Assisted Living Programs: Discharges - Involuntary Discharges, Tenant Rights, Due Process, and Fair Housing Requirements

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1 Iowa Health Care Association Summer Quarterly Education June 10, 2015 Assisted Living Programs: Discharges - Involuntary Discharges, Tenant Rights, Due Process, and Fair Housing Requirements Kendall R. Watkins Davis, Brown, Koehn, Shors & Roberts, P.C th Street, Suite 1300 Des Moines, IA Phone: (515) Fax: (515) kenwatkins@davisbrownlaw.com ASSISTED LIVING PROGRAMS I. Legal Basis for Discharge from ALPs A. State Law - Iowa Code 231C.6 and 481 Iowa Administrative Code II. Basis for Discharges A. Non-payment B. Failure to Meet Occupancy Criteria 1. Program Initiated 2. Initiated based on a monitoring evaluation or complaint investigation conducted by DIA C. Failure to Comply with Other Provisions within the Occupancy Agreement III. Types of Discharges #

2 A. Thirty Day Notice - State regulations provide that at least a thirty-day notice of discharge must be provided to the resident for most discharges. B. Emergency Discharges - State law allow for an exception to the 30-day requirement if either of the following circumstances exists: 1. When the tenant's health status or behavior constitutes a substantial threat to the health or safety of the tenant, other tenants, or others, including when the tenant refuses to consent to relocation; or 2. When an emergency or a significant change in the tenant's condition results in the need for the provision of services that exceed the type or level of services included in the occupancy agreement and the necessary services cannot be safely provided by the assisted living program. [Source: Iowa Code 231C.5(2)(f)(1)]. IV. Discharge Notice - Program Initiated Discharge It is important that the discharge notice contain all of the following information. A. The notice should be addressed to the tenant or the tenant s representative (preferably both), reference the portion of the occupancy agreement that serves as the basis for the discharge. B. The reason for transfer C. Contact information for the tenant advocate. [Source 69.24(1)(a)]. D. A copy of the notice must be sent by certified mail to the tenant advocate. [Source 69.24(1)(b)]. V. Appeal From Program Initiated Notice of Discharge A. A tenant who is subject to an involuntary transfer shall have the right to an internal appeal of the transfer before the transfer occurs. [Source 69.24(1)(c)]. B. There are no regulations that establish the parameters of how an ALP s internal appeals process operates. ALPs are given broad discretion as to how to operate this internal appeals process. The program s internal appeals process should be set forth in detail in program policies and procedures provided to tenants at the time of admission. C. The appeals process should establish a timeline for filing an appeal (e.g. ten days from receipt of notice). The process should provide a means for the tenant to provide additional information to the program. The program can limit this additional information to a written submission. The process should also provide - 2 -

3 for a prompt response by the program following review of the provided information. D. Following the internal appeals process, if a program upholds the transfer decision, the tenant or tenant s legal representative may utilize other remedies authorized by law to contest the transfer. [Source 69.24(1)(d)]. VI. Discharges - Initiated Based on Monitoring Evaluation or Complaint Investigation Conducted by DIA [Source: 69.24(2)]. A. DIA shall notify the program, in writing, within 20 working days of the monitoring evaluation or complaint investigation, of the identification of any tenant(s) meeting occupancy and transfer criteria, as a part of the report of the findings. B. The program, each tenant identified, the tenant s legal representative, if applicable, and other providers of services to the tenant shall be notified of their opportunity to provide responses including: specific input, written comment, information, and documentation directly addressing any agreement or disagreement with the identification. C. If the ALP agrees with DIA s finding and the program begins involuntary transfer proceedings, the program s internal appeal process in subrule 69.24(1) shall be utilized for appeals. D. If the ALP does not agree with DIA s finding that the tenant exceeds admission and retention criteria, the program may collect and submit all responses to DIA, including those from other interested parties. In the program s response, the program shall identify the tenant, list the known responses from others, and note the program s agreement or disagreement with the responses from others. The program's response shall be submitted to DIA within 10 working days of the receipt of the notice. Other persons may also submit information directly to DIA. E. Within 10 working days of receipt of the program s response for each identified tenant, DIA shall consider the response and make a final finding regarding the continued retention of a tenant. If DIA agrees with the argument, the Department shall amend the report of regulatory insufficiencies. If DIA retains the regulatory insufficiency, DIA shall notify the program of the opportunity to appeal the report findings. F. If the program appeals DIA s decision, the tenant shall be allowed to continue living at the program until all administrative appeals have been exhausted. G. The program also has the option of requesting a waiver of criteria for retention of a tenant in a program. The request for waiver must be submitted within ten working days of the issuance of DIA s report

