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

Last Updated: December 10, 2019

 

  Can they do this? Dad’s symptoms are getting worse as he advances into the later stages of Alzheimer’s, but that’s what happens! We put him into memory care specifically because they’re trained for this… and suddenly we’re being evicted. They say he’s endangering, and we have 30 days to move.

 

The short is answer is that evictions are not illegal. Assisted living residences and memory care homes are free to kick someone out of their communities, even if that person has Alzheimer’s or another related dementia and is not able to care for themselves.

 

  Assisted living evictions are legal, provided the facility does not violate its own Admission and Retention policy.

 

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 / memory care communities. Instead, the laws around assisted living evictions are state-specific, and do not apply nationwide. Typically, policies are 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 justify kicking someone out is often vague, the rules are intentionally fuzzy to give facilities flexibility. For this reason, be acquainted with the “Admission and Retention Policy.” As an example, here’s Texas’s: “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.” Lots of wiggle room there!

Furthermore, in most states, the residence can at any time alter 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, in other words, whether or not it provides the specific care your loved one needs in order to be there. Another source of frustration is that in several states someone can be evicted if their cognitive decline worsens. As anyone with experience dealing with Alzheimer’s disease knows, this is what dementia does: It worsens. So 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 Alzheimer’s is progressive.

Another common eviction approach is to tell the resident’s family that the individual’s care needs exceed what can be provided by the residence. The family is given the option to bring in outside care providers to provide the additional level of care required. For most families this can become prohibitively expensive, and the family chooses to move out. Commonly the individual will be moved to a nursing home and the family will seek assistance from Medicaid.

Keep in mind that ownership and management changes in senior living communities are frequent, and often come with policy changes. Any of the above justifications for eviction are on the table when a new leadership takes over, so try to be diligent about knowing who’s in charge at your loved one’s residence and what their policies are. New ownership has often led to 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 and should 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, or to another memory care residence, or into a nursing home takes a lot of time — usually 60-90 days to locate the 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, but a residence may want your loved one 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 feared and respected by the senior living industry. Let it be known 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 they are on the table.

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, so be sure this is true by getting a second opinion.

 

  Time for a Change?
You may really want your loved one to remain in this residence, and you may be angry because you feel the residence violated your agreement or at least the spirit of your agreement, but objectively consider whether remaining is the right long-term decision for your loved one. Separation might be best for both parties. While an unfair eviction can be devastating, and even insulting, do you really want your loved one staying someplace that doesn’t have their best interests at heart?

 

Given your loved one has dementia, an eviction may be inevitable in the future as the disease progresses. Consider this an opportunity to find a better, long-term solution. Know that free relocation services are available for other memory care homes. Or is it time for nursing-home-level care? For the majority of persons with dementia, nursing home care is paid for by Medicaid. See if your loved one is eligible.

 

Secondary Steps or Options

1. Legal Action
Taking legal action such as retaining an attorney to fight the eviction is an option, but recognize the shortcomings of this approach. In many states, even if you win, you cannot recoup the cost of hiring an attorney. Therefore, depending on your state, this may cost your family several thousand dollars or even more. 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 expert at dealing with evictions. Should you choose to pursue legal action, there are a few options to fight back (and a lawyer may know more).

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 persons with dementia will eventually require nursing home care. When dealing with an eviction, it is important to assess your loved one’s condition and progression and decide if memory care is appropriate and, if so, 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 Medicaid).

Many families don’t want to go down the nursing home path, but it is important to recognize it may be inevitable, and the path to a nursing home takes as much as 3-6 months, especially when looking 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 in every state, and investigates complaints within the system that includes assisted living, nursing homes, and memory care communities. A complaint may include unlawful evictions. In fact, this is probably one of the more common complaints received by long-term care ombudsmen. 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. One should not expect the organization can respond and prevent 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

 The best advice is this: Completely understand how and why a person can be evicted from a memory care community before moving in. Get it all in writing.

 

1. Be absolutely sure what you’ll be paying up front. 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.

2. Ask the right questions to be crystal clear on the eviction policy before moving in. What exactly will it take for the facility to say you must leave? What are the particulars 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’s 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 it in writing.

 

State Agencies Governing Assisted Living & Memory Care

 

State Agencies Overseeing Assisted Living and Memory Care Residences & Regulations – Updated Dec. 2019
Alabama Department of Public Health, Bureau of Health Provider Standards
Alaska Department of Health & Social Services, Division of Health Care Services
Arizona Department of Health Services, Bureau of Residential Facilities Licensing
Arkansas Department of Health and Human Services, Office of Long-Term Care
California Department of Social Services, Community Care Licensing Division
Colorado Department of Public Health and Environment, Health Facilities and Emergency Medical Services Division
Connecticut Department of Public Health, Facility Licensing & Investigations Section
Delaware Department of Health & Social Services, Division of Long-Term Care Residents Protection
Florida Agency for Health Care Administration, Bureau of Long-Term Care Services
Georgia Department of Community Health, Healthcare Facility Regulation Division
Hawaii Department of Health, Office of Health Care Assurance
Idaho Department of Health and Welfare
Illinois Department of Public Health, Division of Assisted Living
Indiana Department of Health, Division of Long-Term Care
Iowa Department of Inspections and Appeals, Adult Services Bureau
Kansas Department on Aging
Kentucky Cabinet for Health & Family Services, Department for Aging & Independent Living
Louisiana Department of Health and Hospitals
Maine Department of Health and Human Services, Division of Licensing and Certification
Maryland Department of Health and Mental Hygiene, Office of Health Care Quality
Massachusetts Executive Office of Elder Affairs
Michigan Department of Human Services, Bureau of Children and Adult Licensing
Minnesota Department of Health
Mississippi Department of Health, Bureau of Health Facilities Licensure and Certification
Missouri Department of Health and Senior Services, Division of Regulation and Licensure
Montana Department of Public Health and Human Services, Quality Assurance Division
Nebraska Department of Health and Human Services, Licensure Unit
Nevada Division of Health, Bureau of Health Care Quality and Compliance
New Hampshire Department of Health and Human Services, Office of Operations Support, Health Facilities Administration
New Jersey Department of Health and Senior Services, Division of Health Facilities Evaluation and Licensing
New Mexico Department of Health, Health Facility Licensing and Certification Bureau
New York Department of Health
North Carolina Department of Health and Human Services, Division of Health Service Regulation, Adult Care Licensure Section
North Dakota Department of Health, Division of Health Facilities for Basic Care Facilities
Ohio Department of Health, Division of Quality Assurance
Oklahoma Department of Health, Health Facility Systems
Oregon Department of Human Services, Seniors and People with Disabilities
Pennsylvania Department of Public Welfare, Office of Administration, Bureau of Human Services Licensing
Rhode Island Department of Health, Center for Health Facilities Regulation
South Carolina Department of Health and Environmental Control, Division of Health Facility Licensing
South Dakota Department of Health
Tennessee Department of Health, Board for Licensing Health Care Facilities
Texas Department of Aging and Disability Services
Utah Department of Health, Health Facility Licensing, Certification and Resident Assessment
Vermont Department of Disabilities, Aging and Independent Living, Division of Licensing and Protection
Virginia Department of Social Services, Division of Licensing Programs
Washington Department of Social and Health Services, Aging and Long-Term Support Administration
Washington DC Department of Health, Assisted Living Residences
West Virginia Department of Health and Human Resources, Office of Health Facility Licensure and Certification
Wisconsin Department of Health Services, Division of Quality Assurance
Wyoming Department of Health, Office of Healthcare Licensing and Surveys