Amicus Curiae Brief — City of Edmonds v. Oxford House, Inc.

__ Waseincron STATE BurLpiInc Cope CounciL

‘and UNITED STATES OF AMERICA,

TABLE OF CONTENTS

SERED GF ECE TED cectecnererenecerenersencsscesemerrnemees

STATEMENT OF INTEREST OF AMICUS CURIAE..

STATEMENT OF THE CASE ....00...22.......:..:cecsceecseceesees

SUMMARY OF THE ARGUMENT .......0000 eee

SII, sterttrerencercctcesstnnsnteiccenpecimianantutmmencentetmnnqeccmess

I.

Il,

ITT.

CONCLUSION ............

ITT cciscienststanseetipetanenenessiemeneinaninnmnences

THE REMEDIAL PURPOSES OF THE FHAA

AND SOUND PUBLIC POLICY REQUIRE A

BROAD INTERPRETATION OF THE PRO-

TECTIONS PROVIDED AND A NARROW

CONSTRUCTION OF THE MAXIMUM OC-

CUPANCY LIMITATION EXEMPTION .........

A. Board And Care Homes Provide Much-

Needed Residential Services To Older Per-

sons With A Range Of Disabilities ................

B. Board And Care Homes Are A Vital Com-

ponent Of The Continuum Of Care Necessary

To Meet The Needs Of Older Persons With

EE ST SEALE TOG

THE DEMAND FOR BOARD AND CARE

TYPE SETTINGS WILL CONTINUE TO IN-

CREASE BECAUSE THEY ARE MORE ECO-

NOMICAL THAN NURSING HOMES AND

THE NUMBER OF OLDER PERSONS WHO

CANNOT FUNCTION INDEPENDENTLY IS

GROWING DRAMATICALLY ...........00......0....-.--

Page

10

ii

TABLE OF AUTHORITIES

Cases Page

Casa Marie, Inc. v. Superior Court of P.R., 752

F. Supp. 1152 (D.P.R. 1990), vacated, 988 F.2d

BEB (EGG Car, BED cnccctmscunthislccinesiontiaean 2

City of Edmonds v. Washington State Bldg. Coun-

cil, 18 F.8d 802 (9th Cir. 1994) ...000002 2. 5, 6,7

Elliott v. City of Athens, 960 F.2d 975 (11th Cir.

REFIIED . -conceseccesecssesteteniaisiasadeiademismamasan 6, 7,8

Massaro v. Mainlands Section 1 & 2 Civic Ass’n, 3

Pe P's, Rol: Le | em 7

Potomac Group Home Corp. v. Montgomery

County, Md., 823 F. Supp. 1285 (D. Md. 1998).. 2,11

Trafficante v. Metropolitan Life Ins. Co., 409 U.S.

