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Case Document

Consent Order United States v. Lincolnshire Senior Care LLC (N.D. Ill.)

Date
Document Type
Settlement/Consent Decree
Case: 1:15-cv-08782 Document #: 5 Filed: 10/19/15 Page 1 of 52 PageID #:241
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Case No. 1:15-cv-8782
) LINCOLNSHIRE SENIOR CARE, LLC, d/b/a ) CONSENT ORDER SEDGEBROOK and ) LIFE CARE SERVICES LLC, )
) Defendants. )
I. INTRODUCTION
1. The United States’ Complaint alleges that Defendants, Lincolnshire Senior Care, LLC, d/b/a Sedgebrook and Life Care Services LLC (“Defendants”), discriminated against residents of the Sedgebrook Continuing Care Retirement Community because of disability in violation of the Fair Housing Act, 42 U.S.C. §§ 3601-3619 (“FHA” or “Act”). Defendants deny they violated the FHA or any other law prohibiting discrimination. Defendants also deny any and all allegations made by the United States in this Order. Defendants agree to the terms of this Consent Order resolving this action filed by Plaintiff United States solely to avoid the time and significant cost of litigation.
II. BACKGROUND
2. Defendant Lincolnshire Senior Care, LLC owns, and Defendant Life Care Services LLC manages, Sedgebrook, a Continuing Care Retirement Community (or “CCRC”), as defined by 26 U.S.C. § 7872(h)(3), in Lincolnshire, Illinois.
3. Sedgebrook holds a life care permit issued by the Illinois Department of Public
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Health, and as such offers life care contracts to residents in addition to meeting certain financial requirements as prescribed in the Illinois Life Care Facilities Act, 210 ILCS 40 et seq.
4.
In September 2010, Lincolnshire Senior Care, LLC purchased Sedgebrook from Erickson Retirement Communities. Lincolnshire Senior Care, LLC retained Life Care Services LLC, a third party manager specializing in senior living, to manage Sedgebrook.
5.
Sedgebrook includes “dwellings” within the meaning of the Act, 42 U.S.C. § 3602(b), and consists of 467 residential living residences, 44 assisted living residences, and 84 private skilled nursing rooms in the health center. Sedgebrook also has common areas associated with those dwellings.
6.
In its residential living section, Sedgebrook offers unregulated dining services at the Shoreline Restaurant, a full service sit-down dining room, and the Monarch Café (also known as the Harvest Bistro), a less formal, self-service cafeteria. The Assisted Living and Skilled Nursing sections have separate, regulated dining facilities.
7.
The United States alleges that Sedgebrook residents who need assistance with the activities of daily living (“ADLs”) of eating and feeding are persons with disabilities1 within the meaning of the Act, 42 U.S.C. § 3602(h). In addition, the United States alleges that Sedgebrook residents who need assistance with the ADLs of dressing, bathing, grooming, and household management activities are also persons with disabilities within the meaning of the Act, id.
8.
In or about September 2011, Defendants adopted a Personal Service Provider Policy (“2011 PSP Policy”) that provided, in relevant part, “The PSP may assist the resident with
1 Although the Act refers to the protected class as persons with “handicap[s],” the term “disabilities” is synonymous and generally preferred, see Bragdon v. Abbott, 524 U.S. 624, 631 (1998), and will be used in this Consent Order.
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transportation to and from the dining areas in the Community but the PSP is not allowed to stay with the resident in the Shoreline Restaurant or Monarch Café during dining time.”
9.
The 2011 Sedgebrook Resident Handbook similarly provided, “A Personal Service Provider is allowed to escort a Resident to and from their table in the Shoreline restaurant or Café but a Personal Service Provider is not allowed to stay with the Resident in the Shoreline restaurant or Café during meal time.”
10.
The United States alleges that in or about April 2012, Defendants adopted the “Dining Services Policy for Independent Living Shoreline Restaurant and Monarch Café” (“2012 Dining Services Policy”), which outlined the criteria a resident must meet to dine in the Restaurant or the Café. The 2012 Dining Services Policy required that a resident “must be able to feed himself/herself in independent living dining room” with or without the use of unobtrusive adaptive eating devices and provided:
A resident using the Restaurant or Café should meet the following criteria:
1.1 Able to follow directions and communicate with others;
1.2 Able to dine with little or no assistance; and
1.3 Exhibit acceptable social behavior. Examples of unacceptable social behavior include, but are not limited to: a) food debris on clothing; b) use of uncontrollable or continued yelling or offensive language or gestures; c) drool, food and/or liquid seeping from the mouth; d) offensive body odor; e) continual rudeness, arguing and/or threatening behavior to staff, other residents and/or guests; and f) inadequately controlled incontinence.
1.4 Able to access the restroom on their own or with the assistance of a Personal Service Provider (PSP).
11.
Like the September 2011 PSP Policy, the April 2012 Dining Services Policy also provided that a “PSP will not be allowed to dine in the Restaurant or Café with the resident.”
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12.
The 2012 Dining Services Policy provided in Section 3.5 the following: “Any additional assistance needed while dining will be provided by the wait staff or the resident’s PSP.” Further, the 2012 Dining Services Policy provided in Section 4.6 the following: “Additional Assistance. Any additional assistance needed will be provided by the wait staff or the resident’s personal service provider.” Also, in the 2012 Dining Services Policy it states in Sections 3.4 and 4.5 that the PSP can carry the food tray to the table in the Café. Further, it states in Section 4.2 of the 2012 Dining Services Policy that the PSP can assist with transfer to a dining room chair at the resident’s request. Finally, in Section 8 of the 2012 Dining Services Policy it states that the PSP can provide minimal assistance with dining but not feeding.
13.
