NaCCRA Forum: General

I am one of several residents working to establish a Resident Association. Today, in the monthly town hall meeting our group was singled out as being disruptive of the residents of our CCRC. We were accused of soliciting residents to be members of the Resident Association and because it was "Soliciting" it was against the policies of our CCRC.

From the first meeting, 107 residents signed up to be to be in the association (out of 371 independent living residents). The CEO was very adamant that we would not be allowed to continue with our endeavors to create a Resident Association. Since to CEO has come on board, our community has not prospered. He has created an undertone of fear of reprisal if one steps out of line. Recently, he evicted a resident without any due process and to get her money back she would have to sign a Non-Disclosure Agreement.

I would greatly appreciate any and all advice.

Respectfully,

Bernie Henze

I am looking for advice as to how to continue with building a Resident Association.

To begin with, you probably should find out what are the state regulations, if any, governing CCRCs. If you could say what state you are in, that would help in garnering advice from other NaCCRA members in your state.

Also, what does your CCRC contract say? To understand the implications of this, you might need the help of an attorney knowledgeable about CCRCs. This is likely to be one specializing in elder law, who would probably be a member of the National Association of Elder Law Attorneys. See the link below for their directory.

https://www.naela.org/Web/Shared_Content/Directories/Find-a-Lawyer.aspx

An elder law attorney would also know if there is a state association of CCRC residents in your state.

Elder law attorneys may not have knowledge of civil laws intended to protect your right to free speech, privacy, discrimination, etc. I learned this from my experience trying to enforce residents right to privacy. If your CCRC is powerful enough you may not even find a competent attorney to take your case.

Enver -

Who is the commission in your sentence and what is their role, "The provider shall be required to provide to the organization a copy of all submissions to the Commission."

The first amendment civil laws you write about - such as free speech - applies to federal, state, and local government actors. Not private citizens, businesses, and organizations. Most CCRCs are private non-profit companies. Is there something in your state law that addresses this?

Linda Kilcrease

Resident of a CCRC

I was referring to the State Corporation Commission (SCC). All corporations in the Commonwealth of Virginia are subject to SCC jurisdiction. I was disappointed that VaCCRA did not voice concern when the SCC did not follow the procedure that a VaCCRA office holder provided to me. — https://scc.virginia.gov/getattachment/6c1252ee-0060-41c9-b3db-28fb3379cbb7/ccrcguide.pdf

Civil rights "are granted to every citizen of the United States by the constitution and all of its amendments. Equal protection is guaranteed to every one regardless of race, colour and creed."

Residents in Independent Living are “renters” — this is what our CCRC tells us when we have to respond to the U.S. Census every five years. In the Census there are only two choices renter or owner.

As Independent Living residents of CCRCs we are not employees of the CCRC. We retain all rights guaranteed "by the constitution and all of its amendments”.

Source: Black’s Law Dictionary — https://thelawdictionary.org/civil-rights/

Enver -

The 1st Amendment rights apply to public entities, like freedom of speech - not to private organizations, companies or people.

Can You Sue a Private Company for Constitutional Violations?

Generally speaking, the Constitution only applies to public entities: government officials, state and federal departments, law enforcement offices, etc. You generally can’t file a civil rights lawsuit against a social media company, for example, or a private store for violating your constitutional rights. (There may be other laws that you can use, but not the U.S. or state constitutions.) That said, sometimes private companies are doing government work. When a private company is under contract to the government, they can be sued for violating your constitutional rights.

Can You Sue a Private Company for Constitutional Violations? – Noel Caldwell, Attorney at Law PLLC

Linda Kilcrease

Resident of a CCRC

NEW ORGANIZATION

DEFENDING RESIDENTS’ RIGHTS

WE VALUE ETHICS, INTEGRITY, RULE OF LAW

APRA 

Ashby Ponds Residents Association

Now forming pursuant to: Code of Virginia § 38.2-4910. Right of organization.