BOG CED TIRD corccocenscsccnditccciecssteinenaamaaieananennas 7

United States v. City of Taylor, 798 F. Supp. 442

(E.D. Mich. 1992), rev’d sub nom., Smith & Lee

Assocs., Inc. v. City of Taylor, Mich., 18 F.3d

os RE wd 2

United States v. Columbus Country Club, 915 F.2d

877 (3d Cir. 1990), cert. denied, 501 U.S. 1205

Statutes

CRBDE) ccrcaceccscstneosesnasedesemmmecmanitmuianaasanaananennn 7

Wolford by Mackey v. Lewis, 860 F. Supp. 1123

(B.D. We Vas BEDE) cuscicssameienee 3

Edmonds Community Development Code

pt SL ff nena A 5

Edmonds Community Development | Code

fF kN | RS op EE MT nF 5

Edmonds Community Development Code

§ 21.30.010 ecmesiemaiigitiasssladeadiata 5

42 U.S.C. § 1882 (a) (3B) (10BB) nnn ceceecenee 14

42 U.S.C. § 1882c(a) (3) (A) (1988) 00. 14

42 U.S.C. § 3602(h) (1988) 2 5

42 U.S.C. § 3604(f) (1) (1988) 2000. 5

42 U.S.C. § 3604 (f) (8) (B) (1988) 2.0... 5

42 U.S.C. § 3607(b) (1) (1988) : a 5

42 U.S.C. § 12102 (Supp. V 1993) 5

iii

TABLE OF AUTHORITIES—Continued

Other Authorities Page

Alzheimer’s Disease and Related Disorders Asso-

ciation Inc., Alzheimer’s Disease Statistics

LT Ce 12

Chairman, Subcomm. on Health and Long-Term

Care, House Select Comm. on Aging, 101st

Cong., 1st Sess. Board and Care Homes in

America: A National Tragedy (Comm. Print

EEE 9,10, 13, 14

Alexander Chen, The Cost of Operation in Board

and Care Homes, in Preserving Independence,

Supporting Needs: The Role of Board and Care

Homes 61 (Marilyn Moon et al. eds., 1987)... 9

Coopers & Lybrand, An Overview of the Assisted

Living Industry (1998) .................--.<..ccc<-c0cee0--e: 14

Nancy D. Dittmar, Facility and Resident Charac-

teristics of Board and Care Homes for the

Elderly, in Preserving Independence, Supporting

Needs: The Role of Board and Care Homes 1

(Marilyn Moon et al. eds., 1987) .................. 8, 10, 13, 14

Judith Feder, et al., Board and Care: Problem or

Solution?, in Preserving Independence, Support-

ing Needs: The Role of Board and Cure Homes

27 (Marilyn Moon et al. eds., 1987) 14

Arthur E. Gimmy & Michael G. Boehm, Elderly

Housing: A Guide to Appraisal, Market Analy-

is, Development and Financing (1988) ............ 11

Bonnie Sether Hasler, Barriers to Living Inde-

| pendently for Older Women with Disabilities:

Housing (Patricia Forsythe & Laurel Beedon

EEE ee 10

Catherine Hawes et al., The Regulation of Board

and Care Homes: Results of A Survey in the 50

States and the District of Columbia (1993) ........ 3, 8, 9,

10, 13, 14

H.R. Rep. No. 100-711, 100th Cong., 2d Sess.

(1988), reprinted in 1988 U.S.C.C.A.N. 2173... 6,7

iv

TABLE OF AUTHORITIES—Continued

Rosalie A. Kane et al., Adult Foster Care for the

Elderly in Oregon: A Mainstream Alternative

to Nursing Homes?, 81 Am. J. Pub. Health 1113

EER cen a

Robert Katzman & J. Edward Jackson, Alzheimer’s

Disease: Basic and Clinicai Advances, 39 J. Am.

Geriatrics Soc’y 516 (1991) 00

Mary Jane Koren, Site-Specific Care, in The Merck

Manual of Geriatrics 199 (William B. Abrams,

M.D. & Robert Berkow, M.D. eds., 1990)

Medical Care and Research Foundation, Proving

New Directions, New Hope in Board and Care:

Practical Guidelines for Esiablishing and Oper-

ating Small Assisted Living Facilities for the

AS aS ee

Chandra M.N. Mehrotra & Karl Kosloski, Foster

Care for Older Adults: Issues and Evaluations,

12 Home Health Care Servs. Q. 115 (1991)...

Vincent Mor et al., A National Study of Residen-

tial Care for the Aged, 26 Gerontologist 405

TTC AES Ra ae ee! 2 Sie e RE

Sandra Newman, The Bounds of Success: What is

Quality in Board and Care Homes?, in Pre-

serving Independence, Supporting Needs 109

(Marilyn Moon et al. eds., 1987) 000

U.S. Senate Special Comm. on Aging et al., Aging

Page

11,12

12

9,10

11

9

America: Trends and Projections (1991 ed.) ....9, 15, 16

Terrie Wetle, Social Issues, in The Merck Manual

of Geriatrics 1127 (William B. Abrams, M.D. &

Robert Berkow, M.D. eds., 1990)

Sheila R. Zedlewski et al., The Needs of the Elderly

in the 21st Century (1989) —. 0... 15, 16,

11

17, 18

IN THE

Supreme Court of the United States

OcTOBER TERM, 1994

No. 94-23

City OF EDMONDS,

. Petitioner,

WASHINGTON STATE BUILDING Cope COUNCIL

and UNITED STATES OF AMERICA,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

AMICUS CURIAE BRIEF OF THE

AMERICAN ASSOCIATION OF RETIRED PERSONS

IN SUPPORT OF RESPONDENTS

STATEMENT OF INTEREST OF AMICUS CURIAE

The American Association of Retired Persons

(“AARP”) is a not-for-profit membership organization of

more than thirty-three million persons aged 50 and older.

In representing the interests of its members, AARP seeks

to (a) enhance the quality of life for older persons; (b)

promote independence, dignity, and purpose for older per-

sons; (c) advance the role and place of older persons in

society; (d) sponsor research on physical, psychological,

social, economic, and other aspects of aging; and (e)

support the expansion of quality, well-managed and ac-

cessible housing options for older persons.

2

AARP’s membership includes many older persons with

disabilities, and the Association supports their right to

equal choice in housing. Accordingly, the Association

advocated for the provisions of the Fair Housing Amend-

ments Act of 1988 extending equal housing opportunities

to persons with disabilities and prohibiting unreasonable

exclusionary local land-use laws and ordinances.

Exclusionary zoning and land-use laws often limit hous-

ing opportunities for older persons with disabilities.’ This

case involves the application of a zoning ordinance to a

group home for persons with disabilities related to previ-

ous alcohol and drug dependencies, but the legal prin-

ciples established will likewise affect group living arrange-

ments for older persons with a range of other disabilities.

The threat of exclusion from community life because of

unreasonable zoning restrictions is real to the many older

Americans now living in non-institutional group settings.