The United States alleges that these practices were continued after a revision to Sedgebrook’s “Dining Services Policy for Residential Living Restaurant and Café” that was made in June 2013 (“2013 Dining Services Policy”).
14.
In or about February 2014, Sedgebrook revised its Personal Service Provider Policy (“2014 PSP Policy”) to allow PSPs to stay and eat at the table in the Monarch Café. The United States alleges that in practice, this allowed PSPs or family members to assist a resident with, for example, setting up a plate, cutting food, and placing food on utensils in the Monarch Café; however, neither PSPs nor family members, including spouses, were allowed to assist a resident with such activities in the Shoreline Restaurant. Family members and PSPs remain barred from feeding a resident in both the Café and the Restaurant under the 2014 PSP Policy and the 2013 Dining Services Policy.
15.
The United States alleges that as a result of the policies and practices described above, residents who needed assistance with dining due to their disabilities were unable to have a PSP or family member, including a spouse, assist with certain tasks associated with dining,
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including feeding, in the Shoreline Restaurant and the Monarch Café.
16.
The United States alleges that a resident’s failure to follow these policies could, and did, result in residents with disabilities losing their dining privileges at the Shoreline Restaurant and Monarch Café.
17.
Beginning in or about September 2011 as set forth in the PSP Policy and continuing until at least February 2014, Defendants maintained a written policy that allowed Residential Living residents who needed assistance caring for themselves while living in residential living to hire qualified PSPs to provide 24-hour care in eight- or 12-hour shifts but prohibited residents from hiring live-in PSPs.
18.
The United States alleges that residents with disabilities, through their family members, requested that they be granted exceptions to Sedgebrook’s policy prohibiting live-in care because live-in care would better meet their health-related needs. The United States alleges that Sedgebrook denied or failed to respond to these requests.
19.
The United States alleges other residents would have preferred to have live-in care as well, but did not seek exceptions to Sedgebrook’s rule because they knew similar requests had been denied.
20.
In or about February 2014, Sedgebrook amended its PSP Policy to remove the language prohibiting live-in PSPs in a resident’s Residential Living apartment.
21.
The United States alleges that through these policies and practices, Defendants have discriminated in violation of the FHA and that this conduct constitutes a pattern or practice of discrimination in violation of the Act and a denial to a group of persons of rights granted by the Act, which raises an issue of general public importance.
22. The Defendants deny that any of their current or former policies, practices,
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procedures, or other conduct violate the FHA or any other statute, regulation, rule or policy that prohibits discrimination and instead contend that they adopted their policies, practices and procedures in compliance with the FHA and the Americans with Disabilities Act (“ADA”). This Agreement is not and should not be construed as an admission of liability by the Defendants.
23.
The Defendants further assert that their policies, practices, procedures, and other conduct was based upon a good faith belief formulated from review of the applicable laws, regulations, case law, and informal federal agency guidance such as the Joint Statement of HUD and the Department of Justice On Reasonable Accommodations Under the Fair Housing Act and the Joint Statement of HUD and the Department of Justice On Reasonable Modifications Under the Fair Housing Act.
24.
The parties agree that this Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. § 3614(a). The parties further agree that this controversy should be resolved without further proceedings and without an evidentiary hearing or a trial in order to avoid the delay, uncertainty, inconvenience, and expense of protracted litigation of the allegations in the Complaint.
25.
As indicated by the signatures appearing below, the parties agree to the entry of this Consent Order.
It is hereby ORDERED, ADJUDGED, and DECREED:
III. GENERAL INJUNCTION
26. Defendants and each of their officers, employees, agents, successors, and assigns, and all other persons in active concert or participation with them are enjoined from:
(a)
discriminating because of disability as prohibited by the FHA, 42 U.S.C. § 3604(f); and
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(b)
refusing to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person an equal opportunity to use and enjoy a dwelling as required by the FHA, 42 U.S.C. § 3604(f)(3)(B).
IV. NON-DISCRIMINATION POLICIES
27.
Within ten (10) days after the entry of this Consent Order, Defendants shall post and prominently display in the Sedgebrook main office in an area accessible to, or frequented by, the public and residents a poster no smaller than 10 by 14 inches indicating that all dwelling units are available on a non-discriminatory basis as required by the FHA. A poster that comports with 24 C.F.R. Part 110 will satisfy this requirement.
28.
Dining Room and Events Policies: Within fifteen (15) days after the entry of this Consent Order, Defendants shall implement the Sedgebrook Dining Room and Events Policy at Sedgebrook, attached as Appendix A.
29.
Personal Service Provider Policy: Within fifteen (15) days after the entry of this Consent Order, Defendants shall implement a revised version of the Sedgebrook Personal Service Provider Policy at Sedgebrook that shall be approved in advance by the United States and shall meet the minimum criteria stated in Appendix B. The United States may extend this timeline if, after good faith efforts and continued productive negotiations, the parties require additional time to finalize the Sedgebrook Personal Service Provider Policy.
30.
Reasonable Accommodations Policy: Within fifteen (15) days after the entry of this Consent Order, Defendants shall implement the Sedgebrook Reasonable Accommodations Policy at Sedgebrook, attached as Appendix C.
31. Within thirty (30) days after the entry of this Consent Order, Defendants shall
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provide to all current Sedgebrook residents the Sedgebrook Dining Room and Events Policy (adopted version of Appendix A), the Sedgebrook Personal Service Provider Policy (adopted version of Appendix B) and the Sedgebrook Reasonable Accommodations Policy (adopted version of Appendix C) (collectively “the Non-Discrimination Policies”). To the extent that a current Sedgebrook resident is incapacitated, Defendant shall provide the Non-Discrimination Policies to such resident’s next of kin or other responsible party as identified in the resident’s file. The Defendant shall, for the duration of this Order, provide the Non-Discrimination Policies to all new Sedgebrook residents on or before the date on which any disclosure statement is required to be provided and, in any event, before they move into the facility. Within thirty-five (35) days after the entry of this Consent Order, Defendants shall provide a sworn affidavit to counsel for the United States stating that the Nondiscrimination Policies were distributed to all current Sedgebrook residents or their next of kin.
