentally alter the service provided
by the property owner.13 Examples of reasonable
accommodations include the waiver of a no-pet policy to
allow a service animal and changing a facility's parking policy
to provide a mobility-impaired individual easier access to
their unit.14
A second important prohibition under the FHA is the
prohibition against inquiring into the existence or extent of an
individual's disability upon application to a dwelling.15
However, inquiries can be made, provided they are made to
all applicants, as to whether an applicant can meet tenancy
requirements, whether the applicant qualifies for handicaponly
housing, and whether the applicant is involved with the
use or distribution of illegal substances.16
Although the Fair Housing Act is one place that a resident
of an assisted living facility can turn to learn about their
rights, residents may also look at their state's fair housing
laws and, in some cases, to their state's assisted living statutes
and administrative rules. The degree to which states have
adopted or referenced federal fair housing law into either
their own state fair housing laws or assisted living facility
laws is examined below, beginning first by looking at the various
state fair housing laws, and then by examining various
state assisted living facility statutes and administrative rules.
Individual State Fair Housing Laws
Many states have adopted their own fair housing laws that
mirror the Fair Housing Act. States have either incorporated
fair housing laws into more general civil rights laws or have
enacted specific fair housing laws. Twenty states17 have
enacted housing-specific anti-discrimination laws, while 27
states18 have enacted their fair housing laws within a general
civil rights or human rights law. In general, more states
have adopted language that includes a failure to make a reasonable
accommodation as a form of housing discrimination
against an individual with a disability than have adopted language
prohibiting inquiries into the nature and extent of an
individual's disability. Specifically, 46 states19 have enacted
the requirement that reasonable accommodations be made
when requested, while only 17 states20 have enacted the prohibition
against inquiring into the existence or extent of one's
disability. New Mexico has enacted a fair housing law that
does not contain either a requirement to grant reasonable
accommodations or a prohibition against inquiring into the
nature or extent of an individual's disability.21
Idaho, Mississippi, and Wyoming have not yet enacted
state fair housing laws.
The analysis of state fair housing laws is examined in
two parts, first looking at "reasonable accommodation" language
and second, looking at "no inquiry" language.
Reasonable Accommodation Language
Of the 46 states that have enacted "reasonable accommodation"
language, 45 states22 have enacted this provision in
their general statutes, while only New Jersey23 has done so
in its administrative rules. States have taken two approaches
with regard to federal law when enacting reasonable
accommodation language in their state fair housing law.
The most popular approach has been to incorporate the
exact language used in the Fair Housing Act into state law.
This approach has been taken by 35 states.24 An example of
this approach is Virginia, whose law states that, "housing
discrimination [against persons with disabilities] includes
… a refusal to make reasonable accommodations in rules,
practices, policies, or services when such accommodations
may be necessary to afford such person equal opportunity to
use and enjoy a dwelling."25
By contrast, 11 states have modified the language from
the Fair Housing Act in some way.26 One approach taken is
to condition the reasonableness of the requested accommodation
on financial or other concerns on the part of the
owner. Wisconsin's statute is typical, saying that a requested
accommodation must be made "unless the accommodation
would impose an undue hardship on the owner of the
housing."27
A second approach taken is to explicitly expand the
reach of the requirement, as Arkansas has, to include not
only private rooms, but "public and common use areas" as
well.28Afinal approach taken by those states modifying the
federal language is to explicitly apply the requirement not
just to owners, but to lessees, sub-lessees, managing agents,
or other persons who have the authority to rent or sell a
dwelling.29