Although the overwhelming majority of older persons want

to live independently, either by themselves, with family,

or with assistance from professional caretakers provided

in their homes, health or financial problems sometimes

force them into other arrangements.

A wide variety of group living arrangements exists for

older persons with disabilities. A growing number of such

people live in group living arrangements sometimes re-

ferred to as board and care homes. These homes provide

1 See, e.g., Casa Marie, Inc. v. Superior Court of P.R., 752

F. Supp. 1152 (D.P.R. 1990), vacated, 988 F.2d 252 (1st Cir. 1993)

(zoning ordinance and restrictive covenant used to challenge facil-

ity for older mostly handicapped persons); Potomac Group Home

Corp. v. Montgomery County, Md., 823 F. Supp. 1285 (D. Md. 1993)

(elderly group home residents with Alzheimer’s disease threatened

with eviction because of group home provider's failure to give

neighbors notification as required by county licensure law) ; United

States v. City of Taylor, 798 F. Supp. 442 (E.D. Mich. 1992), rev'd

sub nom., Smith & Lee Assocs., Inc. v. City of Taylor, Mich., 13

F.3d 920 (6th Cir. 1993) (city ordinance defined family to exclude

elderly and disabled residents of a group home).

3

shelter, food, personal care, and 24-hour protective over-

sight in single-family dwellings in residential neighbor-

hoods. The identical living arrangement is sometimes

referred to by many other names, e.g., assisted living

facilities. In order to simplify the discussion, this brief

uses the term board and care home.

AARP acknowledges the right of state and local gov-

ernments to restrict land use, so long as the restrictions

do not result in unlawful discrimination. In some cases,

though, even facially neutral land-use restrictions result

in discriminatory treatment. Older persons have too large

a stake in preserving equal access to housing to let such

restrictions go unchallenged. AARP submits this brief as

amicus curiae to inform the Court of a dimension to this

case not immediately apparent from the facts—the large,

and growing, numbers of older persons with disabilities

who are no longer able to live independently and their

need for a variety of housing options.*

STATEMENT OF THE CASE

AARP adopts the Respondents’ Oxford House, Inc. et

al. statement of the case.

2 A recent survey found that states license board and care homes

under more than 25 different names. Catherine Hawes et al., The

Regulation of Board and Care Homes: Results of A Survey in the

50 States and the District of Columbia i (1993). Some common

names are domiciliary care homes, personal care homes, community

residence facilities, group homes, assisted living facilities, adult

foster care homes, and residential care facilities. See, e.g., Wolford

by Mackey v. Lewis, 860 F. Supp. 1123, 1126 n.2 (S.D. W. Va.

1994) for a description of one state’s regulation of “residential

board and care” and “personal care homes.” Use of these terms

varies not only from state to state, but also within a state and by

the nature of the client population served. Vincent Mor et al., A

National Study of Residential Care for the Aged, 26 Gerontologist

405, 405 (1986).

% The written consents of the parties have been filed with the

Clerk of the Court pursuant to Sup. Ct. R. 37.3.

A

4

SUMMARY OF THE ARGUMENT

A broad construction of the Fair Housing Amendments

Act (FHAA) requires a narrow interpretation of the ex-

emption for maximum occupancy rules. Such a reading

is necessary to effectuate the purposes of the FHAA. It

also is sound policy to limit unreasonably restrictive zon-

ing ordinances because a continuum of housing options is

necessary to fulfill the financial and social needs of board

and care residents. Board and care homes are best defined

by the functions they perform, i.e., providing room, board,

personal care, and protective oversight on a 24-hour basis

to four or more unrelated adults. Board and care home

residents have disabilities that necessitate assistance with

the activities of daily living and taking medications.

Although estimates vary, more than a million persons

live in board and care homes. At least half of board and

care residents have private sources of income and the

other half are publicly funded through the Supplemental

Security Income (SSI) program. Board and care is a

growth industry because of its low cost and the growing

number of older persons with disabilities. Board and care

residents are handicapped persons for purposes of the

Fair Housing Amendments Act, and the growing number

of older persons with disabilities and their need for resi-

dential community-based arrangements should inform the

Court’s interpretation of the FHAA’s exemptions. Pro-

jected population trends show just how great the need

will be for non-institutional group living arrangements.

5

ARGUMENT

I. INTRODUCTION,

The Fair Housing Amendments Act (FHAA) prohibits

discrimination against handicapped persons in housing

practices. 42 U.S.C. $§ 3604(f)(1), (£)(3)(B) (1988).

The FHAA also contains an exemption that provides:

“Nothing in this subchapter limits the applicability of any

reasonable local, State, or Federal restrictions regarding

the maximum number of occupants permitted to occupy

a dwelling... .” 42 U.S.C. § 3607(b)(1) (1988).

The Oxford House is located in Edmonds, Washington,

and is a group home for six or more persons recovering

from drug and alcohol dependencies. The residents qual-

ify as handicapped persons by virtue of their participation

in a supervised drug rehabilitation program, coupled with

their non-use of drugs and alcohol. City of Edmonds v.