32.
Within sixty (60) days after the entry of this Consent Order, Defendant Life Care Services shall review its template policies for all CCRC and Residential Living Facilities (i.e. independent living) to determine if its template CCRC and Residential Living Facility policies are consistent with the Non-Discrimination Policies.
33.
Subject to the requirements and time periods contained in Paragraphs 34 and 35, Defendants shall not manage any CCRC or Residential Living Facility inconsistently with the requirements contained in this Consent Order, including the material terms of the Non-Discrimination Policies.
34.
At all CCRCs and Residential Living Facilities in which Defendants (or their affiliates) have a controlling ownership interest, within ninety (90) days after the entry of this Consent Order, Defendants shall revise any such community policies that are inconsistent with
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the Non-Discrimination Policies (excluding such provisions that are unique to a facility such as dress codes, guest dining fees, and similar provisions and excluding the requirement that the facility have a Fair Housing Act Compliance Officer) and implement the revised policies so they are consistent with the Non-Discrimination Policies. Within one hundred (100) days after the entry of this Consent Order, Defendants shall provide a sworn affidavit to the United States confirming the policy review and revision of all CCRCs and Residential Living Facilities covered by this paragraph, unless Defendant Life Care Services can show a good faith reason for such delay in implementation of such policies. During the term of this Consent Order, no CCRCs and Residential Living Facilities in which Defendants (or their affiliates) have a controlling ownership interest shall adopt policies inconsistent with the Non-Discrimination Policies.
35.
For all CCRCs and Residential Living Facilities that are managed by Defendant Life Care Services but in which Defendants have no controlling ownership interest, to the extent a community policy is inconsistent with the Non-Discrimination Policies, Defendant Life Care Services shall prepare policies consistent with the Non-Discrimination Policies and recommend their adoption by each facility as soon as reasonably practical (excluding such provisions that are unique to a facility such as dress codes, guest dining fees and similar provisions and excluding the requirement that the facility have a Fair Housing Act Compliance Officer). For the duration of this Consent Order, until all facilities covered by this paragraph have adopted policies consistent with the Non-Discrimination Policies or until Defendant Life Care Services has fully terminated all management contracts with all facilities that have refused or failed to adopt policies consistent with the Non-Discrimination Policies, Defendant Life Care Services shall report every ninety (90) days on the status of the implementation of policies at the facilities
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covered by this paragraph by providing (i) the number of facilities covered by this paragraph, (ii) the number of facilities that have adopted revised Non-Discrimination Policies consistent with this paragraph, (iii) the number of facilities that have refused to adopt revised Non-Discrimination Policies consistent with this paragraph, and (iv) the steps taken, if applicable, to terminate any management agreement as required in this paragraph. With respect to any facility that has failed to adopt revised Non-Discrimination Policies consistent with this paragraph within three hundred and sixty (360) days after the entry of this Consent Order, unless Defendant Life Care Services can show a good faith reason for such failure, Defendant Life Care Services shall take prompt and appropriate action, consistent with any legal or contractual obligations that it may have, to commence termination of any management agreement regarding such a facility. In addition, with respect to any such facility that has refused to adopt revised Non-Discrimination Policies consistent with this paragraph within three hundred and sixty (360) days after the entry of this Consent Order, Defendant Life Care Services shall take prompt and appropriate action after such refusal, consistent with any legal or contractual obligations that it may have, to commence termination of any management agreement regarding such facility. Defendant Life Care Services shall take the same action if, during the term of this Consent Order, Defendant Life Care Services becomes aware that a CCRC or Residential Living Facility that is managed by Defendant Life Care Services but in which Defendants have no controlling ownership interest adopts a policy inconsistent with the Non-Discrimination Policies.
V. FAIR HOUSING ACT COMPLIANCE OFFICER
36. Within fifteen (15) days after the entry of this Consent Order, Defendants shall designate an employee as the “Fair Housing Act Compliance Officer” at Sedgebrook. The Fair Housing Act Compliance Officer serves as a resident advocate by ensuring a full review of the
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pertinent criteria resulting in fair access and accommodation to facilities and services available to residents. The Fair Housing Act Compliance Officer shall also have the responsibility to receive complaints of alleged housing discrimination by Defendants from Sedgebrook residents, guests, or family and coordinate Defendants’ compliance with this Consent Order. The Fair Housing Act Compliance Officer shall have the additional responsibility of providing consultation to the healthcare professionals regarding access to dining rooms and requests for reasonable accommodations, pursuant to the Non-Discrimination Policies. The Fair Housing Act Compliance Officer shall maintain copies of this Consent Order, the Non-Discrimination Policies, the HUD Complaint Form, the HUD pamphlet entitled “Are you a victim of housing discrimination” (HUD official forms 903 and 903.1, respectively), the Joint Statement of HUD and the Department of Justice On Reasonable Accommodations Under the Fair Housing Act, and the Joint Statement of HUD and the Department of Justice On Reasonable Modifications Under the Fair Housing Act. The Fair Housing Act Compliance Officer shall make these materials available free of charge to residents and their family members upon request, including all persons making housing discrimination complaints to Defendants. The Fair Housing Act Compliance Officer shall be knowledgeable regarding the rights of residents of nursing and assisted living facilities and shall be experienced regarding resident relations and services. The Fair Housing Act Compliance Officer shall designate an alternate person to perform the function of the Fair Housing Act Compliance Officer in the absence or other unavailability of the Fair Housing Act Compliance Officer.
