OPA: Consent Decree: Laflamme et. al., v. New Horizons, Inc., et. al.

CIVIL NO. 3:06 CV 1809 (JBA)
   WHEREAS, New Horizons, Inc. operates New Horizons Village (“NHV”), a residential community for persons with physical disabilities in Unionville, Connecticut; and

   WHEREAS, the plaintiffs in the above-captioned action, State of Connecticut Office of Protection and Advocacy for Person’s with Disabilities (“OPA”) and Denise Laflamme, have asserted claims against the defendants, New Horizons, Inc. and Michael Shaw (collectively, “New Horizons”), alleging violations of the Fair Housing Act, as amended, and the District Court has ruled in Denise Laflamme’s favor on her motion for partial summary judgment; and

   WHEREAS, the parties concede that, had OPA moved for summary judgment, the Court would have granted such a motion; and

   WHEREAS, the parties concede that OPA is a necessary party to this consent decree; and

   WHEREAS, New Horizons has denied, continues to deny, and does not admit liability on any claim asserted by any plaintiff; and

   WHEREAS, the parties wish to resolve this matter without further litigation or litigation expense; and

   WHEREAS, the parties have agreed to enter into a consent decree in lieu of a final judgment on the merits; and

   WHEREAS, the parties have waived their right to a trial by jury; and

   WHEREAS, New Horizons has waived its right to appeal the decisions of the District Court granting, in part, OPA’s motion for preliminary injunction and granting Denise Laflamme’s motion for partial summary judgment; and

   WHEREAS, the parties have reached a settlement of all monetary terms; and

   WHEREAS, the parties have exchanged satisfactory mutual releases.