No Inquiry Language

When a state has adopted the prohibition against inquiring
into the nature or extent of a disability, it is just as likely to be
found in a state's administrative rules rather than its statutes.
Nine states30 have enacted the prohibition in their general
statutes, while ten states31 place the prohibition in their
administrative rules. Both Massachusetts and Pennsylvania
have adopted the prohibition in both their general statutes and
administrative rules. Unlike the variation found in reasonable
accommodation laws, state laws prohibiting inquiries differ
little from the federal prohibition-seven states adopt the
federal language without any variation.32 Arizona's regulation,
which states that "it is unlawful to make an inquiry to
determine whether an applicant for a dwelling, a person
intending to reside in a dwelling after it is sold, rented, or
made available, or any person associated with that person,
has a handicap or to make inquiry as to the nature or severity
of a handicap of such person."33
There are three common variations to the federal language
among the other 12 states. The first is to explicitly
indicate that both written and oral inquiries into the existence
or nature of a disability are prohibited, as in California's law,
which states that "[i]t shall be unlawful … for the owner of
any housing accommodation to make or to cause to be made
any written or oral inquiry concerning the … disability of any
person."34 The second variation is to limit the prohibition
only to the individual seeking to purchase or rent, as in
Nebraska's law, which provides protection only to "a person
seeking to purchase, rent, or lease any housing."35 The third
variation is to list those sellers to whom the prohibition
applies, an approach taken by Alaska where the prohibition
extends to "the owner, lessee, manager, or other person having
the right to see, lease, or rent real property."36 Of the
three examples, none of the variations was the result of a
desire to change the federal "no inquiry" law. Rather, all three
states prohibited inquiries of members of a protected class
and added in individuals with disabilities as a protected class
after their passage of the prohibition.37
New Jersey's prohibition includes the caveat that an
inquiry is allowed when "such information is required by an
agency of local, state, or federal government and the person
states clearly that the information requested is intended for
use solely by the government agency,"38 but offers no explanation
of this caveat.

Assisted Living Facilities Are "Dwellings"
Under the Fair Housing Act

The federal Fair Housing Act prohibits discrimination on the
basis of disability in the sale or rental of a "dwelling."39 A
dwelling is defined as "any building, structure, or portion
thereof, which is occupied as, or designed or intended for
occupancy as, a residence by one or more families."40
Although it is the key to understanding what qualifies as a
dwelling, the Fair Housing Act does not define the term "residence."
41 Faced with the question, courts have adopted the
ordinary meaning of the term that a residence is "a temporary
or permanent dwelling place, abode, or habitation to which
one intends to return, as distinguished from the place of temporary
sojourn or transient visit."42 The Third Circuit has
applied this approach to find that a nursing home was a
dwelling under the Act because the residents consider the
nursing facility as their home "very often for the rest of their
lives."43
Like nursing facility residents, residents of assisted living
facilities enter with the intention of remaining there for a
significant period of time. Assisted living facilities are
designed to allow residents to "age in place" by offering a
variety of services and assistance.44 As with the nursing
facility described by the Third Circuit, residents of assisted
living facilities often make the facility their final home as
"many individuals who move into [assisted living facilities]
end their lives there."45 Given that assisted living facilities
share the same characteristics that make nursing facilities
dwellings, there is no question that assisted living facilities
are dwellings under the Fair Housing Act.

Fair Housing Laws Have Been Applied to
Assisted Living Facilities

Both courts and litigants have accepted that assisted living
facilities fall within the definition of a dwelling as found in
the Fair Housing Act. In Lapid-Laurel v. Zoning Board of
Adjustment of the Township of Scotch Plains, the litigants
agreed that a facility with numerous assisted living beds
"qualifies as a 'dwelling' within the meaning of the [Fair
Housing Act]'".46 The Sixth Circuit has placed assisted living
facilities under the coverage of the Fair Housing Act, saying
that the Act applies to all housing options for persons
with disabilities, which includes assisted living facilities.47
The District Court for the Eastern District of New York,
deciding a case involving an assisted living provider's challenge
to a city's zoning ordinance, noted that there was no
"dispute that [the Fair Housing Act applies] to the facts presented
in the instant action."48 Finally, the Department of
Justice has brought several fair housing cases against assisted
living facilities where the designation of an assisted living
facility as a dwelling was not challenged.49
Since many states have directly incorporated the language
of the federal Fair Housing Act into their own state fair
housing laws, state courts have chosen to adopt federal
authority as persuasive when interpreting their own fair housing
laws.50 As a result, the approach taken by federal courts
would apply to an analysis of the applicability of state fair
housing laws to assisted living facilities.

