Can They Kick Her Out of Assisted Living?

Jeff Regan received a shocking phone call from Atria Assisted Living to inform him that his aunt, Marilou Jones, 94, who has dementia, was being evicted. The family was informed by the nurse who phoned them that Marilou can’t transfer into memory care as the family had planned; and that she would be kicked out of the facility in 30 days.

The next day, a legal notice was delivered confirming her eviction, stating that it is because “she is non-weight bearing and requires the assistance of two staff members for all transfers.” Prior to the eviction decision, Marilou had fallen several times, been hospitalized for an irregular heartbeat, and started on a new blood thinner medication.

Regan and Marilou’s husband, William, were completely taken aback by the decision. After consulting with Atria staff about Marilou’s deteriorating health not long ago, her nephew and husband had arranged for her to be transferred to a dementia care unit at the facility. A room had been chosen, and furniture was even bought. William also recalled being told by a marketing manager when they first moved in that his wife could “age in place” there since a wide range of services — assisted living, memory care and hospice care — were available. Thinking that all the plans were in place for him and Marilou, they were completely shocked when Atria claimed that it could no longer meet her needs.

This Actually Happens A Lot. . . 

Although being evicted from assisted living sounds terrible, sadly, this action isn’t unusual. In fact, in 2016, 2,867 complaints of this kind were received by long-term care ombudsmen across the U.S. Across the country, assisted living facilities are evicting residents who have grown older and frail because they can no longer take care of them appropriately.

Why Do Evictions Generally Happen?

While state regulations vary, evictions are usually allowed for a variety of reasons including when:

• A resident fails to pay facility charges;
• A resident doesn’t follow a facility’s rules;
• A resident becomes a danger to self or others;
• A resident’s physician orders an emergency transfer from the home or for medical reasons;
• A facility converts to another use or closes;
• Management decides a resident’s needs exceed its ability to provide care.

Unlike nursing homes, assisted living facilities generally don’t have to document their efforts to provide care or demonstrate why they can’t provide an adequate level of assistance. In most states, when it comes to assisted living, there isn’t a clear path to appeal like there is with nursing homes. In fact, in nursing homes, there is a requirement that a safe discharge to another setting will be arranged — rights that nursing home residents have under federal legislation.

What Can Be Done to Lessen the Likelihood of Eviction?

Elder law attorneys and long-term care ombudsmen recommend several strategies to lessen your chances of eviction, as follows:

• Before moving into an assisted living community, ask careful questions about what the facility will and won’t do. For instance, you can inquire about what will happen if your loved one falls or his or her dementia continues to get worse. You can ask what would happen if your loved one’s incontinence worsens or if he or she needs someone to help her take medication. Asking these questions does not alway mean that the assisted living facility will truthfully answer them, but they might.
• Review the facility’s admissions agreement carefully, ideally with the help of an experienced elder law attorney, such as myself. Carefully check the section on involuntary transfers and ask about staffing levels. Ask facility managers put any grandiose promises they’ve made to you in writing — like the common promise that “we can take care of your mom for the rest of her life.” Guess what? They won’t, because they can’t. Assisted living facilities are simply not licensed to take care of people who have a need for a higher level of care, i.e. nursing home care.
• Know what your long-term plan is, in case you find yourself with difficult memory issues or increasing physical problems in the future, and what happens to people in the assisted living facility who have such issues. Find out if the assisted living community offers memory care services or if it is connected to a skilled nursing facility and how that can benefit you if needed. If they are connected to a nursing home, find out if that nursing home accepts Medicaid. Almost all nursing homes do, but there are a few here and there that don’t.

Is There Recourse You Can Take?

Often, there’s little that residents or their families can do about an eviction from an assisted living facility. Assisted living facilities are governed by states, and regulations tend to be loosely drafted, allowing facilities considerable flexibility in determining whom they admit as residents, the care they’re prepared to give, and when an eviction is warranted.

If you do find that you or a loved one is being evicted and you feel it is unwarranted, some states have specific legal procedures by which you can object to a discharge. In these states, you might be able to file a complaint with the licensing board or have a right to an administrative hearing.

Experts recommend that if a resident receives an eviction notice (typically with 30 days notice):

• Don’t move out right away. If the facility says it can no longer manage someone’s care needs, bring in a physician to evaluate whether assisted living is still a viable option. Try negotiating with the facility if you can suggest a solution to the concern managers are raising.
• File a complaint with your local long-term care ombudsman’s office, which will trigger an investigation and usually slow down the process. Ombudsmen represent residents’ interests in disputes and can help advocate on your behalf.
• Stay in place and wait for the facility to initiate legal action to buy yourself time. Don’t rush to move into another facility without checking and making sure it will be a better fit.
• Consider whether you want to stay at the current facility. Do you really want to be someplace that doesn’t want you? For most, the answer is no.

For state-specific information relating to assisted living and patients’ rights, visit the Web site of the Assisted Living Consumer Alliance.

When Assisted Living is No Longer an Option

If you or your loved one are in assisted living, but signs are showing that assisted living is not providing sufficient care, whether or not you are being kicked out, it may be time to consider nursing home care.

It is always wise to plan ahead for when the need for nursing home care eventually comes. Life Care Planning and Medicaid Asset Protection is the process of protecting assets from having to be spent down in connection with entry into assisted living or nursing home care, while also helping ensure that you and your loved ones get the best possible care and maintain the highest possible quality of life. Please know that we are here when you need us — just call to make an appointment for a no-cost initial consultation:

Fairfax Medicaid Asset Protection Attorney: 703-691-1888

Fredericksburg Medicaid Asset Protection Attorney: 540-479-143

Rockville Medicaid Asset Protection Attorney: 301-519-8041

DC Medicaid Asset Protection Attorney: 202-587-2797