Fighting an Assisted Living Discharge

Takeaways

• Assisted living facilities (ALFs) often evict or refuse to admit Medicaid-eligible individuals. Unlike nursing homes, ALFs are not subject to federal rules protecting residents from involuntary discharge.
• Residents facing eviction from an ALF should consult with a local elder law attorney.

Every year, thousands of assisted living facility (ALF) residents suddenly find themselves facing eviction when their health worsens. It is also not unusual for facilities to kick out or refuse to admit people who are eligible for Medicaid, even though these facilities are approved to participate in Medicaid.

Unlike nursing homes, which are subject to federal rules that protect residents from involuntary transfer and discharge, ALFs are generally not regulated by the federal government. Instead, their oversight is left to the states, which have considerable discretion about who they admit and discharge, and on what grounds an involuntary discharge is permitted.

Although there is no single, surefire way to handle a discharge from an assisted living facility, there are some things you can try. Consulting with an elder law attorney in the state where the facility is located is highly recommended if you or a loved one is facing a potential discharge.

“We Can’t Take Care of You Any Longer”

Approximately 29,000 assisted living facilities in the United States currently provide care to more than 800,000 residents.

Care at an assisted living community falls somewhere between in-home care and a nursing home. Residents typically have access to such services as meals, help with personal care and medications, housekeeping and laundry, social activities, and 24-hour supervision.

Most residents pay for assisted living out-of-pocket. Medicare doesn’t cover ALFs, but Medicaid and long-term care insurance may cover some parts of assisted living.

Federal Medicaid law, for example, allows states to offer home and community-based services (HCBS), including assisting living services. Under this deal, Medicaid pays for the assisted living services, while the resident pays room and board costs. The average cost of assisted living is $4,000 to $5,000 per month.

Assisted living residents often will eventually need a higher level of care. Research shows that a significant portion of them suffer from some type of cognitive impairment on top of co-occurring chronic illnesses.

Some assisted living facilities are part of a larger facility that also offers higher care levels, such as skilled nursing care and memory care. An ALF resident whose health worsens may be moved into an area of the facility that better meets their care needs. However, some facilities may tell them they must move out because the facility can no longer meet their needs.

According to KFF Health News, these involuntary discharges or evictions are common practice at ALFs across the country, with facilities essentially telling residents “we can’t take care of you any longer.” Evictions are the number one grievance about ALFs filed with long-term care ombudsmen, says KFF.

What’s worse, Justice in Aging told KFF, is that residents and their families usually have little recourse when facing an eviction because assisted living is governed at the state level, and state regulations tend to be loosely drafted, “allowing facilities considerable flexibility in determining who they admit as residents, the care they’re prepared to give and when an eviction is warranted.”

ALFs frequently base an eviction on the determination that the facility can no longer provide the care that a resident requires — a standard that gives them wide latitude to decide when to discharge a resident.

Unlike nursing homes, ALFs are not subject to federal rules that require a facility to document why they can’t meet a resident’s care needs. ALF residents also lack other rights that nursing home residents have, including a standard appeals process and guaranteed safe discharge to another care setting.

Among the patchwork of state laws that regulate ALFs, few meet expert recommendations, such as limiting discharges to specific conditions, providing discharge notices, and appeal rights. Forty-five states and the District of Columbia require assisted living facilities to notify residents before involuntarily discharging them. However, the rules vary widely from state to state.

Some states, including Hawaii, South Dakota, Utah, and Virginia, have more narrowly defined discharge criteria and give residents who receive a discharge notice certain rights. Facilities in Hawaii, for example, must offer residents an “opportunity of an informal conference if requested, in writing, within 10 days of receipt of discharge notice.” Utah residents may contest a discharge at an informal conference. Virginia’s policy simply states that the facility must “assist the resident and his legal representative, if any, in the discharge or transfer process.”

But in general, assisted living facilities have a great deal of flexibility to decide when to discharge a resident. In addition to claiming that the resident’s medical needs exceed the facility’s ability to provide care, the facility may justify an involuntary discharge on the grounds that the resident’s behavior is disruptive or harmful to other residents or staff, the resident fails to pay their bills, the facility is closing, or the resident violated the admission agreement.

