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 evict someone from their communities regardless of whether they can care for themselves or have Alzheimer’s disease 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. Some states do have laws that regulate evictions in assisted living and memory care, but not every state and the laws vary depending on the state. Policies are typically set by a state’s Department of Public Health, but a complete list of state agencies that govern assisted living can be found below.

The language used to evict someone is often vague, and the rules are intentionally fuzzy to give facilities flexibility. For example, assisted living evictions guidelines used in Texas declare that: “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.” This language gives facilities ample wiggle room to interpret and use the guideline as they see fit. So, it’s critical for assisted living residents and their families to read the “Admission and Retention Policy” of their facility and fully understand all of its details and consequences.

However, even if you do completely understand a facility’s rules and regulations, most states allow residences to change their scope of care. This means that if someone requires a service provided by an assisted living residence or memory care unit, the facility can stop providing that service and then evict the individual because their specific needs are no longer being met.
Another source of frustration is that several states allow assisted living and memory care evictions if the resident’s cognitive decline worsens. Since Alzheimer’s disease and other dementias are progressive conditions, their symptoms always worsen. So dementia patients in assisted living or memory care in these states are never far from being evicted.

A common eviction tactic used by facilities is to tell the resident’s family that the resident’s care needs exceed what can be provided by the facility. They will usually give the family the option of bringing in outside care help, but this is often prohibitively expensive, and many seniors and their families decide to move out, which is what the facility wanted in the first place. If you or your loved one is faced with this situation, you should know that Medicaid will help pay for care in assisted living residences and memory care facilities for qualified individuals. To see if you or your loved one qualifies, take this free Medicaid Eligibility Test.

What to Do When You Receive an Eviction Notice

Evictions can be sudden and shocking. The notice usually comes with a warning that the resident has 30 days to leave. The assisted living residence or memory care facility may be counting on residents and their families not knowing the rules or their rights, so it’s important to stay informed and know there are counter measures that can help.

Immediate Steps to Take

Evictions usually come with a 30-day notice, as mentioned. However, figuring out the next step for your loved one will probably take longer than that. Moving an individual back home, into another memory care residence, or into a nursing home can be time consuming. A typical time frame is usually 60-90 days to locate a residence, arrange care services and explore payment options. Keeping this in mind, here are the first three steps to take after receiving an eviction notice.

1. The first step is to check the agreement with the residence to make sure it includes mention of a 30-day time frame when it comes to evictions. Individuals typically have 30, 60, or 90 days to move out, but the residence usually wants evicted people to move out as quickly as possible so they can put a new occupant in the room.

2. Arrange a meeting with management to discuss the eviction. Ask if there are any issues that 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, 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 of your options.

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 to fight the eviction can be an option, but it is not always the best approach. Hiring a lawyer is expensive, and you can not recoup their fees in many states regardless of the outcome of the case. Also, consider the opponent. Most memory care residences are corporate chains that retain a small army of attorneys who are very likely experts at dealing with evictions.

If you decide to take legal action despite the cost and the opponent, there are the most common ways to fight evictions. Should you choose to pursue legal action, there are a few options to fight back. First, if you’re paying to live somewhere, you have rights under the state’s landlord-tenant laws, which dictate how and why landlords are allowed to evict. For a database of these laws, click here.

Another means of fighting eviction may be to cite the Americans with Disabilities Act, which is a national law requiring a residence to provide adequate care. If applicable, one can also cite 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 eventually 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 consider nursing homes, but it’s important to recognize it may be inevitable, and the sooner you start planning for it the smoother the transition will be. It takes an average of 3-6 months to be admitted into a nursing home, and even longer if one is first applying for Medicaid’s nursing home coverage. 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 to investigate complaints regarding assisted living, nursing homes and memory care communities. Complaints can include unlawful evictions. In fact, complaints about unlawful evictions are among the most common for long-term care ombudsman, but it’s important to have realistic expectations about what filing a complaint with an ombudsman can achieve. The program is notoriously underfunded and made up largely of volunteers. Do not expect the organization to prevent an eviction from happening within the 30-day window provided by an assisted living residence or memory care community. However, the threat of a complaint can have an impact, as can the accumulation of validated complaints against a residence. To find your state’s long-term care ombudsman, click here.

Preventing Unexpected Evictions / Preparing Before Moving In

1. Be sure you know all possible fees before agreeing to pay. An inability to afford unexpected costs is one of the most common reasons for evictions. Most states require facilities to disclose all potential fees to new residents. Keep a copy of this document on file in case it’s needed 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 evict? 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, memory care facility 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 or room be held if a hospital visit is required? Again, get this information in writing.

State Agencies Governing Assisted Living & Memory Care