A. Residents shall have the right of self-organization.

No retaliatory conduct shall be permitted against any resident for membership or participation in a residents' organization or for filing any complaint. The provider shall be required to provide to the organization a copy of all submissions to the Commission.

Get on APRA mailing list
 email APRA facilitator Enver Masud
apra2024@icloud.com

facilitator will NOT be an APRA officer

Hi Bernie

We are fortunate to live in a Maryland CCRC. Maryland law has strong provisions with respect to CCRCs, including requiring CCRCs to have a resident on their Board of Directors/Trustees. The law does not have much to say about CCRC Resident Associations/Councils per se but mentions them in passing in providing that the Board of Directors/Trustees of a CCRC must consult with the Resident Association, or, in the absence of an RA, with a reasonable number of representatives, not required to exceed fifteen, that the residents elect, about the selection of the resident Board member. https://law.justia.com/codes/maryland/2021/human-services/title-10/subtitle-4/part-iii/section-10-427/

A quick internet search indicates that Oklahoma does not have law dealing specifically with CCRCs. Oklahoma law has a Continuum of Care Act, which defines Continuum of Care Facility as a nursing home with an assisted living unit or adult day care. Nothing is said about Independent Living. Oklahoma law does appear to require nursing homes to have a Resident Advisory Council with quite stringent provisions. https://law.justia.com/codes/oklahoma/title-63/section-63-1-1922/ but I did not come across any such requirement for Assisted Living facilities and certainly nothing re CCRCs or Independent Living. Does your CCRC include a SNF and does that SNF have a Resident Advisory Council?

I did stumble across LeadingAgeOK, which has a page about CCRCs. The last item in their list of Factors to Consider is “Involvement through resident councils and grievance procedures in determining management practices”.  https://leadingageok.org/continuing-care/ I take that as evidence that at least some Oklahoma CCRCs have Resident Associations/Councils. Of course, Leading Age is a provider trade association. It would be interesting to know if your CCRC is a member. Check it out. https://laok.memberclicks.net/membership-directory#/   LeadingAge exists for the providers not residents, but if you have no one else to turn to, you could reach out to them for advice and see what they have to say.

Long term, you need to work on getting some protections into law. How are your relationships with your state senator? Do you all have contacts and connections with residents at other Oklahoma CCRCs. Here in Maryland roughly half of the state’s CCRCs have chapters of MaCCRA (Maryland Continuing Care Association. It is largely due to the efforts of MaCCRA over its 30 year history that Maryland has the laws it has. It is an ongoing struggle.  MaCCRA employs a professional lobbying firm to advise us and one of their main pieces of advice is to cultivate relationships with our state legislators. Most chapters regularly invite their district delegation to come speak to them once a year or so.

I wish you well.

Lorrie Rogers

Collington

After my posting, read your excellent response. Very much in line with my thoughts and research.

I searched the State website for something like a Bill of Rights for residents of a CCRC, but did not locate anything. There may be a reg but perhaps not. Oklahoma has few CCRCs. Here's a copy of websites that may help you:

1. https://canhr.org/wp-content/uploads/FS_RCFE_Resident_Councils.pdf, "Resident Councils in residential care/assisted living CCRCs," this is California based, but good info
2. https://www.cga.ct.gov/2015/act/pa/pdf/2015PA-00115-R00HB-05358-PA.pdf, Public Act. No. 15-115, An Act Establishing a Bill of Rights for Residents of Continuing-Care Retirement Communities. This is CT.

In any case, Resident councils are run by you, the residents. Residents have the right to organize and participate in these councils and the administration of the community, I would expect, would want to respond to concerns raised during the council meeting, would want to keep residents happy and well served. RCs serve as a liaison between admin and residents...

An attorney that specializes in health care, particularly with CCRCs, might help. Hope you don't have to go to this step.

