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Canal Side Care Manor, LLC D/B/A Canal Side Care Manor and Lakshmi Kademani v. Pennsylvania Human Relations Commission

October 20, 2011

CANAL SIDE CARE MANOR, LLC D/B/A CANAL SIDE CARE MANOR AND LAKSHMI KADEMANI, PETITIONERS
v.
PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT



Submitted: June 6, 2011

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge (P.)HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE McCULLOUGH

Petitioners Canal Side Care Manor, LLC d/b/a Canal Side Care Manor (Canal Side) and its owner, Lakshmi Kademani (Kademani), appeal from the September 28, 2010, decision and order of the Pennsylvania Human Relations Commission (Commission), which held that Petitioners acted to remove G.D.*fn1 from Canal Side because she has HIV (human immunodeficiency virus), thereby violating sections 5(e) and (h) of the Pennsylvania Human Relations Act (PHRA).*fn2 The Commission awarded G.D. $50,000 in compensatory damages, with six percent interest, and imposed a $5,000 civil penalty. The Commission also ordered Petitioners to stop engaging in acts and practices that have the effect of denying equal housing opportunities because of an individual's disability and to establish policies that specifically state that Canal Side will admit otherwise qualified persons with HIV/AIDS.

This litigation commenced in April 2008 when Queen D., G.D.'s sister, filed a complaint on G.D.'s behalf alleging that Canal Side and Kademani intentionally discriminated against G.D. by denying her a housing accommodation because she has HIV.*fn3 Count I of the complaint alleged that Canal Side and Kademani violated section 5(h) of the PHRA*fn4 when they evicted G.D. because of her HIV. Count II alleged that Kademani aided and abetted Canal Side's eviction of her in violation of section 5(e) of PHRA.*fn5

The Commission appointed a three-member Hearing Panel which conducted a public hearing on the complaint and heard testimony from the following witnesses: G.D.; Queen D.; Robert M. Swenson, M.D., an expert in the field of infectious diseases; Jaime Bloss, a nurse-practitioner for the East-Community HIV/AIDS Organization; Aurora M. Anaya, an intensive case manager with Step by Step; Cherie Zettlemoyer, intensive case management supervisor at Step by Step; Kademani, owner and administrator of Canal Side; Ruth Sillers, a personal care aide at Canal Side; Sandra Dahlia, Canal Side's medication clerk; and Daneen Reese, a consultant with expertise in the field of case management.

The Hearing Panel issued a 51-page recommended decision setting forth 182 Findings of Fact. By final order dated September 28, 2010, the Commission adopted the Hearing Panel's Findings of Fact (FOF), Conclusions of Law, and Opinion as its own.

We summarize the Commission's findings briefly, as follows.

Canal Side is a 62-bed facility for men and women in Walnutport, Pennsylvania, and is registered by the Department of Public Welfare as a personal care home. Canal Side specializes in caring for low income individuals suffering from mental illness. Kademani is the sole owner and administrator of Canal Side. (FOF 2, 12, 51-55.)

G.D. is 36 years old; she is bi-polar and schizophrenic and was diagnosed with HIV in 1998. Also, at some point, G.D. developed shingles.*fn6 In 2007, G.D. was living in a group home run by Step by Step, a human services agency whose programming is designed to assist individuals move toward greater independent living. Clients at Step by Step are assisted by an Intensive Case Manager (ICM), who provides assistance with transportation, job searches and other things. Aurora Anaya (Anaya) was G.D.'s ICM. (FOF 18, 19, 23-26.)

While living at Step by Step's group home, G.D. experienced problems with basic daily living skills, hygiene, and urinary incontinence. G.D. wore a diaper every day, and she was put on a queuing program and a training program. Nevertheless, by December 2007, G.D.'s incontinence problem was severe. Ultimately, Step by Step staff, Anaya, and Queen D. agreed that they should seek placement for G.D. in a personal care home where she could receive a higher level of care and supervision. (FOF 31, 36-44, 49.)

Canal Side was contacted and eventually had an opening for G.D. Step by Step staff and Anaya facilitated G.D.'s placement arrangements with Kademani and her staff. During a December tour of Canal Side with G.D., Anaya completed pre-admission forms, and she failed to disclose the severity of G.D.'s incontinence problem. She also did not disclose G.D.'s HIV status because Step by Step policies prohibited her from doing so.

G.D. was moved into Canal Side on the morning of January 2, 2008. Again, Anaya was not forthcoming about G.D.'s incontinence problem. However, Canal Side staff members who unpacked G.D.'s clothes noticed that they were urine-soaked and washed them. By 2:30 p.m., G.D. had been placed on Canal Side's toileting plan, which entailed queuing G.D. to go to the bathroom periodically during the day and waking her every two hours through the night to use the bathroom. Anaya was to supply a complete medical evaluation for G.D. within the required 30-day period. (FOF 61-89, 91-94.)

Later that afternoon, Canal Side's medication clerk was checking in G.D.'s medications and became concerned that G.D. was taking Valtrex. G.D. was called to the medication room and said she was taking that medication because she had shingles and that she had shingles because she has HIV. (FOF 91-97.)

The medication clerk called an assistant administrator, who asked Kademani to come to the medication room and clarify G.D.'s HIV status. When asked, G.D. told Kademani that she takes medication for HIV. Kademani then told G.D. that she had 24 hours to leave the facility. (FOF 101-05; Commission's op. at 30-35.)

Thereafter, Kademani contacted Bloss, G.D.'s healthcare provider, and left a message that she had an urgent emergency situation. Bloss called back later that afternoon and was put on speakerphone in Kademani's office. Kademani told Bloss that she and her staff were concerned about HIV transmission and the risk that G.D. posed, and she specifically asked whether a person can get HIV from urine in clothing or on a chair. Bloss explained that G.D. was not a risk as long as universal precautions were used and, after the conversation, entered a note to G.D.'s file. Kademani also called Anaya and was extremely upset that Anaya had not disclosed G.D.'s HIV status; she told Anaya that G.D. had to leave Canal Side right away. Anaya got the impression from Kademani that her staff was walking out because they had touched G.D.'s soiled clothes. Kademani also indicated that she would soon be leaving the country. (FOF 96-127.)

Subsequently, Kademani advised Anaya's supervisor that she was unwilling to let G.D. stay at Canal Side until a transition plan was developed because her staff was threatening to quit due to their fear of contracting AIDS. When Kademani told Anaya's supervisor that Canal Side used universal precautions, the supervisor said the staff had no reason to be fearful. However, despite the supervisor's ...


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