Individual State Assisted Living Laws That
Have Adopted Fair Housing Language

Unlike the widespread adoption of general fair housing laws
by the states, less than 25 percent of states have incorporated
fair housing language in their assisted living statutes and
administrative rules. Only 10 states51 have incorporated fair
housing language into, or referenced fair housing law in, their
assisted living statutes and administrative rules. Of those,
four states52 have incorporated fair housing language into
their general statutes, while seven states53 have incorporated
the language into their administrative rules (Washington has
referred to fair housing laws in both its general statutes and
administrative rules). These state laws have taken one of two
approaches. They have either adopted provisions generally
prohibiting discrimination on the basis of disability, or specifically
mentioned or referenced reasonable accommodation
language in their law. No state has incorporated or made reference
to the prohibition against inquiring into the nature or
extent of a disability into their assisted living regulations.
General Prohibition Against Discrimination
The degree to which each state references fair housing law
differs considerably. Of the 10 states that have incorporated
or referenced fair housing laws in their assisted living regulations,
five states generally prohibit discrimination on the
basis of disability.54
Texas and Wisconsin go farther by referencing fair housing
laws in their assisted living regulations. Wisconsin's regulation
directly references the Fair Housing Act with regard
to the prohibition of discrimination, and is the clearest of the
five states in applying fair housing law to their assisted living
facilities. Wisconsin's regulations state that "the licensee [of
an assisted living facility] shall protect the civil rights of residents
as these rights are defined in … Title VIII of the Civil
Rights Act of 1968 [Fair Housing Act] … the Fair Housing
Amendments Act of 1988 … and all other relevant federal
and state statutes."55 Texas specifically mentions the Fair
Housing Act, but only in reference to a potential area of training
for facility managers.56 Alabama, along with Louisiana,
says that facilities "must meet the applicable provisions of
federal law … pertaining to nondiscrimination on the basis of
… handicap."57

Reasonable Accommodation Language

The remaining five states that address fair housing in the context
of assisted living facilities refer to or incorporate reasonable
accommodation language into their laws and
regulations.58 Only Rhode Island mentions the Fair Housing
Act by name, saying that "residents are entitled to all rights
recognized by state and federal law with respect to discrimination
… [including] … [having] a service animal, consistent
with the 'reasonable accommodations' clause of the Fair
Housing Act."59 A second approach, taken by Washington
and Delaware, is to mention the need to provide "reasonable
accommodations," and relating the definition back to the definition
found in federal law. Washington's statute is typical of
this approach, mandating that "if a boarding home60 licensee
chooses to provide assistance with activities of daily living,
the licensee shall provide at least the minimal level of assistance
for all activities of daily living consistent with … the
reasonable accommodation requirements in state or federal
laws."61
New Hampshire and Maine do not reference federal or
state law when requiring reasonable accommodations, but
they attach a condition similar to conditions contained in federal
law. Maine's regulation is typical, stating that a provider
must make reasonable accommodations in "regulations, policies,
practices or services" when requested unless "the
accommodation … imposes an undue financial burden or
results in a fundamental change in the program."62
Lack of Awareness of Fair Housing Rights
According to a 2005 survey by the U.S. Department of
Housing and Urban Development regarding knowledge of
the protections of the Fair Housing Act, persons over the age
of 65 are the least knowledgeable age group with regard to
their rights under the Fair Housing Act.63 Combined with the
fact that only 58 percent of those with a disability (and only
54 percent of the total population) were aware that a failure
to allow construction of a wheelchair ramp violated the Fair
Housing Act,64 the lack of awareness among older
Americans of the protections and rights afforded to individuals
with disabilities under the Fair Housing Act is a serious
issue.65
With the general lack of awareness, it is reasonable to
conclude that those older individuals who are living in or
seeking admittance to an assisted living facility, currently and
in the future, are not, or will not, be aware of their fair housing
rights. Given that there are currently nearly one million
residents in assisted living facilities across the country,66
almost all of whom would be considered disabled under the
Fair Housing Act, nearly 600,000 residents, or 60 percent of
the assisted living facility population, lack an awareness of
the basic housing rights to which they are entitled under the

Fair Housing Act.