VI. NO RAISING OF RENTS OR FEES
37. Defendants, their agents and affiliated companies, may not raise the rent or fees of any dwelling unit, or demand a deposit or other fee for a dwelling unit at Sedgebrook because
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of this Consent Order. This provision does not prohibit Defendants from increasing a fee or otherwise requiring a resident to pay an amount to Defendants that is unrelated to this Consent Order or the adoption of Policies not specified in this Consent Order.
VII. MONETARY DAMAGES TO AGGRIEVED PERSONS2
38.
Within ten (10) days after the entry of this Consent Order, Defendants shall deposit in an interest-bearing escrow account the total sum of TWO HUNDRED TEN THOUSAND DOLLARS and 00/100 ($210,000.00) for the purpose of compensating the aggrieved persons identified in Appendix D as well as any additional persons whom the Court determines may have been harmed by the Defendants’ discriminatory practices (hereinafter “aggrieved persons”). This money shall be referred to as the “Settlement Fund.”
39.
Any interest accruing to the fund shall become a part of the Settlement Fund and be utilized as set forth herein.
40.
All expenses related to the establishment of the account referenced in Paragraph 38 above, shall be borne by the Defendants.
41.
Within thirty (30) days after the entry of this Consent Order, Defendants shall provide a copy of the Notice set forth in Appendix E to all of Sedgebrook’s current and former residents with life-care contracts (“CCRC Residents”) since January 1, 2011 (using the last known address of any former resident). To the extent that a former Sedgebrook CCRC Resident is deceased, or a current Sedgebrook CCRC Resident is incapacitated, Defendants shall send a copy of the Notice set forth in Appendix E to the last known next of kin or other responsible
2 Defendants have reached an agreement in the lawsuit filed in the United States District Court Northern District of Illinois captioned Richard Miller, Individually, and as Appointed Independent Executor of the Estate of Phyllis Miller and the Estate of Sheldon Miller v. Lincolnshire Senior Care, LLC, Senior Care Development, LLC, and Life Care Services LLC, Case No. 1:14-cv-01303, and dismissal papers are expected to be filed on or before October 3, 2015.
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party identified in Defendants’ records. Within forty five (45) days after the entry of this Consent Order, Defendants shall provide a sworn affidavit to counsel for the United States confirming that the Notice has been sent in accordance with this paragraph and the identity of the individuals to whom the Notice was sent. Upon request by the United States, Sedgebrook shall provide individual contact information for individuals to whom the notice was sent whom the United States believes it needs to contact to carry out the requirements set forth herein.
42.
Within thirty (30) days after the entry of this Consent Order, Defendants shall make available to the United States for inspection and copying all CCRC Resident records at Sedgebrook not previously produced for the United States’ use in identifying potential aggrieved persons related to the allegations in this Consent Order. Defendants shall permit the United States, upon reasonable notice, to review and copy any CCRC Resident records that may facilitate its determinations regarding the claims of allegedly aggrieved persons at Sedgebrook. Such records shall include, but not be limited to, records relating to resident complaints, requests for reasonable accommodations, and requests by a resident for a live-in PSP. The parties have submitted or will submit a Stipulated Protective Order to the Court and the disclosure of any resident record(s) or other information shall be subject to the Protective Order.
43.
Nothing in this Consent Order shall preclude the United States from making its own efforts to locate and provide notice to potential aggrieved persons pursuant to the terms of this Consent Order.
44.
Within one hundred and eighty (180) days of the entry of this Consent Order, the United States shall make a preliminary determination as to which additional persons have been allegedly aggrieved and a recommendation of an appropriate amount of monetary damages that should be paid from the Settlement Fund to each allegedly aggrieved person. The United States
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will inform Defendants in writing of its preliminary determinations, together with a copy of a sworn declaration from each alleged aggrieved person setting forth the factual basis of the claim. Defendants hereby waive the right to dispute the United States’ determinations regarding the currently identified aggrieved persons identified at Appendix D, both as to the identified individuals’ entitlement to an allocation from the Settlement Fund and the amount of that allocation, which will be determined by the United States. With respect to any additional identified aggrieved persons, Defendants shall have fourteen (14) days to review the declarations and provide to the United States any additional documents or information that they believe may refute the claims.
45.
After completion of the process described in Paragraph 44, the Parties shall submit their joint final recommendations to the Court for approval if they agree, or separate recommendations if they do not agree. When the Court issues an order providing for the distribution of funds to aggrieved persons the Defendants shall, within thirty (30) days, deliver to the United States checks payable to the alleged aggrieved persons or their representative in the amounts approved by the Court provided the alleged aggrieved person or their representatives have executed a release in the form of Appendix F. In no event shall the aggregate of all such checks exceed the amount of the Settlement Fund, including any accrued interest.
46.
In the event that less than the total amount in the Settlement Fund including accrued interest is distributed to persons deemed aggrieved by the United States, the Court shall order the remainder of the Settlement Fund to be distributed to a qualified organization(s) for the purpose of conducting fair housing enforcement or educational activities in the metropolitan Chicago, Illinois area. Before selecting the qualified organization(s), the Defendants will obtain a proposal from the organization(s) on how the funds will be used consistent with the above-
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stated purpose, submit such proposal to the United States, and consult with and obtain the non- objection of the United States. The United States and the Defendants may request modification of the proposal before approving the organization(s). The parties shall thereafter seek approval from the Court to distribute the remaining funds to the qualified organization(s). The qualified organization(s) receiving the funds shall submit to the United States and Defendants a detailed report on how the funds are utilized within one year of receipt of funds, and every year thereafter until the funds are exhausted.