NaCCRA itself adopted a Model Bill of Rights for CCRC residents in 2015. Some of its provisions, germane to the present discussion, are:

2. ”Establish, organize, fund, develop by-laws for, and operate a resident association whose purposes include, but are not limited to, representing the interests of the residents to the administration and the CCRC’s corporate governing board. “

3. “Freely assemble, with or without the participation of management and staff, as the residents in their judgement deem advisable, to enhance communication and information- sharing among the residents, and to promote active learning and discussion of issues facing the CCRC community."

12. “Raise issues concerning their own well-being, their quality of life, and the sufficiency of their involvement in community life and governance, and to advocate openly for issues of concern to them to be discussed and dealt with by the residents association, the administration, and the governing board, as appropriate.”

The full Bill of Rights can be found in the "Documents" section of the website.

Bernie,

In addition to the legal remedies that you see in the replies to your post, you also have soft power. All CCRCs, both for-profit and nonprofit must continuously attract new residents to thrive. More that half of the sales leads that become new residency contracts come from referrals by existing residents. Residents fund the operations even though they may have no explicit voice in governance. Resident satisfaction should be a priority for marketing and for the corporate board of directors.

One avenue open to you is to write to the corporate board expressing your concerns. The very fact that such a large percentage of residents want to be part of a residents' association is significant. Trying to suppress the group will not solve the marketing problem they represent. Consider getting the advice of an eldercare attorney. Document the facts. State how they affect you and your community, and set forth what a satisfactory resolution would be. This "resolution" isn't necessarily a specific action, but rather the condition that would result from whatever solution the Corporate Board chooses to adopt. Communicate these things to the Board and invite them to interact directly with residents.

Litigation is a slow process, and it is expensive. As residents, it is your community's resources that will pay both sides' lawyers. The interests of the Directors should be aligned with those of the Residents. Seek to have them act on behalf of the residents.

Richmond Shreve

NaCCRA Board Member

Forum Moderator

Given the situation as described by Bernard, there probably isn't any formal channel by which residents can communicate with the Board as a whole. They will need to ferret out the addresses for individual board members. However, if enough participate in this action, they won’t have to worry about being evicted.

Philippa Strahm, you can always communicate with any corporate Board by getting the address of their agent through your State Corporation Commission. This usually requires, (1) you write a letter to the Corporation, (2) place the letter in an envelope addressed to the Corporation, (3) place the envelope in another envelope, (4) send it U.S. mail return receipt.

Enver,

Would a nonprofit CCRC (501-c-3) be subject to the state corporation commission?

Correction to previous message: (4) send it THE CORPORATION'S AGENT via U.S. mail return receipt.

Our website twf.org which I created in 1995 is a 501(c)(3) corporation registered in the Commonwealth of Virginia (EIN 54-1755689).

Every 501(c)(3) corporation gets its nonprofit status from the U.S. government, files annual reports that you can download. States also require an annual report and nominal fee.

You can phone your State Corporation Commission and they will instruct you in how to get the records you seek.

Along these lines residents can go outside the community, outside the front gate, and demonstrate after calling the press to let them know. Of course this would be a last resort, because you don't want to harm the viability of your CCRC. I say this as a former labor organizer. This can be very effective to get management to listen, when they are not listening.

While state laws that govern CCRCs can create rights, such as a right to form an organization of residents, if they do not, then you must turn to your contract with the CCRC. For example, at my Erickson Seniopr Living CCRC: Wind Crest, the contract I signed provides: "Section 6. OTHER RESIDENT RIGHTS

6.1 Residents' Association. You have the right to participate fully in a Residents' Association, or other organization of residents by whatever name designated and to meet privately to conduct business." Should management not be happy with the organization formed "tough nuggies"! At Wind Crest, I formed a listserv system for each building, and a managers of them listserv. The Executive Director attempted to bully me to not form the system and when I pointed out it was private and came under the above clause and that I was an attorney, he backed off. Ironically, he recently met with me and the managers to ask whether he could send messages out via the system and apologized for his earlier behavior. He realizes that the system creates community.