Assisted living providers are often required to inform
assisted living residents of their rights as residents.67
Providers, in turn, know to look to state assisted living
statutes and administrative rules to determine their legal obligations
and the rights of the residents in their care. However,
state assisted living law is generally silent regarding the
application of fair housing laws and rights to assisted living
facilities. One result is that assisted living providers are
"oblivious to the mandates of [the Fair Housing Act]."68
Given this ignorance of the law, providers are unable to pass
this important information along to their residents and residents'
families.
The silence of state statutes and administrative rules that
hinders effective notification by assisted living providers also
hinders elder rights advocates' ability to educate residents.
Advocates put out informational materials listing a resident's
rights based on the rights listed in state statutes and administrative
rules. A result of the failure by states to adequately
incorporate fair housing language in their assisted living
statutes and administrative rules is that literature published
by advocates to educate residents of their rights is lacking in
this important regard.69
Another result of this failure to incorporate fair housing
rights in state assisted living law is that residents are unable
to educate themselves, and providers and advocates are
unable to educate residents, of the rights and protections
granted by the Fair Housing Act.
Recommendations
Residents, providers, and advocates know to turn to state
assisted living statutes and administrative rules for their legal
rights and duties. Therefore, these laws should be used as one
vehicle to remedy the lack of awareness of residents,
providers, and advocates of the applicability and rights of the
Fair Housing Act.70 Based, in part, on recommendations
from various fair housing and elder law advocates,71 this
paper advocates adopting a four-pronged approach in state
assisted living laws to better educate residents, providers, and
advocates: (a) incorporate fair housing law provisions into
assisted living licensing requirements; (b) include details of
the fair housing law in the residents' rights section; (c) notification
of a resident's rights, including rights under the Fair
Housing Act, at admission; (d) administrator and staff training
on residents' rights.
Prior to opening a facility, providers must comply with a
specific set of guidelines and responsibilities in order to
obtain and retain a license to operate an assisted living facility.
72 These include requiring assisted living licensees to
abide by relevant state law related to the operation of assisted
living facilities,73 or requiring the licensee to develop relevant
facility policies subject to review before a license is
issued.74 In order to better ensure compliance with fair housing
laws, these licensing regulations should include two additional
provisions. First, based on Washington's licensee
responsibility regulation,75 licensees should be required to
"comply with all requirements of these regulations, [the
assisted living laws in the state code], and all other applicable
federal and state law, including but not limited to … federal
and state fair housing law." Second, based on Maine's
licensing regulations,76 an assisted living facility licensee
should "be required to develop a written admission policy,
residents' rights sheet, and request form for application for a
reasonable accommodation to be submitted with the application
for a license."
State assisted living regulations contain a list of specific
rights that each resident is entitled to exercise.77 Often found
in their rights is a mandate that residents be free from discrimination
on the basis of disability in accordance with federal
law,78 but fail to mention the Fair Housing Act by name.
In order to better inform residents of assisted living facilities
and their families of the applicability of the rights and pro-tections
of the Fair Housing Act, states should adopt Fair
Housing Act provisions as a separate right. This paper recommends
that this language should state that "residents are
entitled to all rights under the federal Fair Housing Act and
Fair Housing Amendments Act, including but not limited to:
(1) reasonable accommodations, (2) reasonable modifications,
and (3) protection from prohibited inquiries."
Additionally, this paper recommends that the statute use specific
language from the Fair Housing Act.79 Adding this language
would make it clear to residents, their families,
providers, and advocates that the Fair Housing Act, and the
rights and prohibitions they provide, apply to assisted living
facilities.
In addition to enumerating a specific list of rights, such
as fair housing rights in a state's assisted living statutes and
administrative rules, states should also mandate that facilities
provide residents with a copy and explanation of their rights,
including fair housing rights, as listed in the state's assisted
living statutes and administrative rules, during the admissions
process. This could be done two ways: (a) by referencing
the information in the resident's contract and (b) by
providing the resident with a copy of their rights.
Pennsylvania's law is a good model to use. Their regulations
mandate that: (a) residents be informed of their rights verbally
and in writing in a way that is understandable to the resident;
(b) the resident's rights must be posted in a conspicuous
place; (c) and the residents must sign a statement acknowledging
the receipt of their rights.80 Following this approach
ensures that residents have multiple avenues of access to
information about their rights when they are concerned that
they have been a victim of housing discrimination.
In addition to providing a copy of their rights to residents
at admission, residency contracts should reference the resident's
rights as defined in state law. The model approach is
that taken by Pennsylvania. Pennsylvania's assisted living
regulations require contracts to contain "written information
on the resident's rights and complaint procedures as specified
in [the resident's rights section of the regulations]."81 This
approach provides further notification of the legal rights and
obligations of both parties to the residency contract.
Finally, facility staff may be educated through training.
Administrator and staff training, including training on residents'
rights, is often mandated as a licensing requirement.82
To ensure that all facility administrators and staff are aware
of the protections and rights afforded residents by the Fair
Housing Act, training on residents' rights should specifically
address fair housing rights as enumerated in the residents'
right section of state law. Using Pennsylvania regulations as
a basic model, which requires staff training on residents'
rights,83 states should adopt language that reads in part:
"prior to or during their first work day at the facility, all facility
administrators, staff, and volunteers shall be trained in the
following areas … residents' rights as found in [the Residents
Rights section], including their rights under the Fair Housing
Act … and all other applicable federal law."
The immediate ramifications of adding fair housing language
would be to assist residents and their advocates in
identifying those situations where residents are subjected to
housing discrimination, and successfully advocate for themselves
and exercise their rights. Additionally, providers will
become more aware of their responsibilities under the Fair
Housing Act, and may develop forms to be given to residents
along with a copy of their rights, for residents to use when
requesting a reasonable accommodation.
For example, a person may be living in an assisted living
facility that has a no-pet policy. In response to new mental
health behaviors, the facility is considering asking her to
leave. Her psychiatrist has prescribed a service animal for
her, which the psychiatrist believes will help alleviate the
new behaviors. Because of the no-pet policy, the person may
believe that her only option would be to move. But a resident
who has received notice from her provider about her fair
housing rights, and has been educated on these fair housing
rights, would be able to ask the facility to waive the no-pet
policy as a reasonable accommodation under the Fair
Housing Act. This would allow her to stay in her current
home.
A second example is where a person is living in a facility
that requires residents to transfer to dining room chairs
from their wheelchairs in order to use the dining room. As a
result of an increasing inability to transfer from his
wheelchair to a dining room chair, a resident may be unable
to use and enjoy a facility's dining room. Aresident who was
aware of his fair housing rights could ask the facility to waive
its policy as a reasonable accommodation in order to allow
him an equal opportunity to continue to use and enjoy the
entire facility along with the other residents.
Litigation may result if a provider fails to provide the
reasonable accommodation or makes a prohibited inquiry,
but the real result will be residents who are able to exercise
their rights by asking for reasonable accommodations at the
facility level, providers who are knowledgeable about their
responsibilities under the Fair Housing Act, thus, making litigation
less likely or unnecessary.