Washington State Bldg. Council, 18 F.3d 802, 804 (9th

Cir. 1994). Oxford House is located in a neighborhood

zoned for single family dwellings, Edmonds Community

Development Code § 16.20.000 et seq., and these dwellings

are the only permitted primary uses. /d. at § 16.20.010

(A)(1). “Family means an individual or two or more

persons related by genetics, adoption, or marriage, or a

group of five or fewer persons who are not related by

genetics, adoption or marriage... .” Jd. at § 21.30.010.

If the Code proscription against more than five unrelated

persons living together qualifies as a maximum occupancy

limitation, Oxford House cannot locate in an area zoned

for single family dwellings in Edmonds.

AARP agrees with the legal arguments of the United

States and other Respondents that the City of Edmonds’

ordinance does not qualify for the Fair Housing Amend-

*The terms handicapped persons and persons with disabilities

are used synonymously in this brief, as they are in federal statutes.

Compare the use of the term handicap in the FHAA definitions at

42 U.S.C. § 3602(h) (1988) with the term disability in the Ameri-

cans with Disabilities Act at 42 U.S.C. § 12102 (Supp. V 1993).

6

ments Act exemption as a maximum occupancy limitation,

and that this Court should uphold the Ninth Circuit's de-

cision in City of Edmonds vy. Washington State Bldg.

Council, 18 F.3d 802 (9th Cir. 1994), rather than the

decision in Elliott v. City of Athens, 960 F.2d 975 (11th

Cir. 1992).

AARP will emphasize that the remedial purposes of the

FHAA require a narrow interpretation of the occupancy

limitation exemption; that group homes play a vital role

in the continuum of housing for older persons with dis-

abilities; and that stifling the growth of group homes is

unwise because of projected increases in the numbers of

older persons with disabilities.

Il. THE REMEDIAL PURPOSES OF THE FHAA AND

SOUND PUBLIC POLICY REQUIRE A BROAD

INTERPRETATION OF THE PROTECTIONS PRO-

VIDED AND A NARROW CONSTRUCTION OF

THE MAXIMUM OCCUPANCY LIMITATION

EXEMPTION.

Discriminatory housing practices such as the exclusion-

ary zoning ordinance in this case prompted Congress to

pass the Fair Housing Amendments Act of 1988. One

purpose of the FHAA was to extend the principle of equal

housing opportunity to handicapped persons because “like

the other classes protected by title VIII [handicapped per-

sons] have been the victims of unfair and discriminatory

housing practices.” H.R. Rep. No. 100-711, 100th Cong.,

2d Sess. 13 (1988), reprinted in 1988 U.S.C.C.A.N. 2173,

2174. Congress expressly recognized that exclusion from

equal housing opportunity is a by-product of stereotyping

persons with disabilities. “The Fair Housing Amendments

Act, like Section 504 of the Rehabilitation Act of 1973

. is a clear pronouncement of a national commitment

to end the unnecessary exclusion of persons with handi-

caps from the American mainstream. . . . Generalized

perceptions about disabilities and unfounded speculations

7

about threats to safety are specifically rejected as grounds

to justify exclusion.” 7d. at 18; 1988 U.S.C.C.A.N. at

2179. Congress also recognized that land-use regulations

have been used to discriminate against persons with dis-

abilities and the Fair Housing Amendments Act was de-

signed to end those practices.

The FHAA was enacted to protect against the very

type of ordinance Edmonds has adopted—trules that single

out subgroups to be regulated under the guise of health

and safety. The House Judiciary Committee Report ex-

presses this best:

While state and local governments have authority to

protect safety and health . . . that authority has

sometimes been used to restrict the ability of indi-

viduals with handicaps to live in communities. (cita-

tion omitted) This has been accomplished by such

means as the enactment or imposition of health,

safety or land-use requirements on congregate living

arrangements among non-related persons with dis-

abilities. Since these requirements are not imposed

on families . . . these requirements have the effect

of discriminating against persons with disabilities.

Id. at 24; 1988 U.S.C.C.A.N. at 2185.

As a remedial statute, the FHAA’s provisions should

be afforded a broad construction. Trafficante v. Metro-

politan Life Ins. Co., 409 U.S. 205, 212 (1972). A broad

construction of the FHAA requires that the exemptions

from the protections contained in the statute be con-

strued narrowly to effectuate the statute’s general pur-

poses. United States v. Columbus Country Club, 915 F.2d

877, 883 (3d Cir. 1990), cert. denied, 501 U.S. 1205

(1991); City of Edmonds, 18 F.3d at 804; Elliott, 960

F.2d at 978-79; Massaro v. Mainlands Section 1 & 2

Civic Ass'n, 3 F.3d 1472, 1475-76 (11th Cir. 1993).

