By MOTOKO RICH
Published: February 15, 2004
The New York Times
BOSTON Since a stroke four years ago, Esther Hurwitz, an 83-year-old retired bookkeeper, has difficulty reading, telling time and making change. Several times, her neighbors say, she has appeared at the front desk of her co-op apartment building after misplacing her false teeth or several hundred dollars in cash.
Family members concede it would be easier if their Aunt Ette was to move to an assisted-living community. But Ms. Hurwitz wants to stay in the home where she has lived for 35 years. And so they hired three home care assistants to look after her 18 hours a day, six days a week.
It is not enough, her neighbors say. In November, the co-op board filed to evict her, saying that by appearing "disoriented and confused" on several occasions, she had violated her co-op agreement.
While her family fights the eviction in Boston Housing Court, the pixieish, white-haired woman at the center of the dispute sounded bewildered. "I still can't understand what I did that was so terrible," she said recently, gazing out at Boston Harbor from her 28th-floor studio. "You just feel as though you are garbage."
Ms. Hurwitz is part of a growing group of elderly people who are fighting for the right to age how, and where, they choose. A host of challenges, social and legal, awaits them. Some apartment dwellers, with disabilities like diabetes or stroke-related complications, are facing eviction by landlords and co-op boards concerned about liability if a resident is hurt or harms the neighbors. Housing managers also say they are sometimes forced to make decisions for aging residents whose families have neglected them. The threat of eviction may be the only way to "prompt a response from a social service agency, the court or some family members," said Catherine F. Downing, a lawyer who is representing the co-op board in Ms. Hurwitz's building and who refused to comment directly on the case.
Even managers of housing designed for the elderly have begun to evict residents who need help walking or handling medications or daily tasks. On Feb. 4, former residents and a fair-housing advocacy group in San Antonio sued a retirement community that they said had evicted more than 20 tenants who were deemed disabled or who needed home health care.
The courts are only beginning to address the issue of when a landlord can order an elderly resident to leave. But advocates for the aged say housing managers increasingly are asserting in loco parentis, raising the question of who will decide when it is time for the elderly to move on. Will it be their families and physicians, or their landlords and neighbors?
In a recent survey of people 45 and older by AARP, the association for older Americans, 84 percent said they preferred to stay in their current home as long as possible.
F. Willis Caruso, director of the John Marshall Law School Fair Housing Clinic in Chicago, a center that defends people facing eviction, said, "The aging population is healthier, and people are not looking for assisted or nursing-home housing until they are well into the frail elderly years."
According to the Census Bureau, in 2000 there were 33 million people 65 and older living at home, roughly 94 percent of all people in that age bracket. Meanwhile, spending on home health care increased 23 percent, to $52.5 billion in 2002 from $42.7 billion in 1997, according to the Centers for Medicare and Medicaid Services, a government agency.
Pioneers on this legal frontier are supported by federal fair housing laws that bar discrimination against those with disabilities. Of the five cases involving elderly residents that Mr. Caruso's clinic has settled in the past three years, all have gone in favor of the tenant.
Michael Allen, a senior staff lawyer at the Judge David L. Bazelon Center for Mental Health Law in Washington, an advocacy group, said: "The basic things are pay the rent, don't trash the place and be nice to the neighbors. If you can do those things, then it's nobody's business if you need help to do it."
Susan Ann Silverstein, an AARP lawyer, said she got a call a week from an elderly resident threatened with eviction. She said the number of cases "vastly understates the problem" because most residents simply leave rather than fight.
"People don't know that this isn't something that they just need to accept," Ms. Silverstein said.
The Fair Housing Act allows landlords to evict tenants if they pose a "direct threat to the health or safety of other individuals" in the building.
Allen Lynch, a lawyer in Boston who represents senior housing providers, said landlords "have to balance the safety and well-being of the community versus the independent autonomy rights of the individual."
Some evictions, however, do not seem to be based on endangering others. Last year, in its first such case, the federal Department of Housing and Urban Development, which investigates complaints of Fair Housing Act violations, ordered a retirement community in Strawberry Point, Iowa, to let Melva Platt, 75, who is a quadriplegic, stay in her apartment. She has assistants who prepare meals and help her move between wheelchair and bed. The retirement community had argued that Ms. Platt was no longer able to live independently.
Carolyn Y. Peoples, the department's assistant secretary for fair housing and equal opportunity, said a landlord must adjust leases to allow disabled tenants "to live a decent quality of life."
That could include letting residents bring in home health care even if a lease requires the ability to live independently.
