o the Administration move expeditiously and deliberately to plan and implement a White House Conference on Aging addressing the current and future needs of our elderly citizens.

AGE PREFERENCE IN HOUSING AND HEALTH CARE FOR THE ELDERLY

Not-for-profit health care and housing facilities for the elderly have established service to the aging as their mission, some with traditions of service going back more than 100 years. Their programs are designed to meet the special needs of the elderly. Local communities recognize these age-distinct facilities for the care they provide and acknowledge their special service niche for tax exempt status.

In the mid-1970s, the Older Americans Act was amended to establish the Age Discrimination Act of 1975. The purpose of the Age Discrimination Act was "to prohibit unreasonable discrimination on the basis of age in programs or activities receiving Federal financial assistance..." (emphasis added). Section 304 (b) (A) of the Age Discrimination Act recognized that age could continue to be used to establish eligibility for services where "such action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of such program or activity." Regulations promulgated by the U.S. Department of Health and Human Services (DHHS) were consistent with the intent of the Act. Federal programs such as Medicare (eligibility for persons over 65) and HUD Section 202 housing (for elderly over 62) acknowledge that age is a proper factor to be considered for certain programs receiving federal financial assistance.

During the past few years, advocates for several non-elderly groups have challenged some AAHA members' ability to continue specialized services for the elderly. While these non-elderly populations also have special health care and housing needs, they frequently seek placement in facilities for the elderly not because they prefer placement in these facilities, or because their special needs can be met there, but rather because there are so few resources available for addressing their needs appropriately. The Office of Civil Rights (OCR) in DHHS, has supported the claims of the non-elderly; in HUD, the Office of Fair Housing and Equal Opportunity (OFHEO), and the Office of Housing (OH), have failed to resolve the issue internally.

In the health arena, this support is based on OCR's reading that "normal program operations" for nursing homes consist solely of medical care, ignoring the social components of care which have been a trademark of not-for-profit homes, and which are, in fact, recognized and required by the nursing home reform provisions of the Omnibus Budget Reconciliation Act of 1987. Furthermore, no recognition has been given to the fact that continuing care retirement communities have obligations to residents to provide priority admission to nursing homes by virtue of legally binding contracts between the provider and their residents. In housing, OFHEO's support of the non-elderly is based on the inaccurate perception that the Fair Housing Amendments Act of 1988 eliminated the statutory service categories (including elderly-specific housing) established by the Housing Act of 1959, and reinforced by federal courts in Brecker v. Queens B'nai B'rith Housing Development Fund Co., Inc., 798 F.2d 52 (2d Cir. 1986) and Knudsen v. Eben Ezer, 815 F.2d 1243 (10th Cir. 1987).

Since the Age Discrimination Act of 1975 was enacted through the QAA Amendments of 1975, we believe that an amendment to the QAA would be an appropriate vehicle for clarifying providers' ability to provide age-specific housing and health care services to the elderly. We believe that such a clarification would be consistent with the following objectives listed in Title I, Section 101 of the QAA:

(3) Obtaining and maintaining suitable housing, independently selected, designed and located with reference to special needs and available at cost which older citizens can afford.

(4) Full restorative services for those who require institutional care, and a comprehensive array of community-based, long-term care services adequate to appropriately sustain older people in their communities and their homes.

(10) Freedom, independence, and free exercise of individual initiative in planning and managing their own lives, full participation in the planning and operation of community-based services and programs provided for their benefit, and protection against abuse, neglect, and exploitation.

SMB/121

45-625 (152)