Narrowly construed, the Edmonds ordinance is not an

occupancy limitation at all because the ordinance re-

stricts use rather than occupancy and does not apply

equally to related as well as unrelated persons.

Moreover, an expansive construction of the exemption

leads to an anomalous result—by adopting restrictive zon-

ing ordinances, communities can effectively deny persons

with disabilities, including older persons with disabilities,

equal access to housing. Congress, however, intended

precisely the opposite. The FHAA stemmed from a his-

tory of unequal housing opportunity and, therefore, when,

Congress carved out exemptions from the statute’s cover-

age, it sanctioned only those ordinances which reasonably

restrict occupancy; it did not create a loophole of the

magnitude authorized by Elliott. Elliott is based, in part,

on the idea that if the exemption applies equally to related

and non-related persons, the exemption has little meaning.

Unfortunately, however, if the broad exemption recog-

nized by the Elliott court and the district court below is

upheld, it is the FHAA’s sweeping prohibition of discrim-

ination against persons with disabilities in housing which

is rendered ineffectual.

A. Board And Care Homes Provide Much-Needed

Residential Services To Older Persons With A

Range Of Disabilities.

Board and care homes are best defined by function:

“provid[ing] room, board, personal care, and protective

oversight on a 24-hour basis to four or more adults .. .

who were not related to the facility operator.” Nancy D.

Dittmar, Facility and Resident Characteristics of Board

and Care homes for the Elderly, in Preserving Independ-

ence, Supporting Needs: The Role of Board and Care

Homes at 1, 2 (Marilyn Moon et al. eds., 1987); see

also Chandra M.N. Mehrotra & Karl Kosloski, Foster

Care for Older Adults: Issues and Evaluations, 12 Home

Health Care Servs. Q. 115, 115-16 (1991); Hawes et al.,

supra note 2, at 3. Board and care homes encompass

diverse living environments, but all “seek to serve the

9

nonmedical needs of residents who, because of their dis-

abilities, cannot function independently.” Alexander Chen,

The Cost of Operation in Board and Care Homes, in

Preserving Independence, Supporting Needs: The Role of

Board and Care Homes, supra, at 61, 61.

Residents of board and care homes vary greatly, but

older persons with disabilities constitute a substantial por-

tion of the population of such homes.’ “[The] homes serve

a very mixed group of residents, differentiated by a variety

of characteristics, including age, types of impairments,

and income level. Residents include people whose major

reasons for being in a board and care home are age and

physical frailty, often combined with a dearth of resources

(monetary and familial).” Hawes et al., supra note 2, at

3. One researcher, after reviewing the board and care

literature, concluded that “the typical elderly resident is

a 70-year-old white female who has lived in the home

for about three years and has never been married or is

currently widowed.” Sandra Newman, The Bounds of

Success: What is Quality in Board and Care Homes?, in

Preserving Independence, Supporting Needs, supra, at 109,

112.

The board and care population comes from the 4.4

million people aged 65 and older who experience diffi-

culties in one or more activities of daily living. U.S.

Senate Special Comm. on Aging et al., Aging America:

Trends and Projections 144 (1991 ed.). Activities of

daily living (ADLs) include bathing, ambulating, toilet-

ing, eating, dressing, and grooming. Mary Jane Koren,

Site-Specific Care, in The Merck Manual of Geriatrics

199, 211 (William B. Abrams, M.D. & Robert Berkow,

5 The House Subcommittee identified the major populations as

older persons who used to reside in old age or rest homes and

deinstitutionalized persons with mental illnesses. Chairman, Sub-

comm. on Health and Long-Term Care, House Select Comm. on

Aging, 101st Cong., Ist Sess. Board and Care Homes in America:

A National Tragedy 2-3 (Comm. Print 1989).

10

M.D. eds., 1990). About 17.5 percent of persons 65

and older have deficits in instrumental activities of daily

living (IADLs), activities such as shopping, cleaning,

managing finances, and using the telephone. /d. at 153.

The needs for assistance with ADLs, IADLs, and with

taking medication, are the primary non-economic predi-

cates for group home care. An estimated one million of

these older persons with disabilities® and other persons

with disabilities live in board and care homes. Board and

Care Homes in America: A National Tragedy, supra,

at 9.7

B. Board And Care Homes Are A Vital Component

Of The Continuum Of Care Necessary To Meet The

Needs Of Older Persons With Disabilities.

The care needs of older persons with disabilities are

increasingly diverse. A study of housing barriers faced

by older women noted that mental and physical impair-

ments, themselves, exist on a continuum depending on

the nature and extent of the condition and the person’s

age. Bonnie Sether Hasler, Barriers to Living Independ-

ently for Older Women with Disabilities: Housing 19-21

(Patricia Forsythe & Laurel Beedon eds., 1991). As a

consequence, needs vary from treatment and rehabilita-

tion, to maintenance of the individual’s highest possible

quality of life, to reducing the effects of the disability.