NOW THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED, the parties having agreed without any admission of liability that New Horizons shall cause NHV to operate in accordance with the terms of this consent order:
1. The current requirement that applicants for tenancy at NHV disclose medical records shall be eliminated.  “Medical records” includes all records relating to any medical, psychiatric, psychological, social work, physical therapy or nutritional care.  With respect to all applications received from the date of this order, NHV may request only records relating to an applicant’s rental and credit history, whether he or she has a criminal record, whether he or she is a current user of illegal drugs or whether he or she poses a direct threat to others.
2. NHV shall not seek medical records to confirm an applicant’s status as a person with a severe physical disability.  If an applicant’s disability is not apparent, NHV may request only a letter from a licensed physician verifying whether the applicant is a person with a severe physical disability.
3. When considering an applicant for tenancy, NHV may consider (1) whether the applicant is a person with a severe physical disability; (2) the applicant’s rental and credit history, (3) whether the applicant has a criminal record; (4) whether the applicant is a current user of illegal drugs, (5) whether the applicant poses a direct threat to the safety or well being of others, and (6) any other lawful information.  Accepted applicants may be placed on a waiting list until a suitable apartment becomes available.
4. NHV may not seek medical records as a condition of continuing tenancy or require tenants to provide access to their medical records. 
5. The determination of how many hours of personal care assistance a tenant requires shall be made on a case by case basis.  In making that determination, NHV may discuss the tenant’s care needs with the tenant and set a level it deems appropriate.
6. Any request for additional personal care assistance shall be considered by NHV a request for a reasonable accommodation.  NHV may seek limited medical records only if the need for the accommodation is not readily apparent and only for the purpose of determining whether the requested accommodation is reasonable and required and, if so, the nature and extent of the required accommodation.  These records shall be limited to a period of three months prior to the date of the request, and shall be reviewed only by a registered nurse employed by New Horizons or, if no registered nurse is on staff, by the manager of the department involved in making determinations of care needs.
7. The “Tenant Selection Criteria” shall be changed to eliminate the current criteria that an applicant must have the ability and willingness to live without supervision, emotional stability with no manifestation of psychotic or pathological behavior, control of bodily functions through natural or adaptive means, and medical care needs which can ordinarily be accommodated through outpatient community resources.
8. The tenant selection committee interview process shall be revised to prohibit any inquiries into the nature of an applicant’s disabilities.
9. NHV’s revised lease and handbook are attached and incorporated into this Decree.
10. NHV shall contact all applicants rejected for tenancy since January 1, 2006 for reasons other than (1) financial inability to pay; (2) absence of a qualifying severe disability; (3) poor rental or tenancy history; (4) criminal record; (5) current illegal drug use or (6) direct threat to others.  NHV shall write to each of these persons at their last known address to provide the opportunity to reapply for residency in accordance with the terms this Decree.
11. A neutral monitor shall be appointed for a term of two years from the date of the entry of this Consent Decree or the appointment a monitor, whichever occurs later.  This term may be extended as provided for in paragraph 21 below.
12. The monitor shall be selected by mutual agreement of the parties.  If the parties fail to agree to a monitor, the Court shall appoint a monitor.
13. The monitor shall be independent and the monitor’s duty will be to the Court and not to any of the parties.
14. The parties may not engage in any ex parte communications with the monitor except as provided for in paragraphs 16 and 17 below.
15. All costs and fees related to the monitor shall be borne by New Horizons. The monitor shall be paid at a rate of not less than $250 per hour and not more than $400.00 per hour.
16. New Horizons shall provide the following information to the monitor on a monthly basis:
a. A list of all applications for tenancy and the disposition of those applications;
b. All the application materials of each applicant denied tenancy;
c. The file maintained by NHV for each tenant whose lease was terminated by NHV or who was asked to leave by NHV;
d. A list of all tenant requests for reasonable accommodations related to disability;
e. The file maintained by defendants for each tenant whose request for a reasonable accommodation was denied.
17. The monitor shall receive and review NHV’s monthly disclosures, which shall not be provided to the plaintiffs or their counsel.  Should the monitor believe that NHV’s disclosure reveals potential violations of this Decree, the monitor shall inform NHV and provide the relevant materials to plaintiff OPA and to counsel for Ms. Laflamme, Connecticut Fair Housing Center (“CFHC”) (collectively, “plaintiffs”).  The parties shall engage in conciliation with the assistance of the monitor.  Should the parties agree that there is no violation or should NHV cure the potential violation voluntarily, there will be no further action taken or report made by the monitor.
18. Should NHV dispute plaintiffs’ position, the monitor shall invite submissions by the parties and make a determination of whether NHV’s action is in violation of this Decree.  NHV shall be responsible for the fees of plaintiffs’ attorneys in preparing its submission to the monitor, which fees shall be based on a rate of $250 per hour.  This rate shall remain in effect for the duration of the monitoring period, regardless of whether it is extended, as provided below.
19. The monitor’s determination of disputed issues shall be final and disclosed to the parties within twenty-one calendar days of receipt of the submissions of the parties.  NHV shall cure all violations in accordance with the monitor’s determination and report this cure to the monitor and plaintiffs within twenty-one days of receipt of the monitor’s determination.
20. The monitor shall document these determinations in quarterly reports to the Court and to the parties.  If NHV is in compliance with its obligations under this Decree, the monitor shall so state.  If the monitor has made a determination that NHV has violated the Decree and failed to cure the violation before submission for a decision by the monitor, the monitor shall identify the violation.
21. In the event of a violation reported to the Court after adjudication by the monitor, the term of the agreement shall be extended by six months for each quarter in which the monitor has made a final determination of a violation, up to a limit of five years of total monitoring.
22. During the period of monitoring, NHV shall submit to the monitor for approval all proposed changes to its lease, tenant handbook, or rental policies.
23. The parties shall have the opportunity to file comments on the monitor’s quarterly report with the Court within 15 calendar days of the date the report is filed.
24. The plaintiffs retain the right to file a motion for contempt with the Court to enforce the Consent Decree.  Remedies for contempt may include extension of the monitoring period.
25. New Horizons retains the right to petition the Court to amend this Decree in the event of a clarification or change in governing law that is inconsistent with this Decree.

Dated and entered this day of __________, ____.    
District of Connecticut
THE UNDERSIGNED PARTIES enter into this Consent Decree in the matter of Laflamme et al. v. New Horizons, Inc. et al., (D. Conn.) relating to the operation of New Horizons Village in Unionville, Connecticut.
___________     ___________________________
Date                  Greg Kirschner
Connecticut Fair Housing Center
221 Main Street, Ste. 401
Hartford, CT 06106


____________    ____________________________
Date                   Nancy B. Alisberg
State of Connecticut Office of Protection and Advocacy for Persons with Disabilities
60B Weston Street
Hartford, CT 06120
_________   _____________________________
Date             Frank F. Coulom, Jr
Christopher F. Girard
Robinson & Cole, LLP
280 Trumbull Street
Hartford, CT 06103
NOTE:  To view a fully executed copy of the agreement along with all attachments, click here. (1,980kb Adobe File

Content Last Modified on 10/13/2009 2:44:40 PM