VIII. CIVIL PENALTY
47. Within thirty (30) days after the entry of this Consent Order, Defendants shall pay a total of FORTY FIVE THOUSAND DOLLARS AND 00/100 ($45,000.00) to the United States as a civil penalty, pursuant to 42 U.S.C. § 3614(d)(1)(C). This payment shall be in the form of an electronic funds transfer pursuant to written instructions provided by the United States.
IX. EDUCATIONAL PROGRAM
48.
Within fifteen (15) days after the entry of this Consent Order, Defendants shall provide current employees and agents with direct or supervisory authority for entering into life care contracts at Sedgebrook (i.e. Marketing Department) and/or managing Sedgebrook (i.e. Administration) and current employees and agents with direct or supervisory authority for resident services at Sedgebrook (i.e. Resident Services Department) (collectively, the “Responsible Employees”) with a copy of the Non-Discrimination Policies and the summary of this Consent Order (“Summary”) appearing at Appendix G. Defendants shall secure a signed statement from each Responsible Employee acknowledging that he or she has received and read the Summary and the Non-Discrimination Policies and has had an opportunity to have questions
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about the Summary and the Non-Discrimination Policies answered. This statement shall be substantially similar to the form of Appendix H.
49.
For the duration of this Consent Order, within thirty (30) days after the date he or she commences an agency or employment relationship with Defendants, each new Responsible Employee will be given a copy of the Summary and the Non-Discrimination Policies and be required to sign the statement acknowledging that he or she has received and read the Summary and the Non-Discrimination Policies and has had an opportunity to have questions about the Summary and the Non-Discrimination Policies answered. This statement shall be substantially similar to the form of Appendix H.
50.
Within ninety (90) days after the entry of this Consent Order, the Responsible Employees shall undergo training on the requirements of the FHA, including the requirement to provide reasonable accommodations to persons with disabilities. The training shall be conducted by a qualified individual who has been previously approved by Counsel for the United States. Any expenses associated with this training shall be borne by Defendants. Defendants shall provide to the United States, within thirty (30) days after the training, the name(s), address(es) and telephone number(s) of the trainer(s); copies of the training outlines and any materials distributed by the trainer(s); and certifications executed by the Responsible Employees confirming their attendance, in a form substantially equivalent to Appendix I.
X. NOTIFICATION AND DOCUMENT RETENTION REQUIREMENTS
51.
Every six months during the duration of this Consent Order, Defendants shall submit to the United States3 a report containing the signed statements of new Responsible
3 For purposes of this Consent Order, any notices, documents or written materials that are required to be provided to the United States shall be sent by commercial (non-USPS) overnight delivery to: United States Department of Justice, Civil Rights Division, Housing and Civil Enforcement Section, 1800 G Street, N.W., Suite 7002,
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Employees who, in accordance with Paragraph 48 of this Consent Order, have received and read the Summary and the Non-Discrimination Policies, and had an opportunity to have questions about the Summary and the Non-Discrimination Policies answered. The report will also include
(1) a copy of any request for reasonable accommodations made to Sedgebrook and all documents relating thereto, including documentation of how each request was handled and all reasons for that determination; and (2) all documentation regarding any determinations made regarding any resident’s ability to dine in the Shoreline Restaurant or Monarch Café. The final report shall be submitted 60 days prior to the termination date of this Order.
52.
For the duration of this Consent Order, Defendant shall advise the United States in writing within fifteen (15) days of receipt of any fair housing complaint filed with a court or governmental agency of competent jurisdiction, or lodged with the Defendants themselves, against Defendants, or against any employee or agent of Defendants working in his or her capacity as an agent or employee at or for Sedgebrook, regarding discrimination on the basis of disability at Sedgebrook. Upon reasonable notice, Defendants shall also provide the United States all non-privileged information it may request concerning any such complaint. Defendants shall also advise counsel for the United States, in writing, within fifteen (15) days of resolution of any such complaint.
53.
Defendants are required to preserve all records related to this Consent Order until the termination date of this Order. Upon reasonable notice to Defendant, representatives of the United States shall be permitted to inspect and copy the records Defendants are required to preserve under this Consent Order, provided however, that the United States shall endeavor to minimize any inconvenience to Defendants.
Washington, D.C. 20006, Attn. D.J. # 175-23-820.
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XI. DURATION OF CONSENT ORDER AND TERMINATION OF LEGAL ACTION
54.
This Consent Order shall remain in effect for three (3) years after the date of its entry. By consenting to entry of this Consent Order, the parties agree that in the event that any Defendant engages in any future conduct occurring after entry of this Consent Order that leads to a determination of a violation of the Fair Housing Act, such conduct shall constitute a subsequent violation pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii).
55.
The Court shall retain jurisdiction for three (3) years from the date of entry of this Consent Order to enforce the terms of the Consent Order, at which time the case shall be dismissed with prejudice. The United States may move the Court to extend the duration of the Consent Order in the interests of justice, subject to the Defendants’ rights to object to any such motion.
56.
The United States and Defendants shall endeavor, in good faith, to resolve informally any differences regarding interpretation of and compliance with this Consent Order prior to bringing such matters to the Court for resolution. However, in the event any Defendant fails to perform, in a timely manner, any act required by this Consent Order, or otherwise fails to act in conformance with any provision thereof, the United States may move this Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance of such act or deeming such act to have been performed, and an award of any damages, costs, and reasonable attorney’s fees which may have been occasioned by the violation or by the failure to perform.
XII. TIME FOR PERFORMANCE
57.
Any time limits for performance imposed by this Consent Order may be extended by the mutual written agreement of the United States and the Defendant, and granting
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an extension will not be unreasonably withheld.