4 VII. Where is the Tenant Going to Go? A. On of the most significant issues that a program may face in seeking discharge is locating a health care provider that is willing to assume the admission of the resident. If discharge is based on non-payment or significant behavioral problems, it may be difficult if not impossible to locate a different provider who agrees to accept the resident. The Department will monitor a discharge action closely, and will not hesitate to cite a program, if there is evidence to suggest that a tenant has been dumped back on a family member, if there is inadequate evidence of careful discharge planning including securing proper care resources. Potential options may include discharge to different level of care provider (hospital, nursing facility, RCF, mental health institution, psychiatric facility; home with home health services arranged). If a discharge is based on a resident s violent behavior, some programs have called law enforcement, seeking arrest of the tenant. VIII. What if the Tenant Won t Leave? If following the involuntary discharge notice procedure (and use of grievance procedure, if requested) the tenant refused to leave the program, the ALP will be required to follow procedures set forth in the Uniform Landlord Tenant Act, and depending on the circumstance of the discharge give written notice of termination, notice to quit and/or a petition for forcible entry and detainer. These are legal procedures under Iowa law that gives a landlord the right with assistance of law enforcement to physically move the tenant and his/her belongings out of the program. You will need legal assistance if a discharge dispute reaches this point, which luckily occurs very infrequently. IX. Tenant Rights The Iowa Administrative Code provides a list and description of tenant rights that are required to be followed: Tenant rights. All tenants have the following rights: 67.3(1) To be treated with consideration, respect, and full recognition of personal dignity and autonomy. 67.3(2) To receive care, treatment and services which are adequate and appropriate. 67.3(3) To receive respect and privacy in the tenant s medical care program. Personal and medical records shall be confidential, and the written consent of the tenant shall be obtained for the records release to any individual, including family members, except as needed in case of the tenant s transfer to a health care facility or as required by law or a third-party payment contract

5 67.3(4) To be free from mental and physical abuse. 67.3(5) To receive from the manager and staff of the program a reasonable response to all requests. 67.3(6) To associate and communicate privately and without restriction with persons and groups of the tenant s choice, including the tenant advocate, on the tenant s initiative or on the initiative of the persons or groups at any reasonable hour. 67.3(7) To manage the tenant s own financial affairs unless a tenant s legal representative has been appointed for the purpose of managing the tenant s financial affairs. 67.3(8) To present grievances and recommend changes in program policies and services, personally or through other persons or in combination with others, to the program s staff or person in charge without fear of reprisal, restraint, interference, coercion, or discrimination. X. Key Issues of the Fair Housing Act Affecting Assisted Living Programs Background: Fair Housing law identifies certain classes that are legally protected from discrimination, including: race, color, national origin, religion, sex/gender, familial status, and disability. The law only prohibits discrimination based on inclusion in protected class, but not different treatment based on other factors (e.g. a program can deny an applicant because of insufficient income, regardless of the applicant s race, religion, etc., as the basis for the denial is not the protected class. A. Disability (Handicap): Regarding disability or handicap, Handicap means a physical or mental impairment which substantially limits one or more life activities. However, it does not include current, illegal use of or addiction to controlled substances. The FHA requires reasonable accommodation, and refusal to do so constitutes a violation. A resident has the right to hire live- in caregivers to live independently. Residents have the right to use motorized wheelchairs and scooters as long as they are following reasonable traffic and safety rules. Providers must consider any request by a resident or applicant with a disability for a reasonable accommodation (a waiver of, or a - 5 -