Some landlords have tried to evict elderly residents who do not need any help. Mr. Allen of the Bazelon Center recently represented Howard Symons, 82, who has diabetes. His landlord, Community Housing and Resources, tried to evict him from his apartment in Sanibel, Fla. According to court papers filed in Federal District Court in Fort Myers, the landlord was concerned about Mr. Symons's "physical deterioration" and said he no longer met the "independent living criteria."
Mr. Symons is an avid cyclist and tap-dancer who has lived in the apartment for 13 years without home health care. In October 2002, the landlord told him it would not renew his lease. Janis A. Hyatt, executive director of Community Housing, referred all questions to her lawyer, who did not return calls.
Mr. Symons sued the city, which had provided subsidies for his rent, as well as the landlord and Ms. Hyatt. In November, they agreed to extend Mr. Symons's lease and remove a clause requiring "the ability to live independently."
Mr. Symons said he was not surprised his landlords tried to oust him. "I don't know of any place where they like old people," he said. "This is endemic to our society. Get rid of Mom and get rid of Papa. We don't want them around."
In the case of Ms. Hurwitz in Boston, her family and co-op board each says it has her best interests at heart.
Ms. Hurwitz moved to Jamaicaway Tower in the 1960's. She bought her studio in 1980, filling it with colorful modern furniture.
But starting in 2001, her neighbors observed troubling incidents. According to court papers, the co-op board said she once left the stove on. On another occasion, Ms. Hurwitz took "a stack of cash" to a building concierge and asked him to hide it. After hearing of the problems, her family asked a companion, who was spending three nights a week with Ms. Hurwitz, to help her seven nights a week, and gradually added home care aides six days a week. Laurence Hurwitz, a nephew, said he had rigged the stove so his aunt could not turn it on herself and had arranged her bank account so its balance never exceeded $500.
Neighbors and co-op board members continued to record troubling behavior in public, and in July, the board notified Ms. Hurwitz of its intent to evict her. David Levy, president of the co-op board, would not comment on Ms. Hurwitz's case but said eviction was a last resort.
Tensions between landlords and aging residents have spilled over into housing marketed to older people as developers build so-called independent living complexes that do not offer health care on site.
A lawsuit filed this month in Federal District Court in San Antonio accuses a local retirement community, the Summit of Newforest, of evicting 20 residents it deemed mentally or physically disabled.
The complaint, which was filed by the Fair Housing Council of Greater San Antonio along with Inez Casaregola, 73, a former resident, and Clyde McCollogh, the son of a resident who is now dead, said tenants were subjected to questions like "Who was the president in the wheelchair?"
A revised lease, excerpted in the complaint, said all residents had to be able to "live safely without assistance or health care."
John P. Relman, a lawyer who is representing two evicted residents, said the community changed the lease because it wanted to attract "active seniors."
"They didn't want the image of people who had a health assistant coming in or people who were, in their view, too disabled," Mr. Relman said.
Earl Wade, chief executive of CRSA Holdings Inc., manager of the Summit of Newforest at the time of the eviction, said, "We were trying to make certain that we had people in the right environment and that they were safe."
The Fair Housing Act makes it illegal for housing providers to ask about health unless a resident requests a specialized service or facility, like a room large enough for a wheelchair. But some landlords still ask. Ginny Hoffman said she believed that because her 90-year-old mother, Edith Hoffman, disclosed her diabetes, hypertension and osteoporosis in an interview, the managers of Valley Village Retirement Community in San Jose, Calif., rejected her application.
Edith Hoffman supplied medical records and a doctor's statement saying she could live independently.
Mrs. Hoffman, who is suing the retirement home for discrimination in Federal District Court in San Jose, said a future landlord had no business asking about her health. "I was very unimpressed with the whole thing," she said.
Edward Garcia, a lawyer who is representing Church of the Valley Retirement Homes, which owns Valley Village, declined to comment.
Regardless of what the courts decide, Suzanne Modigliani, a geriatric care manager who oversees Ms. Hurwitz and has worked with the elderly for 15 years, believes there is a social stigma against elderly people. "People don't like reminders that they, or people who they love, will become infirm," she said.
Last month, Ms. Modigliani and Ms. Hurwitz sat side by side on a sofa in the studio, surrounded by art collected from her client's extensive travels. Ms. Hurwitz reminisced about how she cared for her mother until she died at home, as well as an aunt who lived alone into her late 90's.
"That," Ms. Hurwitz said firmly, "was the way I was brought up."