XIII. COSTS OF LITIGATION
58. All parties will bear their own costs and attorney’s fees associated with this litigation.
XIV. TERMINATION OF LITIGATION HOLD
59. The parties agree that, as of the date of the entry of this Consent Order, litigation is not “reasonably foreseeable” concerning the matters described above. To the extent that either party previously implemented a litigation hold to preserve documents, electronically stored information (ESI), or things related to the matters described above, the party is no longer required to maintain such litigation hold. Nothing in this paragraph relieves either party of any other obligations imposed by this Consent Order.
SO ORDERED this 19th day of October, 2015.
MANISH S. SHAH
UNITED STATES DISTRICT COURT JUDGE
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The undersigned apply for and consent to the entry of this Consent Order:
For Plaintiff United States:
ZACHARY T. FARDON
VANITA GUPTA
United States Attorney
Principal Deputy Assistant Attorney General
Northern District of Illinois
s/ Emily M. Savner
PATRICK W. JOHNSON
STEVEN H. ROSENBAUM, Chief
Assistant United States Attorney
Housing and Civil Enforcement Section
219 S. Dearborn St.
TIMOTHY J. MORAN
Chicago, IL 60604
Deputy Chief
Phone: 312-353-5327
JULIE J. ALLEN
patrick.johnson2@usdoj.gov
EMILY M. SAVNER
Trial Attorneys
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section
950 Pennsylvania Avenue, N.W. – G Street
Washington, D.C. 20530
Phone: (202) 307-6275
Fax: (202) 514-1116
julie.allen@usdoj.gov
emily.savner@usdoj.gov
For Defendants Lincolnshire Senior Care, LLC d/b/a Sedgebrook and Life Care Services LLC:
s/ Scott Parish Moore Scott Parrish Moore of BAIRD HOLM LLP 1500 Woodmen Tower 1700 Farnam St Omaha, NE 68102-2068 Phone: 402-344-0500 Email: spmoore@bairdholm.com
and
s/ William S. Fish, Jr. William S. Fish, Jr.
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HINCKLEY ALLEN 20 Church Street Harford, CT 06103
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APPENDIX A SEDGEBROOK DINING ROOM AND EVENTS POLICY PRINCIPLES:
The nature of our operations and the varied health conditions of our Residents means
Sedgebrook must be particularly sensitive to ensuring full and fair participation by all in the
dining program, consistent with the varying health status of our Residents, the health and
well-being of all Residents, and our regulatory obligations as a health care provider. We
have established guidelines for use of the Shoreline Restaurant and Harvest Bistro
(collectively, the “Residential Dining Rooms”) in an effort to provide Residents and guests
with a safe and enjoyable dining experience and to promote equal access to services and
amenities, regardless of the existence of actual or potential impairments.
As a Continuing Care Retirement Community offering multiple levels of care,
including independent residential living (“Residential Living”), assisted living and skilled
nursing (collectively, “Levels of Care”), Sedgebrook has multiple dining options for
Residents that are based on the specific Levels of Care and that are staffed and operated
consistent with the respective regulations associated with each Level of Care. The
Residential Dining Rooms are not staffed or monitored in the manner required by laws and
regulations applicable to dining and living areas in the assisted living and skilled nursing
units (collectively, the “Healthcare Units” and individually a “Healthcare Unit”).
Accordingly, the Residential Dining Rooms are considered “unregulated” dining rooms.
Medical supervision and assistance by licensed personnel is only available in the Healthcare
Units or at events that are specifically designated for those populations. Physician ordered
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special diets are not provided in the Residential Dining Rooms and dietary restrictions and
food intake cannot be properly monitored and recorded in the Residential Dining Rooms.
Residents whose health status requires the Level of Care provided in one of the Healthcare
Units are welcome in the Residential Dining Rooms and Residential Living events under
the terms of this Policy. However, if specific medical concerns are present with respect to
an individual Resident, they may be addressed through a reasonable accommodation
process by our Level of Care Committee in consultation with the Fair Housing Act
Compliance Officer.
Participation by Healthcare Residents in Residential Living events and Residential
Dining Rooms will be assessed on an individualized basis, consistent with medical
necessity and the recommendations and directions of the Level of Care Committee in
consultation with the Fair Housing Act Compliance Officer.
POLICY AND PROCEDURE:
A. Dress Code: Sedgebrook requests that Residents and their guests must be dressed in a socially acceptable manner while in the Restaurant. Sedgebrook requests that Residents and their guests wear collared shirts and not wear the following: sleeping attire, bedroom slippers, robes, tee shirts, sweatshirts, sweat pants, tank tops, blue jeans, stretch pants, shorts, jogging suits, beachwear or beach shoes, which are considered inappropriate attire in the Residential Dining Rooms. Sedgebrook requests Residents and their guests not wear hats while in the Residential Dining Rooms unless needed for medical or cultural reasons. The dress code may not apply on special days such as Memorial Day, Fourth of July, and Labor Day and during family-friendly casual events. Sedgebrook
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will inform Residents if the dress code will not apply on a specific day.
The Café offers Residents and their guests a casual dining atmosphere for breakfast,
lunch, and dinner. Residents and their guests are asked to dress in good taste as a
courtesy to fellow Residents and to uphold an atmosphere of casual dining. Bathing
attire is considered inappropriate for the Café. Proper footwear is required.
B. Guests: All Residents are permitted to invite a reasonable number of guests to dine with them in the Residential Dining Rooms, space permitting, on an equal basis with other Residents. When inviting guests, reservations are recommended to ensure that adequate seating is available. When the Resident’s party is more than four, reservations are required to ensure adequate seating is available and that the table is set properly. Any guest who resides in a Healthcare Unit, but who is not a Resident within the meaning of this Policy, must also comply with all aspects of this Policy applicable to Healthcare Residents. Guests must comply with all aspects of this Policy. A Resident who invites a guest(s) to dine in the Residential Dining Rooms will be charged the guest meal fee for each guest. However, Residents of Residential Living are able to use up to four of their own meals each month for guests if they choose to do so. Should the guest be a Healthcare Resident, a credit will not be given to such Healthcare Resident for the meal not taken in the Healthcare Units.