Providers must offer the services most appropriate for each

client. /d.

®*Older persons with ADL problems sometimes are referred to

as the “frail elderly,” particularly in research literature.

7 As with all housing options, the quality of board and care homes

varies. The House Subcommittee focused on board and care homes

serving the poorest residents and found many problems. Board

and Care Homes in America: A National Tragedy, supra, passim.

Other observers of the same types of homes have not described the

homes so negatively. See Dittmar, supra, at 3; Hawes et al., supra

note 2, at 76.

11

Preservation and enlargement of available housing

choices promote a better match between clients and the

type of care they receive and will have a positive impact

on the quality of life of older adults. The range of hous-

ing options for older persons extends from simple

shelter for the most independent to skilled nursing facili-

ties that provide a nearly total life support system for the

frailest of older persons. Arthur E. Gimmy & Michael G.

Boehm, Elderly Housing: A Guide to Appraisal, Market

Analysis, Development and Financing 19 (1988). Board

and care falls between the extremes of independent living

and the total care environment of an institution.

A continuum of care permits the frequency and inten-

sity of necessary care to dictate which option is most

appropriate for each individual.” This continuum enables

older persons to live in the “least restrictive environment

with the greatest amount of privacy for as long as possible.

Loss of independence need not lead to permanent loss of

self-esteem or loss of power to exercise competent choices

and decisions in one’s own life.” Medical Care and Re-

search Foundation, Proving New Directions, New Hope

in Board and Care: Practical Guidelines for Establishing

and Operating Small Assisted Living Facilities for the

Elderly 3 (1988). 7

Board and care contributes a vital component on the

continuum of care available to both older and younger

persons with disabilities. One of the attractive features of

board and care is that residents are able to benefit from

more home-like settings in residential neighborhoods.

Rosalie A. Kane et al., Adult Foster Care for the Elderly

in Oregon: A Mainstream Alternative to Nursing Homes?,

81 Am. J. Pub. Health 1113, 1113 (1991). Group homes

provide older persons with “the opportunity to live in

home-like milieus instead of . . . more institutionalized

8 The term continuum of care is commonly used to describe the

concept of matching services to needs. See, e.g., Terrie Wetle,

Social Issues, in The Merck Manual of Geriatrics, supra, at 1127,

1129-32.

12

nursing homes” and prevent “premature institutionaliza-

tion.” Potomac Group Home Corp. v. Montgomery

County, Md., 823 F. Supp. at 1289. Some clients require

the socially-oriented care setting of community residence

for health reasons. Others simply prefer to obtain needed

services in that setting. Kane, supra, at 1117-19.

Older persons with Alzheimer’s disease illustrate the

need for board and care type settings. According to the

Alzheimer’s Disease and Related Disorders Association

(ADRDA), more than four million Americans have

Alzheimer’s disease. Alzheimer’s Disease and Related Dis-

orders Association Inc., Alzheimer’s Disease Statistics

[ADRDA Factsheet] (1993) (On file at AARP). Nearly

10 percent of this country’s population over age 65 has

Alzheimer’s disease. /d.

Alzheimer’s disease is a progressive, degenerative di-

sease that attacks the brain and results in impaired mem-

ory, thinking, and behavior. The person with Alzheimer’s

disease may experience confusion, changes in personality

and behavior, impaired judgment, and difficulty finding

words, finishing thoughts, or following even simple di-

rections. In short, the disease causes precisely the types

of impairments which produce the need for assistance with

activities of daily living.

Life expectancy from the onset of Alzheimer’s symp-

toms varies from three to more than twenty years, but

the individual variations are striking. The decline may

be quick, with the full range of cognitive deterioration

occurring in one year, or the person may plateau at a

level of impairment for several years. Robert Katzman

& J. Edward Jackson, Alzheimer’s Disease: Basic and

Clinical Advances, 39 J. Am. Geriatrics Soc’y 516, 520

(1991). In any case, the housing needs for persons with

Alzheimer’s disease correlate to their degree of dementia.

Many physically healthy persons with Alzheimer’s disease

or related dementias can live nicely in a community setting

with assistance and supervision, at least during the early

13

and middle stages of the disease. In the later stages, when

total care is needed, a nursing home looms as the only

alternative.

As the Alzheimer’s example illustrates, board and care

kinds of settings will not replace nursing home care, but

will contribute a vital component on the continuum of

care necessary to meet the needs of older persons. Yet

these much-needed group homes for all kinds of persons

with disabilities will not be available if local jurisdictions

can limit occupancy to small numbers of unrelated per-

sons like the City of Edmonds has done.

Ill. THE DEMAND FOR BOARD AND CARE TYPE

SETTINGS WILL CONTINUE TO INCREASE BE-

CAUSE THEY ARE MORE ECONOMICAL THAN

NURSING HOMES AND THE NUMBER OF OLDER

PERSONS WHO CANNOT FUNCTION INDEPEND-

ENTLY IS GROWING DRAMATICALLY.

