## Facts

- Sally Herriot, a long-term resident of a continuing care retirement community (CCRC), lived in an independent-living unit under a continuing care agreement providing lifetime care in exchange for fees.
- The CCRC was licensed under California law to provide a continuum of independent living, assisted living, and skilled nursing, and operated under a state regulatory scheme requiring governmental review and approval of resident contracts.
- Herriot’s contract authorized the facility to transfer her to assisted living or skilled nursing when, in the staff physician’s opinion, her condition required a higher level of care and the need was not temporary.
- By 2006, Herriot had dementia, was largely non-ambulatory, and required 24-hour care; after hospitalization, the facility determined she required a permanent transfer to assisted living or skilled nursing.
- Herriot refused to move and proposed to remain in independent living by hiring privately funded, round-the-clock aides to provide all necessary care.
- The facility rejected the proposal, stating it had a non-delegable duty to assess and provide appropriate care consistent with licensing requirements and its government-approved contract, and offered placement within assisted living or skilled nursing instead.

## Issues

1. Whether reconsideration was warranted of an earlier ruling that the requested accommodation (remaining in independent living with private 24-hour aides) was not reasonable under the FHAA because it would require the facility to violate non-delegable legal and contractual duties.
2. Whether the facility was entitled to summary judgment on the remaining ADA and negligence claims based on the same statutory, regulatory, and contractual constraints.

## Decision

- The court denied Herriot’s motion for reconsideration.
- The court granted the facility’s motion for summary judgment on the remaining ADA and negligence claims.
- The court entered judgment for the facility on all claims.

## Legal Principles

- A reasonable accommodation under the FHAA is not required when it would require a housing provider to violate applicable law or regulatory obligations.
- A licensed CCRC’s responsibilities under California’s continuing-care regulatory scheme and its government-approved continuing care agreement may be treated as non-delegable duties to determine and provide appropriate levels of care.
- Contract provisions authorizing transfer to higher levels of care based on medical judgment can be enforced to require movement from independent living when a resident’s needs are not temporary.
- ADA reasonable-modification obligations do not compel changes that would conflict with lawful regulatory requirements governing care and safety in licensed senior-care settings.
- Negligence liability does not arise from insisting on a transfer when the facility is acting consistently with governing duties and the resident lacks evidence of unreasonable conduct creating a triable issue.

## Conclusion

The court held that a CCRC was not required by the FHAA or ADA to permit a resident with substantially increased care needs to remain in independent living with privately hired aides, because doing so would conflict with the facility’s non-delegable statutory and contract-based obligations to assess needs and provide care at the appropriate licensed level; it therefore denied reconsideration and granted summary judgment for the facility on all remaining claims.


Herriot v. Channing House, No. C 06-6323 JF (RS), 2009 WL 225418 (N.D. Cal. Jan. 29, 2009)