C. Rules and Regulations: All Residents and their guests must comply with all rules and procedures in effect for the regulation of the enjoyment of the Residential Dining Rooms, including without limitation, rules and procedures regarding personal conduct such as smoking policies, limitations on cell phone usage, rules prohibiting
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loud or inappropriate language and prohibitions against offensive or disruptive conduct.
D. Notification: Healthcare Residents must notify their assigned dining room in the Healthcare Units not later than during breakfast if that Resident intends to eat lunch in a Residential Dining Room. Healthcare Residents must notify their assigned dining room in the Healthcare Units not later than during lunch if that Resident intends to eat dinner in a Residential Dining Room.
E. Personal Aides: Any Resident may have an Aide accompany them to the Residential Dining Rooms or to Residential Living events to assist the Resident with transportation and feeding. Aides are permitted to eat with the Resident in the Residential Dining Rooms as a guest of the Resident provided that the Resident will be charged a guest fee (or the Resident can use a meal credit if applicable) in such circumstance and the Aide must comply with all applicable policies and procedures for dining in the Residential Dining Rooms including policies and procedures regarding dress codes and reservations. All Residents must make arrangements to get to and from the Residential Dining Rooms and/or events on their own or with private assistance.
F. Canes and Walkers: The use of a walker or cane by a Resident who prefers to use such aid, or whose medical needs makes it necessary to use such aid, is permitted. However, the following rules will apply:
1.
After entering the Residential Dining Room and being seated, a server will, when necessary, valet the walker.
2.
A cane should be hung from the table or on the Resident's chair.
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3.
When the Resident is ready to leave, the wait staff will return the walker to the table.
4.
For safety considerations, wait staff or a Resident’s family member, guest, or Aide, will carry the food trays to the tables of Residents who are unable to do so on their own, if not otherwise offered waited table service.
5.
All canes and walkers must be identified by the Resident's name and residence number.
G. Wheelchairs and Electric Mobility Vehicles (Carts):
1.
Resident Choice/Ingress/Egress. A Resident shall not be required to transfer from a wheelchair or a cart to a chair. All Residents and guests must comply with all rules and procedures regarding ingress or egress in the case of an emergency.
2.
Resident Who Desires To Transfer With Assistance.
A Resident who desires to transfer from a wheelchair or a cart to a chair with assistance should provide a written statement from his/her attending physician authorizing an assisted transfer from the wheelchair or cart. If the Resident does not provide a written statement from his/her attending physician authorizing an assisted transfer from the wheelchair or a cart to a chair and the Resident still desires to transfer with assistance, the Resident and Sedgebrook may sign an Informed Choice Agreement (attached as Exhibit 1).
If the Resident does not provide a written statement from his/her attending physician authorizing an assisted transfer from the wheelchair or a cart to a chair and if the Resident and Sedgebrook do not sign an Informed Choice Agreement, then the Resident shall be promptly referred to the Fair Housing Act Compliance Officer who shall assist the Resident and family in evaluating whether any reasonable accommodations may be proposed on behalf of the Resident regarding transferring and coordinate a further review with the Nurse, Physician and/or the Level of Care Committee. In conducting its determinations, the Nurse, Physician and/or the Level of Care Committee will make an individualized determination in consultation with the Fair Housing Act Compliance Officer as to whether and how the Resident should be permitted to transfer, including whether the parties should sign an Informed Choice Agreement.
Transfers must be assisted by the Resident's Aide, family member or guest at the Resident's expense. Wait staff is not trained to and shall not transfer a Resident from their wheelchair or a cart to a chair.
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If a Resident is transferred to a chair, a server will valet park the wheelchair or cart. When the Resident is ready to leave, the wait staff will return the wheelchair or cart to the table.
3. Resident Who Transfers Independently.
A Resident who desires to transfer from his/her wheelchair or cart independently should provide a written statement from his/her attending physician stating that the Resident is capable of transferring from his/her cart to a chair without assistance.
If the Resident does not provide a written statement from his/her attending physician authorizing a transfer from his/her wheelchair or cart to a chair without assistance and the Resident still desires to transfer without assistance, the Resident and Sedgebrook may sign an Informed Choice Agreement (attached as Exhibit 1).
If the Resident does not provide a written statement from his/her attending physician stating that the Resident is capable of transferring from his/her cart to a chair without assistance and if the Resident and Sedgebrook do not sign an Informed Choice Agreement, then the Resident shall be promptly referred to the Fair Housing Act Compliance Officer who shall assist the Resident and family in evaluating whether any reasonable accommodations may be proposed on behalf of the Resident regarding transferring and coordinate a further review with the Nurse, Physician and/or the Level of Care Committee. In conducting its determinations, the Nurse, Physician and/or the Level of Care Committee will make an individualized determination in consultation with the Fair Housing Act Compliance Officer as to whether and how the Resident should be permitted to transfer, including whether the parties should sign an Informed Choice Agreement.
If the Resident transfers to a chair, wait staff will valet park the wheelchair or cart. When the Resident is ready to leave, wait staff will return the wheelchair or cart to the table.
4. Labeling of Assistive Devices. All wheelchairs and carts must be labeled with the Resident's name and residence number
H. Acknowledgement: Healthcare Residents must execute and have on file with
Sedgebrook an appropriate Release of Responsibility for Leave of Absence form
(attached as Exhibit 2) for that Resident's use of the Residential Dining Rooms or
attendance at Residential Living events. Additionally, Healthcare Residents must
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execute an Against Medical Advice (AMA) Form and Liability Release (attached as Exhibit 3) if a Resident wants to eat in the Residential Dining Rooms or attend Residential Living events against medical advice.