It is widely acknowledged that board and care is a

growth industry. A Congressional Subcommittee predicted

continued rapid growth for several reasons: the relatively

low cost of board and care compared to nursing home

care or care provided in mental hospitals, and the con-

tinued growth of the frail elderly population. Board and

Care Homes in America: A National Tragedy, supra, at

11-12. According to surveys, “among the elderly residing

in board and care homes, about half the residents pay

for their care with private resources.” Hawes et al., supra

note 2, at ©*.” The other half are SSI recipients."° Hawes

* SSI is the primary public funding source. In one survey, the

reported sources of income were SSI (51.3 percent), Social Security

Disability and regular Social Security benefits (50.8 percent), social

services benefits (18.9 percent), private retirement, investment, or

savings income (12 percent), earned income (10.7 percent), family

contributions (8.5 percent), and Veterans Administration benefits

(7.7 percent). Dittmar, supra, at 14.

“SSI, Title XVI of the Social Security Act, provides income

support to persons aged 65 or older, blind or disabled adults and

blind or disabled children, based on need. Disabled means any person

14

et al., supra note 2, at 54; Judith Feder et al., Board and

Care: Problem or Solution?, in Preserving Independence,

Supporting Needs, supra, at 27, 29. For the board and

care residents who are SSI recipients, the costs of care

will mirror the SSI benefit level. Dittmar, supra, at 14;

Hawes et al., supra, at 57. The result is a cost efficient

care model when compared to institutionalization."

A trade association, the Assis‘ed Living Facilities Asso-

ciation of America, concurs that the need for assisted

living—another name for some kinds of board and care

homes—will grow. The “unique combination of housing,

personalized assistance, supportive services and health care

will be in greater demand as more . . . families seek com-

passionate, low cost care in noninstitutional environments.

As advocates for the elderly focus more attention on this

long-term care option, it will grow in recognition, avail-

ability and acceptance.” Coopers & Lybrand, An Over-

view of the Assisted Living Industry 22 (1993).”

unable to engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment expected

to result in death or that has lasted or can be expected to last for a

continuous period of at least 12 months. 42 U.S.C. § 1382c(a)

(3) (A) (1988). Individuals are ineligible for SSI if they have

resources in excess of $2,000. 42 U.S.C. § 1382(a) (3) (1988). The

SSI payment is based on countable income, but an applicant must

have little or no income to become eligible. The 1995 Federal

monthly benefit rate for an individual is $458. Thirty-five percent

yo ag sa 6 million SSI recipients in 1994 were aged 65 or

older.

™ The House Subcommittee reported the average per person cost

for board and care to be $7,000 per year compared to $25,000 for a

nursing home placement (1988 average) and $41,131 for a mental

hospital (1987 average). Board and Care Homes in America: A

National Tragedy, supra, at 11-12.

"2 Among the factors supporting future growth are greater accept-

ance of assisted living as a new alternative to institutionalization,

conversion of nursing facilities to assisted living facilities, more

private insurance, increased use of public funds for support in lieu

of public support for nursing facility placement (i.e., increase in

SSI rate or other federal support), increased life expectancy, and

increased competition. Coopers & Lybrand, supra, at 22-23.

15

In addition to the economic advantages board and care

provides over institutional settings, population growth

trends predict a wave of older persons with disabilities.

The older population needing access to new forms of

residential services is increasing dramatically. The number

of persons aged 65 and older is growing more rapidly than

any other segment of the population. By 1989, one in

eight persons was at least aged 65. Aging America:

Trends and Projections, supra, at 2. By the year 2030,

there will be proportionately more older persons than

younger persons in the population—22 percent of the

population will be aged 65 and older, while 21 percent

will be under age 18. Jd. at 8. Using conservative projec-

tions (hereinafter baseline projections), the population

aged 65 and older will grow from 32 million in 1990 to

41 million in 2010, an increase of nearly one-third in a

20-year span. Sheila R. Zedlewski et al., The Needs of

the Elderly in the 21st Century 11-7 (1989). The popula-

tion is expected to reach 64 million by 2030, representing

another 57 percent increase from the projected 2010

level. Id.

More importantly, those persons aged 65 and older

with limitations in the activities of daily living will in-

crease dramatically. In 1990, approximately 4.4 million

persons of all those aged 65 and older had one or more

limitations in the activities of daily living. Aging Amer-

ica: Trends and Projections, supra, at 144. By 2010,

according to the Urban Institute’s study, the number of

persons aged 65 and older with ADL limitations will rise

to 9.0 million under the baseline mortality scenario or to

13 The Urban Institute study cited herein as The Needs of the

Elderly in the 21st Century at II-7 (1989) makes population growth

projections based on two different assumptions about future mor-

tality. The first is that the decline in death rates will slow to half

its historical pace, and the second, more optimistic mortality as-

sumption, is that the death rate will continue to decrease at its

year. Jd. at ii. Using

16

9.9 million under the optimistic scenario. Zedlewski et

al., supra, at I-34, Table 2.10. By 2030, the projections

are 13.8 million. persons (baseline) and 16.3 million per-

scns (optimistic). /d.* These proicctions are illustrated

in the following <i-art.