6 change to standard rules, policies, procedures, and eligibility criteria). An assistance animal, including a companion, therapy or comfort animal, is an example of a reasonable accommodation request. It is illegal for anyone who works for a provider to harass, threaten or intimidate a resident because he/she has exercised his/her rights to be free from discrimination based on protected class. If a resident is harassed by another resident on this basis, the provider has a legal obligation to investigate and remedy the problem. The FHA requires accommodation for a person with a handicap if it is (1)reasonable and (2) necessary to (3) afford the handicapped person equal opportunity to use and enjoy housing. B. Scooters and Motorized Mobility Devices Restrictions on time, place, and manner of use of motorized carts because of safety concerns are more acceptable than an outright prohibition of their use. U.S. v. Hillhaven (D. Utah 1997) The facility adopted a policy prohibiting motorized carts in crowded lobby areas around meal times due to safety concerns. Routes were established for motorized aides to enter the dining room and eat at tables near the exit. Several residents alleged the violated FHA. The Court upheld the facility s policy based upon the reasoning that time, place and manner restrictions to protect other residents safety were acceptable. Competency testing prior to or upon entering a facility should be avoided... WHY? Because it can appear to discourage occupancy by someone who is disabled/handicapped. Requiring motorized cart users to maintain liability insurance and/or damage deposits is a violation of the act. However, an after the fact charge for actual damage is acceptable. Make sure you craft your policies carefully

7 Reasonable rules requiring safe operation, speed limits, yielding to pedestrians, and parking will generally be acceptable. Time place and manner provisions will depend upon each factual circumstance. US v. Twining Services Corp (2005) Twining banned use of wheelchairs and scooters in 2 of 3 different residential dining rooms Restricted their use in common areas Required indemnification of Twining Required tenants to submit to annual evaluation and training regardless of driving record. Consent Order reached with DOJ. Injunctive Relief Non Discrimination policy required. $17,5000 to aggrieved resident. $67,500 to pay additional aggrieved persons who may have suffered as a result of these policies. $7500 Civil Penalty paid to U.S. Other penalties including notices to victims, record keeping and monitoring C. Service Animals: Another common reasonable accommodation request is for an assistance animal. Both service animals and companion or emotional support animals (aka comfort, support, therapy animals) are legitimate reasonable accommodations under fair housing law. These can include, but are not limited to, seeing eye animals, hearing ear animals, animals that assist with balance, animals that warn humans about seizures, migraines and low blood sugar levels, and animals that can help humans deal with clinical anxiety and depression. While a provider may certainly have a no pets policy, a resident with a disability may request a reasonable accommodation to that policy to have an assistance animal. In this case, the provider cannot charge a pet deposit, just as a deposit cannot be charged for a wheelchair or scooter. The assistance animal is necessary for the individual to live in the housing and a deposit would present a barrier to equal housing access with other residents. Of course, if the animal causes damage, the resident would be responsible for paying for it and if the animal violates the lease agreement or contract (disturbing other residents, etc.), the resident is responsible and may risk termination if the problem is not corrected

8 SAMPLE ASSISTED LIVING PROGRAM Involuntary Transfer Notice Letter - Occupancy Criteria - Negative Behaviors (Name and Address of Tenant) Date Re: Transfer and Discharge Dear (name of tenant) [ALP] operates a certified assisted living program pursuant to regulations enforced by the Department of Inspections & Appeals. In order to maintain certification, [ALP Program] is required to maintain compliance with all applicable regulations. The Department of Inspections & Appeals, within the regulations adopted for assisted living programs, has adopted occupancy and discharge criteria for tenants. Specifically pursuant to 481 Iowa Administrative Code 69.23(1) an assisted living program shall not knowingly retain a tenant who is dangerous to self or other tenants or staff, including but not limited to a tenant who displays unmanageable verbal abuse or aggression; or displays behavior that places another tenant at risk. In addition, pursuant to the Resident Agreement (hereinafter Agreement ) executed on your behalf on [insert date], occupancy criteria are incorporated within the Agreement. Those criteria indicate that [ALP] shall not retain a tenant [insert specific occupancy criteria in question]. You no longer comply with the occupancy criteria based on [insert factual basis - e.g. negative behaviors, unmanageable incontinence, transfer needs]. Based on the determination that you do not meet occupancy criteria established within the regulations and the occupancy agreement, arrangements need to be made for your transfer to a health care provider that is licensed to meet your current care needs, no later than [insert date 30 days from date of letter]. If you disagree with the Program s decision to transfer you from the assisted living program, you have the right, pursuant to 481 Iowa Administrative Code 69.24, to contest the transfer by utilizing the program s internal appeal process. In your appeal, you must set forth the basis for your argument as to why the transfer decision was incorrect. You must submit any written materials in support of your argument within ten (10) working days of receipt of this letter

