Evictions from Assisted Living & Memory Care: Why They Happen and How to Prepare / Respond

Are Assisted Living / Memory Care Evictions Illegal?

The short answer is that evictions are legal. Assisted living residences and memory care homes can kick someone out of their communities regardless of whether they can care for themselves or have Alzheimer’s or another related dementia.

The Nursing Home Reform Act does have laws that prevent certain types of nursing home evictions, but this act does not apply to assisted living or memory care communities. The laws around assisted living evictions are state-specific therefore not applying nationwide. Policies are typically set by a state’s Department of Public Health. A complete list of state agencies that govern assisted living is located here.

The language used to kick someone out is often vague, and the rules are intentionally fuzzy to give facilities their own flexibility. For this reason, fully understand the “Admission and Retention Policy” of your loved one’s facility. A typical example of this is looking at Texa’s guidelines. They say, “A facility must not admit or retain a resident whose needs cannot be met by the facility or who cannot secure the necessary services from an outside resource.” There is a lot of wiggle room for a care community to interpret and apply this in their residence.

Furthermore, in most states, a residence can change its scope of care. This means that if your loved one requires a service provided by the memory care home, the home can stop providing that service and then evict your loved one because their specific needs are no longer being met. A residence can choose whether or not it provides the specific care your loved one needs in order to be there. Another source of frustration is that someone can be evicted in several states if their cognitive decline worsens. Alzheimer’s and dementia are progressive diseases meaning that they worsen over time. That means that in a state like New Jersey, where an assisted living home can evict someone whose decision-making has become too difficult, you might be constantly eligible for eviction because your loved one’s Alzheimer’s is declining as it progresses through its stages.

Another common eviction tactic is to tell the resident’s family that the individual’s care needs exceed what can be provided by the residence. The family can bring in outside care providers to provide the additional level of care required. For most families, this can become a financial burden through its prohibitively high expense, and the family often chooses to move out. Commonly the individual will be moved to a nursing home and the family will seek financial assistance through Medicaid benefits.

Keep in mind that ownership in senior living communities is common and normally new management can mean policy changes. Any of the above justifications for eviction are possible when new leadership takes over, so be diligent about knowing who is in charge of your loved one’s residence and current policies. New ownership has often led to more families facing eviction.

What to Do When You Receive an Eviction Notice

Evictions can be sudden and stunning. They usually come as a note that your loved one has 30 days to leave. However, there are smart strategies a family can take. Your loved one’s memory care home may be counting on your ignorance, so be informed.

Immediate Steps to Take

Typically, individuals are given a 30-day notice. However, figuring out the next step for your loved one will probably take longer than that. Moving an individual back home, to another memory care residence, or into a nursing home takes a lot of time. A typical time frame is usually 60-90 days to locate a residence, arrange care services and explore payment options.

1. The first step is to check your agreement with the residence, to make sure the 30-day notice is in line with the paperwork that was signed when moving in. Typically, you have 30, 60, or 90 days to move out. A residence may want your loved one to move out quickly, especially if they have a new resident waiting for the room.

2. Arrange a meeting with management to discuss the eviction. In that meeting, ask if an issue like behavioral problems can be resolved without needing to leave. Ask directly for an extension, requesting 90 or even 120 days. Make it apparent that you have done your research. Imply you will raise the issue on social media and review websites (such as SeniorAdvisor, Caring.com, and Yelp), all of which are known for offering verified and reliable information in the senior living industry. Communicate that you would consider filing a claim with a long-term care ombudsman or taking legal action. Resist taking these actions immediately, but let it be known that you are exploring all your options to find what benefits your loved one most.

3. Bring in an outside doctor to determine whether assisted living is still viable. Evictions often occur because a residence claims it can’t fulfill a person’s medical needs. Make sure this is true by getting a second opinion.

Secondary Steps or Options

1. Legal Action

Taking legal action, such as retaining an attorney, to fight the eviction can be an option, but it is not always the best approach. In many states, you cannot recoup the cost of hiring an attorney. Therefore, depending on your state, this may cost your family several thousand dollars. Consider your opponent as well. Most memory care residences are corporate chains that own many communities, and they retain a small army of attorneys and very likely are experts at dealing with evictions. Should you choose to pursue legal action, there are a few options to fight back.

It may be possible to seek satisfaction through a state’s landlord-tenant laws, which dictate how and why someone receiving rent money for housing is allowed to evict. If you’re paying to live somewhere, you have rights under the law. For a database of these laws, click here.

Another means of fighting eviction may be to cite the Americans with Disabilities Act, a national law requiring a residence to provide adequate care, or the Federal Fair Housing Act, which prohibits housing discrimination on the basis of a person’s disabilities.

2. Nursing Home Care

While you may not think your loved one requires nursing home care at the moment, there is a reason they are being evicted from memory care. It is likely that their daily care needs exceed what can be provided, or they are exhibiting behavioral challenges. Either of these reasons may qualify them for nursing home care. The unfortunate reality is that dementia is a progressive condition and the majority of people with dementia will require nursing home care. After an eviction, it is important to assess your loved one’s condition and progression of the disease and decide if memory care is appropriate and for how much longer. Another factor to consider is that nursing home care is not significantly more expensive than memory care, but there is greater financial assistance for nursing home care, primarily found in benefits from Medicaid.

Many families do not want to go down the nursing home path, but it is important to recognize it may be inevitable. The path to being admitted into a nursing home takes an average of 3 to 6 months, especially when trying to qualify for financial assistance from Medicaid. More on Medicaid and the path to entering a nursing home.

Understanding Long Term Care Ombudsmen

The long-term care ombudsman program is required by law to be in every state and investigate complaints within the system that includes assisted living, nursing homes, and memory care communities. A complaint may include unlawful evictions. This is probably one of the more common complaints received by the long-term care ombudsman. It is important to have realistic expectations about what filing a complaint with an ombudsman can hope to achieve. The program is notoriously underfunded and made up largely of volunteers. Do not expect the organization to respond to preventing an eviction within the 30-day window provided by an assisted living residence. However, the threat of a complaint, and an accumulation of validated complaints against a residence, can have an impact. Find your state’s long-term care ombudsman here.

Preventing Unexpected Evictions / Preparing Before Moving In

1. Be sure what you will be paying upfront. An inability to afford unexpected costs is one of the most common reasons for evictions. Most states require new residents in assisted living to receive a disclosure of all possible fees. File this document in case you need it at a later date.

2. Ask the right questions to be clear on the eviction policy before moving in. What exactly will it take for the facility to say you must leave? What are the steps of that process? Specifics are important: The more vague a policy, the more likely it is to be used unfairly, and the more likely you are to be surprised by an eviction. This includes getting a hard definition of “endangering behavior,” which is a term used to justify many evictions.

3. Carefully review the admissions agreement yourself, then have an expert, like an elder law attorney, review it as well. For help finding an elder law attorney, click here.

4. Any promises made by management should be put into writing. That is the only way to be sure a promise will be kept.

5. Arm yourself against “dumping.” This is when an assisted living residence (or nursing home) sends a patient to the hospital for a medical issue that cannot be addressed at the facility, then refuses to let them return, even going so far as giving away their room or bed to a new tenant. This is another important question to ask up front: How many days will your loved one’s bed be held if a hospital visit is required? Again, get this information in writing.

State Agencies Governing Assisted Living & Memory Care