I. Level of Care Committee: The "Level of Care Committee" is composed of Health Care and other trained professionals who are responsible for the assessment of the functional ability of Residents and who are tasked with the responsibility of providing guidance and support in level of care determinations.
J. Prohibited Conditions: There are medical conditions that may impact a Resident's ability to dine in the Residential Dining Rooms or to attend Residential Living events. These conditions include a contagious infection, communicable disease or infected open wound. A Resident with one or more of these conditions may be prohibited from dining in the Residential Dining Rooms or attending Residential Living events by the Nurse, Physician or the Level of Care Committee, until the Resident's condition is resolved or no longer poses a direct threat to self or others. In such event, the Resident shall be promptly referred to the Fair Housing Act Compliance Officer who shall assist the Resident and family in evaluating whether any reasonable accommodations may be proposed on behalf of the Resident and coordinate a further review with the Nurse, Physician and/or the Level of Care Committee. In conducting its determinations, the Nurse, Physician and/or the Level of Care Committee will make an individualized determination in consultation with the Fair Housing Act Compliance Officer as to whether the Resident should be permitted to continue to eat in the Residential Dining Rooms or to attend a specified Residential Living event.
K. Certain Medical Conditions: Any Resident who has a medical condition other than a
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contagious infection, communicable disease, or infected open wound as described in Paragraph J above, which may limit his/her ability to safely or in a non-disruptive manner eat in the Residential Dining Rooms or to attend Residential Living events may be refused access to the Residential Dining Rooms or Residential Living event venues by the Nurse, Physician or the Level of Care Committee. In such event, the Resident shall be promptly referred to the Fair Housing Act Compliance Officer who shall assist the Resident and family in evaluating whether any reasonable accommodations may be proposed on behalf of the Resident and coordinate a further review with the Nurse, Physician and/or the Level of Care Committee. In conducting its determinations, the Nurse, Physician and/or the Level of Care Committee will make an individualized determination in consultation with the Fair Housing Act Compliance Officer as to whether the Resident should be permitted to continue to eat in the Residential Dining Rooms or to attend a specified event.
L. All evaluations of a Resident's ability to dine in the Residential Dining Rooms, attend Residential Living events, and/or transfer from wheelchair or cart to a chair, and any reasonable accommodations requested, granted or denied, shall be documented in writing and maintained in a confidential file by the Fair Housing Act Compliance Officer. A copy shall also be placed in the Resident's medical file, if required by regulation.
M. For purposes of this Policy, a "Resident" is defined as any Resident of Sedgebrook who is a party to a Residency and Care Agreement with Sedgebrook regardless of the Level of Care to which the Resident has been assigned.
N. An individual who is not a party to a Residency and Care Agreement with
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Sedgebrook who resides in a Healthcare Unit but who does not otherwise meet the definition of a Resident set forth above shall be referred to herein as a "Direct Admit."
O. A "Healthcare Resident" shall mean an individual who is a Resident assigned to one of the Healthcare Units.
P. "Aides" are personal aides to Residents, such as a family member, volunteer, or personal service provider engaged to accompany the Resident to assist with transportation and feeding.
Q. A Direct Admit shall only be entitled to use the Residential Dining Rooms or attend Residential Living events open to Residents of Residential Living to the extent specified by the terms of his/her individual contract with Sedgebrook and in compliance with the terms of this Policy. To the extent that a Direct Admit contracts for access to the Residential Dining Rooms and/or attendance at Residential Living events, they shall be treated as a Resident for purposes of this Policy. Notwithstanding the foregoing, a Direct Admit may dine in a Residential Dining Room or attend Residential Living events open to Residents of Residential Living as a guest of a Resident subject to compliance with all aspects of this Policy applicable to guests.
R. A Direct Admit spouse of a Resident shall be treated as a Resident for purposes of this Policy.
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APPENDIX A -EXHIBIT 1
SEDGEBROOK
INFORMED CHOICE AGREEMENT
THIS [NEGOTIATED RISK/INFORMED CHOICE] AGREEMENT ("Agreement") is made effective this _____ day of ________________, 20_____, by and between [Legal Name of Owner/Provider] ("we", "us", or "our"), the owner of an [assisted living/continuing care/life care] community known as [Community Name] and __________________________________________________ ("Resident", "you", or "your").
RECITALS
A. Whereas, you and we have entered into a [Name of Residency Agreement] dated __________________, 20____ ("Residency Agreement") in which we agree to provide certain services in connection with your agreement to abide by our policies.
B. Whereas, it is our policy that you have a physician’s order to transfer from a motorized cart to a chair when using the dining room with/without assistance from another person ("Policy").
C. Whereas, you have requested to transfer from a motorized cart to a chair when using the dining room without a physician’s order ("Exception to Policy").
D. Whereas, you are aware of the risks associated with the Exception to Policy and despite these risks desire that the Exception to Policy be implemented with respect to your stay in the [Community Name].
E. Whereas, we agree to implement the Exception to Policy to support your right to make individual decisions, to live independently and to preserve your personal autonomy, subject to the following terms and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing, the parties agree as follows:
1.
Recognition of Risk Factors. You acknowledge that you have been informed by us of the risk of falling and/or risk of injury associated with the Exception to Policy ("Risk Factors") and have had all of your questions or concerns addressed and answered to your satisfaction.
2.
Modification Plan. You and we agree to take the following actions in order to implement the Exception to Policy while attempting to minimize Risk Factors ("Modification Plan"):
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Updated April 18, 2023