9 Upon submission of the written materials, [ALP] will review the material and argument to determine whether the supplemental material changes [ALP s] determination that the transfer was warranted. A decision will be issued by [ALP] within five working days of the submission of the written material by the tenant. A Tenant or Tenant s Representative may contact the Long-Term Care Ombudsman from the Iowa Department of Elder Affairs for assistance relating to the proposed involuntary transfer at (toll free) or by writing to: Long-Term Care Ombudsman Iowa Department of Elder Affairs Jessie M. Parker Building 510 E. 12 th Street, Suite 2 Des Moines, Iowa If you have any questions regarding this letter, do not hesitate to contact me. Sincerely, Copy to: (responsible family member) Long Term Care Ombudsman Jessie M. Parker Building 510 E. 12th Street, Suite 2 Des Moines, IA Administrator - 9 -

10 SAMPLE ASSISTED LIVING PROGRAM Involuntary Transfer Notice Letter - Emergency Discharge Date (Name and Address of Tenant) Re: Transfer Dear (name of tenant) [ALP] operates a certified assisted living program pursuant to regulations enforced by the Department of Inspections & Appeals. In order to maintain certification, [ALP] is required to maintain compliance with all applicable regulations. The Department of Inspections & Appeals, within the regulations adopted for assisted living programs, has adopted occupancy and discharge criteria for tenants. Specifically pursuant to 481 Iowa Administrative Code 69.23(1)(c) and (d) an assisted living program shall not knowingly retain a tenant who is dangerous to self or is in an acute stage of uncontrolled mental illness. In addition, pursuant to the occupancy agreement (hereinafter Agreement ) executed on your behalf on [insert date], occupancy criteria noted above are incorporated within the Agreement. You no longer comply with the occupancy criteria based on your continuing suicidal behaviors. Based on the determination that you do not meet occupancy criteria established within the regulations and the occupancy agreement, arrangements need to be made for your transfer to a health care provider that is licensed to meet your current care needs. While under normal circumstances, an assisted living program must provide thirty (30) days written notice, this requirement does not apply in circumstances where: (1) the tenant s health status or behavior constitutes a substantial threat to the health or safety of the tenant, other tenants, or others, including when the tenant refuses to consent to relocation. (2) When an emergency or a significant change in the tenant s condition results in the need for the provision of services that exceed the type or level of services included in the occupancy agreement and the necessary services cannot be safely provided by the assisted living program

11 It is the belief of [ALP] that your recent change in your condition manifested in your behaviors (describe: e.g. suicidal, assaults towards other tenants, etc.) constitute both a substantial threat to your health and safety, and that your care needs exceed the level of care that is allowed in assisted living. You were transferred to (name of hospital) on (insert date). If you disagree with the [ALP] s decision to transfer you from the assisted living program, you have the right, pursuant to 481 Iowa Administrative Code 69.24, to contest the transfer by utilizing the program s internal appeal process. In your appeal, you must set forth the basis for your argument as to why the transfer decision was incorrect. You must submit any written materials in support of your argument within ten (10) working days of receipt of this letter. Upon submission of the written materials, Petersen Commons will review the material and argument to determine whether the supplemental material changes [ALP] s determination that the transfer was warranted. A decision will be issued by [ALP] within five working days of the submission of the written material by the tenant. A Tenant or Tenant s Representative may contact the Long-Term Care Ombudsman from the Iowa Department of Elder Affairs for assistance relating to the proposed involuntary transfer at (toll free) or by writing to: Long-Term Care Ombudsman Iowa Department of Elder Affairs Jessie M. Parker Building 510 E. 12 th Street, Suite 2 Des Moines, Iowa If you have any questions regarding this letter, do not hesitate to contact me. Sincerely, Copy to: Administrator (responsible family member) Long Term Care Ombudsman Jessie M. Parker Building 510 E. 12th Street, Suite 2 Des Moines, IA