Conclusion

This review of state fair housing and state assisted living
facility laws found that although almost every state has enacted
some sort of fair housing law, very few states have adopted
fair housing language directly into their assisted living
laws and regulations. Although 4784 states have adopted
some form of fair housing law, only 1185 states have incorporated
or referenced either federal or state fair housing law
into their assisted living facility regulations. In addition,
while most states have adopted federal language in both the
"reasonable accommodation" and "prohibited inquiry" contexts
in their states' fair housing law, this same level of clarity
is not found in assisted living regulations.
While the language pertaining to "reasonable accommodations"
is nearly universally found in state fair housing laws,
only six states86 mention the reasonable accommodation
requirement in their assisted living laws. Additionally,
although only 17 states87 have specifically adopted the prohibition
on certain inquiries into their state law, no state has
incorporated such language into their assisted living facility
laws. One result of the failure of states to adequately describe
the fair housing rights of assisted living residents in assisted
living laws is that residents have little guidance as to what
their rights are and how to exercise those rights for their benefit.
This review of various state laws was undertaken to
determine the degree to which consumers of assisted living
services, which are regulated solely by the states without any
additional regulation from the federal government, would be
informed of their right to reasonable accommodation and noinquiry
protection in assisted living facilities. This paper
finds, based on its survey of state assisted living statutes and
administrative rules, that consumers and providers reading
their state's assisted living statutes would be ill-informed as
to the applicability and rights granted under the Fair Housing
Act. The best way to educate assisted living residents and
their families, providers, and advocates is to encourage states
to amend the residents' rights section of their assisted living
statutes and administrative rules to specifically include federal
Fair Housing Act language and to require providers to notify
residents of these rights. Providing this information in
the same statutes and rules where people look to understand
an assisted living provider's responsibilities will help educate
residents and their families, providers, and advocates;
help avoid costly litigation between residents and providers;
and allow residents to remain in the facility they call "home."