Ways to Fight an Assisted Living Facility Discharge

Almost all states require facilities to give residents a notice of discharge. Once the notice is delivered, a resident may have a month or less to successfully fight back against the discharge order.

Residents and their families should understand that, in most cases, the chances of getting an eviction notice overturned are slim. However, because state laws regulating assisted living facilities are often vague, residents can use this to their advantage.

The first place to look is the assisted facility resident agreement, a contract between the resident and the facility that outlines the rights and responsibilities of both parties. This document covers things like the services provided and the fee schedule, as well as the requirements to be admitted and remain a resident, discharge policies, and grievance procedures.

Resident agreements must comply with state laws about assisted living facilities. A facility can’t set eviction standards that fall short of state law requirements, but they can give residents more eviction rights than are permitted under state law. While this is unlikely, it’s worth going over the contract with an attorney to see what state- and facility-specific options are available to a resident facing an eviction order.

Here are some other strategies for fighting an involuntary assisted living discharge:

• Stay put, if possible. In a few states — including Massachusetts, New York, and Iowa — assisted living discharge is considered an eviction and is handled under landlord-tenant law. That means the facility must go to court before it can evict a resident, who will have the chance to argue that the eviction is not fair.
• In other states, it’s an open question whether an assisted living discharge is an eviction. Again, because the rules are vague, the facility may not know what to do if a resident does not leave, and staying put could shift the balance of power. The facility would likely be forced to get a court order to move the resident out, giving the resident more time to dispute the discharge.
• States with procedures allowing residents to object to a discharge may have more options. Depending on state law, a resident could be entitled to an informal meeting with a staff member or administrator who made the discharge decision, or a more formal administrative hearing.
• Residents might also have recourse through the state agency that licenses and regulates assisted living. Each state has a designed regulatory body for ALFs that conducts inspections and investigates resident complaints. If a facility attempts to discharge a resident after they filed a complaint, it could be considered retaliation and therefore illegal.
• A resident may be able to use federal anti-discrimination laws to challenge the discharge. The Americans with Disabilities Act, the Fair Housing Amendments Act of 1988, and Section 504 of the Rehabilitation Act all protect tenants against discrimination on the basis of a physical or mental disability. Landlords must reasonably accommodate a disability unless it would cause an undue hardship.
  
  For example, if the reason cited for a discharge is that the resident now uses a wheelchair and the assisted living apartment lacks ramps, the resident may be able to argue that the landlord must install the ramps as a reasonable accommodation. Anti-discrimination law is complex and legal arguments based on discriminatory practices require the assistance of a lawyer.
• Another option at the federal level may be available to residents whose assisted living is paid for by Medicaid. At facilities that receive Medicaid funding through an HCBS Waiver, a resident must have the same eviction protections that tenants have under landlord-tenant law in that state, county, and city. If landlord-tenant eviction protections under state or local law do not apply to HCBS-covered residents in assisted living facilities, the state must offer “comparable” protections. These protections could potentially include administrative hearing procedures.

How an Elder Law Attorney Can Help

Assisted living facilities have a great deal of leeway to discharge residents, but they cannot do so arbitrarily. A National Center for Assisted Living report summarizes which state agency licenses assisted living facilities and the state’s “limitation of services,” including its discharge policy. You can file a complaint about an ALF with the licensing agency or the long-term care ombudsman program in your state.

The facility could be subject to notice requirements, appeals processes, and contractual limitations that work to your advantage, allowing you to remain at the facility or buying you time to seek an appropriate transfer. Review the discharge notice, gather any relevant documentation (e.g., medical records, financial records, and communications with the facility), and try to negotiate a resolution.

If this does not solve the issue, you can try filing a complaint or appeal or may want to seek legal assistance from a local elder law attorney.

For related reading regarding long-term care services for older adults, check out the following:

• Activities of Daily Living (ADLs) and the Need for Long-Term Care
• Basics on Medicare Home Health Coverage
• What Are CCRCs?