12 SAMPLE ASSISTED LIVING PROGRAM Involuntary Transfer Notice Letter - Nonpayment (Name and Address of Tenant) Date Re: Transfer and Discharge Dear (name of tenant) This letter is written pursuant to Iowa Code 231C.6, 481 Iowa Administrative Code Section and 25.23(6) relating to involuntary transfer. Senior Suites is seeking to transfer you on (insert date must be no less than 30 days from date letter will be presented to tenant) for non-payment of assisted living services totaling $(amount) for the period from (date) through (date) (See attached Exhibit A ). If you disagree with [ALP s] decision to transfer you from your assisted living unit for nonpayment of fees, you have the right to file a written request for an internal appeal and request a review of the transfer decision pursuant to 481 Iowa Administrative Code 69.24(1)(c) and Iowa Code 231C.6. In your written request for review, you must set forth the basis for your argument as to why the transfer decision based on non-payment was incorrect. You must submit your written request for review and any written materials in support of your argument within ten (10) working days of receipt of this letter. Upon submission of the written materials, [ALP] will review the material and argument to determine whether the supplemental material changes [ALP s] determination that the transfer is warranted. A decision will be issued by [ALP] within five (5) working days of the submission of the written material by the tenant. A Tenant or Tenant s Representative may contact the Long-Term Care Ombudsman from the Iowa Department of Elder Affairs for assistance relating to the proposed involuntary transfer at (toll free) or by writing to: Long-Term Care Ombudsman Iowa Department of Elder Affairs Jessie M. Parker Building 510 E. 12 th Street, Suite 2 Des Moines, Iowa

13 If you have any questions regarding this letter, do not hesitate to contact me. Sincerely, Copy to: (responsible family member) (BY CERTIFIED MAIL) Long-Term Care Ombudsman Iowa Department of Elder Affairs Jessie M. Parker Building 510 E. 12 th Street, Suite 2 Des Moines, Iowa (BY CERTIFIED MAIL)

14 [NAME OF PROGRAM] POLICY AND PROCEDURE FOR MOTORIZED CARTS POLICY: A Motorized Cart is an electric wheelchair, motorized cart, scooter, or similar device operated by a disabled Tenant (Hereinafter Motorized Cart ). [Name of Program] (hereinafter Program ) recognize the rights of Tenants with disabilities to use Motorized Carts. The Program however, may limit the use of Motorized Carts when such use has the risk of endangering a Tenant or is likely to result in substantial damage to the Program. Therefore, the Program Communities reserve the right to: 1) impose reasonable limitations on the use of Motorized Carts; or 2) prohibit a Tenant from using a Motorized Cart in the Program, when such use has the risk of endangering a Tenant or is likely to result in substantial physical damage to the Program s building and furnishings. PROCEDURES: 1. Tenants who use a Motorized Cart must observe the Program s Rules for the Operation of Motorized Carts, attached. Tenants will be given a copy of this Policy and Procedure and the Rules, and must sign that they have read, understand, and will comply with this Policy and Procedure and the Rules for the Operation of Motorized Carts. Failure to comply with the Rules for the Operation of Motorized Carts may result in the Tenant being restricted in the use of a Motorized Cart or being barred from using a Motorized Cart. 2. Any Tenant who uses a Motorized Cart at the Program will be required to register the Motorized Cart with the Administrator s Office to assist in identifying any Motorized Cart left unattended. 3. Where the Program has identified that a Tenant has failed to operate the Motorized Cart safely or fails to comply with the Rules for the Operation of Motorized Carts which results in a direct threat to others or property based on reliable information and evidence (e.g., current conduct, clear inability to safely operate the Motorized Cart or a recent history of accidents), the Program will conduct an assessment to determine the Tenant s overall ability to safely use a Motorized Cart. As part of the assessment, the Program may require the Tenant to demonstrate his/her ability complete a driving demonstration to demonstrate that he/she can safely operate the Motorized Cart in the Program. 4. If, in the reasonable judgment of the Program staff, the demonstration indicates that the Tenant is unable operate the Motorized Cart safely, the Program may impose reasonable limitations on the Tenant s operation of the Motorized Cart. Such restrictions shall address the deficits demonstrated by the Tenant and shall be as liberal as possible while attempting to assure the safety of other individuals and the protection of Program property. If the Program, despite reasonable accommodation determines in its reasonable judgment, that the Tenant has continued to fail to comply with the Rules for the Operation of Motorized Carts and/or the Tenant s continued operation of the Motorized