PROJECTED GROWTH IN POPULATION AGED 65+

WITH ADL LIMITATIONS

80 +

5

§ 64.4 I163

= 60 >

> 13.8 0 ADL Limitation

& 446 & No ADL Limitation

412 Baseline Mortality

H 40 + 90 9.9 Projections

30 @ No ADL Limitation

44 Optimistic Mortality

Projections

P|

0 + +

1990 * 2010 ** 2030 “*

Year

* Aging America: Trends & Projections at 144-45

"* Zediewski, supra,at |!-7, \|-34, Table 2.10

The Urban Institute study projects that there will be between

8.7 (baseline) and 12 million (optimistic mortality) frail elderly

(85 years and older) in 2030, compared with 2.5 million in 1984.

Thus, in 2030 the population of frail elderly persons is expected to

be 4.8 times the size of the same population in 1984, thereby

greatly increasing the demand for community support services. /d.

at ii-iii. The number of elderly persons at risk for long-term care

services in 2010 is projected at between 9.1 (baseline) and 10.1

million persons (optimistic mortality), and likely will grow to

between 13.8 (baseline) and 16.7 million persons (optimistic mor-

tality) by 2030. Jd. at vi.

17

The recent Urban Institute study starkly describes the

rapidly changing face of the aging American population.

By analyzing projected mortality rates, the anticipated

prevalence of disability and consequent changes in living

arrangements, and changes in income, the Institute report

concluded that “the increase in demand for supportive

services is likely to be greater than many realize because

future increases in the number of frail elderly, elderly with

health limitations, and elderly living alone will all exceed

the general increase in the elderly population” and these

factors will “be the major determinants of the future needs

of the elderly.” Jd. at Abstract.

But growth in numbers is only one part of the picture.

Social changes exacerbate the problem. “[A] much larger

proportion of the elderly is likely to be living alone, and

a larger proportion is likely to have some level of health

dependency.” Jd. at II-42. Thus, when the health of

older persons living alone deteriorates, there will be no

family members to care for them. Even with additional

in-home supportive services, there is likely to be a surge

in the need for long-term care facilities of one kind or

another. Jd.” The statistics are staggering:

Under the baseline projection assumptions, the num-

ber who will require some long-term care services

rises to 9.2 million in 2010 and to 14.1 million in

2030. Thus, more than one in five elderly persons

will require some services in 2010 and 2030 (the

total number of elderly will be 41.2 million 2010,

and 64.4 in 2030 . . .). Moreover, the number of

elderly in institutions will rise to 3.0 million in 2010

and 4.3 million in 2030—an increase of 139 percent

15“Using the criteria that an elderly person living in the com-

munity with 2 or more limitations in incidental activities of daily

living (IADLs) or 1 or more limitations in activities of daily

living (ADLs) needs some formal, in-home services, these projec-

tions show that the demand for these services will rise dramati-

cally—from 5.9 million elderly persons in 1990, to as many as

8.8 million elderly in 2010, and 14.7 million elderly in 2030.” Id. at

ix.

18

over the 1990 projection. . . . [T]he number of

elderly persons doubles during the same period. Thus,

the need for long-term care services will increase

faster than the size of the elderly population between

1990 and 2030, if the baseline mortality and health

assumptions are correct.

Id. at 1V-9. If the mortality rates do improve at historical

levels and disability rates do not decrease, “16.7 million

elderly will need long-term care services in 2030.” Id.

By either measure, there will be a population bulge of

unprecedented dimensions. Some of these persons will

need total care but numerous others will need less inten-

sive assistance, the type of assistance provided in com-

munity-based group living arrangements.

CONCLUSION

The growth of the board and care industry demon-

strates that, if given the opportunity, the housing market

will respond to the projected growth of older persons with

disabilities with a range of housing opportunities. The

need exists now, and surely will increase. Free choice in

housing will have little meaning to older persons with

disabilities if restrictive zoning ordinances are used to

prevent providers from opening new homes. The FHAA

was designed to ensure the inclusion of all persons with

disabilities into full community life by affording them

equal housing choices and should be construed in light

of that broad remedial goal.

For the foregoing reasons, the decision of the Ninth

Circuit should be affirmed.

Dated: January 23, 1995

19

Respectfully submitted,

STEVEN S. ZALEZNICK

MICHAEL SCHUSTER

BRUCE B. VIGNERY *

DororTuy M. SIEMON

DEBORAH M. ZUCKERMAN

AMERICAN ASSOCIATION OF

RETIRED PERSONS

601 E Street, N.W.

Washington, D.C. 20049

(202) 484-2120

* Counsel of Record