15 Cart would pose a direct threat to the safety of any Tenant or the property of the Program, he/she may bar the Tenant from continuing to use the Motorized Cart. 5. The Administrator shall share the determination with the Tenant, allow the Tenant to seek guidance from his or her physician or other health-care provider to determine whether another accommodation can assist him/her in being able to use the Motorized Cart safely. 6. Any Tenant who uses a Motorized Cart at the Program is advised, but is not required, to obtain liability insurance, as the Tenant may be held liable for damage to property or harm to others caused by his or her operation of the Motorized Cart. 7. If the Tenant fails to comply with any limitations placed on them by the Administrator, or fails to follow recommendations or prescriptions made by a health-care provider that would allow them to use the Motorized Cart safely, and the Tenant s use of the Motorized Cart presents a direct threat to the safety of others or the likelihood of substantial property damage, the Tenant may be required to use alternative means of transportation (e.g., non-motorized wheelchair). If the Tenant refuses to use a nonmotorized wheelchair, the Program may ask the Tenant to move out. RULES FOR MOTORIZED CARTS and AGREEMENT TO INDEMNIFY 1. No Motorized Cart shall ever be operated at a speed that exceeds the walking pace of any individual in the vicinity of the Motorized Cart. Further, the Tenant must allow for a three-foot clearance from all pedestrians around and from the Motorized Cart. If there are no pedestrians in the vicinity of the Motorized Cart, the speed of the Motorized Cart may not exceed 4 miles per hour. 2. If a Tenant s medical condition requires that he or she use the Motorized Cart to enter the dining room, the Tenant must operate the Motorized Cart at the lowest possible speed. If the Tenant cannot enter the dining room at a speed acceptable to keep others safe, the Tenant shall hand wheel themselves into the dining room. The Motorized Cart must be in the off position at all times while parked in the dining room. 3. The Motorized Cart must be operated at all times in a safe manner and with due care to avoid causing any personal injury, death, or property damage. The Tenant must be careful to avoid persons who are entering or leaving their apartment units, coming around corners, or while on an elevator. 4. No Tenant may operate a Motorized Cart if the Tenant s ability to operate the Cart safely is impaired by alcohol or any other intoxicating substance or by medication that the Tenant may be taking

16 5. The Motorized Cart must be driven in the center of the hallway. The Tenant must completely stop at all hallway intersections, look all ways and make sure it is clear before slowly proceeding through the intersection. 6. The Motorized Cart must not be left unattended near any entrances, exits, or intersections. When the Tenant retires to his or her apartment unit, he or she must also bring the Motorized Cart inside the apartment. The purpose of this is to ensure that there is no impediment to emergency evacuation of personnel and Tenants have a clear passageway. 7. Motorized Cart batteries may not be charged in a public outlet and Tenants may bring into the Program only Motorized Carts that have sealed batteries. 8. If using bus transportation provided or made available by the Program, the Tenant must transfer to sit in the bus seat if medically capable. Any Tenant not having the capability of transferring into a bus seat must make sure that their Motorized Cart is properly secured to the bus and locked in place. The Tenant must also wear a seat belt while sitting in their Motorized Cart. Seat belts for Motorized Carts are available over the internet or can be purchased through the Program. The bus attendant will store Tenant s Motorized Cart where he believes appropriate until the Tenant reaches their destination. Sitting on or in a Motorized Cart even with safety straps is not safe in an emergency stop or turn. If Tenant elects to stay in or on the Motorized Cart, they do so with the knowledge and accept the risk that they may suffer harm, whether or not they can transfer into a seat. Tenant further releases the Program and its agents for any and all claims arising out of Tenant s choice to remain seated in a motorized Cart during transport. Any Tenant not allowing staff or the bus attendant to secure their Motorized Cart or themselves, if necessary, will need to leave the bus. 9. When using a Motorized Cart, if not able to transfer, the Tenant must always be pushed on and off the Program s bus lift, or up and back down the ramp, by the bus attendant, a Program staff member, or the Tenant s aide or family while sitting in the Motorized Cart. The Motorized Cart must not have power turned on when entering, exiting, or on the bus. 10. The Motorized Cart must be used safely at all times. The Program may impose reasonable limitations on use if the Motorized Cart if the Tenant is or may be unable to operate the Motorized Cart safely. Operation of the Motorized Cart in a way that poses a direct threat to others safety, or the danger of substantial property damage, may result in loss of use of the Motorized Cart

17 11. The Tenant agrees to indemnify, defend and hold Program, Program s agents, and employees, harmless from and against any actions, suits, claims, and demands (including legal fees, costs, and expenses) arising from damage or injury to any person or property of others arising out of or pertaining to any actions or inactions in connection with the Tenant s operation of a Motorized Cart and any failure to comply with any of the provisions of the use of or possession of a Motorized Cart on or about the Program. I HAVE BEEN GIVEN A COPY OF THE PROGRAM S POLICY AND PROCEDURE AND RULES REGARDING MOTORIZED CARTS and AGREEMENT TO INDEMNIFY. I HAVE READ AND UNDERSTAND THE POLICY AND PROCEDURE AND THESE RULES AND AGREE TO COMPLY WITH THEM. Tenant s Signature Tenant s Name (please print) Date

18 [NAME OF PROGRAM] For Internal Management Use Only MOTORIZED CARTS ASSESSMENT AND DEMONSTRATION GUIDELINES All consideration for the ability to use a Motorized Cart in a Program should be based on a customized assessment and demonstration of the individual Tenant s mental and physical condition and to any difficulties operating the Motorized Cart that may have been observed. The purpose of the customized assessment and demonstration is to determine more precisely the factors that may be causing, or have the potential to cause, the Tenant to operate the Motorized Cart in an unsafe manner and to eliminate those factors, if possible, so the Tenant can continue using his/her Motorized Cart in the Program. The assessment and demonstration is simple and reasonable. For example, it is appropriate to ask the Tenant to: o Demonstrate his or her ability to put the Motorized Cart into forward and reverse at the appropriate times or promptly on command. o Operate the Motorized Cart in a common area of the Program that is furnished or where walkers or objects are placed, to demonstrate the Tenant s ability to maneuver the Motorized Cart appropriately. o Demonstrate the ability to judge the distance around the Motorized Cart and to enter and exit elevators safely. o Any other reasonable test based on specific behaviors of the Tenant or on observed specific problems with the Tenant s operation of the Motorized Cart. Such tests may require the Tenant to visit their eye doctor for an examination, visit their physician for a physical, discuss with their physician about certain interference with medications and driving, etc. The primary purpose of the assessment and demonstration is to determine whether the Tenant can operate the Motorized Cart safely. The assessment and demonstration may also be helpful in determining what limitations the Program may need to impose on the Tenant s operation of the Motorized Cart, if limitations are necessary to promote the safety of others. Results of all assessments and tests should be documented, to include what was done and the results of the assessment