The Reasons for Involuntary Discharge
While the prospect of an assisted living eviction is distressing, it's important to know the specific, legally permissible reasons. These grounds are typically outlined in the residency agreement and vary significantly by state. Unlike federally regulated nursing homes, assisted living facilities have more discretion, though they still must follow proper procedure.
Medical Needs Exceeding Care
One of the most common reasons for an involuntary discharge is a change in the resident's health that pushes their care needs beyond the facility's licensed capabilities. Assisted living facilities are not equipped to provide the same level of medical care as a skilled nursing facility. If a resident's condition deteriorates to the point of requiring specialized care, the facility may issue a discharge notice. A facility might be liable for negligence if it knowingly kept a high-needs resident who then suffered an injury, providing a strong incentive for discharge.
Non-Payment of Fees
As with any tenancy, failing to pay for rent and services is a valid reason for eviction. This can become a significant issue when a resident's private funds are exhausted and they need to transition to Medicaid. While some facilities accept Medicaid waivers, others do not, and the transition process can be complicated. Facilities must follow state law regarding notice periods for non-payment.
Dangerous or Disruptive Behavior
Assisted living facilities must ensure the health and safety of all residents and staff. A resident who poses a threat to others, either physically or mentally, or whose behavior is persistently and significantly disruptive, may be subject to an involuntary discharge. The facility is usually required to document these incidents and demonstrate that other interventions were attempted before resorting to eviction.
Facility Closure or “Change of Use”
In rare cases, a facility may close permanently or change its licensure to a different type of care. In this scenario, all residents will receive notice and will need to find new housing. The facility must comply with specific state regulations governing closures, which often include longer notice periods and assistance with relocation.
The Resident's Rights and Protections
Even when facing eviction, assisted living residents have important rights. These protections prevent arbitrary or retaliatory discharges and ensure a dignified and orderly transition.
- Right to a Written Notice: The facility must provide a written notice stating the reason for the discharge and the effective date. The notice period required varies by state and reason for eviction, but is commonly 30 days.
- Right to Appeal: Many states require an appeals process for involuntary discharges. Residents or their representatives can request a hearing to contest the eviction. During the appeal process, the resident often has the right to remain in the facility until a decision is reached.
- Right to "Reasonable Accommodation": Under federal anti-discrimination laws like the ADA, facilities must make reasonable accommodations for residents with disabilities, unless it would cause an undue hardship. For example, if a disability is contributing to disruptive behavior, the facility must explore reasonable accommodations before eviction.
- Right to a Smooth Transition: The facility is required to have a discharge plan to ensure the resident's departure is safe and that they have a place to go that can meet their care needs.
The Difference Between Assisted Living and Nursing Home Eviction Rules
Understanding the distinction between these two types of facilities is critical, as the regulations governing eviction differ significantly.
| Feature | Assisted Living Facilities | Nursing Homes |
|---|---|---|
| Regulation | Primarily regulated by state law, leading to significant state-by-state variations. | Heavily regulated by federal law (Omnibus Budget Reconciliation Act of 1987). |
| Eviction Protections | Generally less stringent and more flexible than nursing homes. State laws dictate notice periods and appeal rights. | Federally mandated protections ensure a formal process with robust appeal rights and limited legal reasons for eviction. |
| Medicaid Funding | If the facility accepts residents funded by Medicaid Home and Community-Based Services (HCBS) waivers, residents gain some federal eviction protections, including comparable rights to tenants under landlord-tenant law. | Federal law strictly regulates admission and discharge of Medicaid residents, with clear protections against eviction for changes in payment source. |
| Care Level | Eviction is often tied to a change in health needs that exceeds the facility's scope of care. | Designed to provide higher, skilled nursing care, making it harder to evict residents solely for needing more care. |
Steps to Take When an Eviction Notice Is Received
If you or a loved one receives an involuntary discharge notice, take these steps immediately to protect your rights and explore options.
- Don't Panic and Don't Move Immediately: Unless there's an immediate safety threat, it's often advisable to stay put. This buys time to challenge the eviction and forces the facility to follow the legal process, which may include going to court.
- Review the Admission Agreement: This contract, signed upon moving in, outlines the specific terms and conditions for remaining a resident and should be your first point of reference for discharge policies.
- Document Everything: Keep a detailed record of all communications, meetings, and incidents involving the facility. This documentation can be vital evidence if you need to challenge the eviction.
- Seek Advocacy from a Long-Term Care Ombudsman: These advocates are specially trained to resolve complaints on behalf of residents in long-term care facilities. They can provide advice, mediate with the facility, and investigate potential regulatory violations.
- Consult an Elder Law Attorney: An attorney specializing in elder law can evaluate the specifics of the eviction, determine if your rights have been violated, and represent you in an appeal or other legal proceedings.
- Negotiate with the Facility: Sometimes, a resolution can be reached without a full-blown appeal. This could involve creating a new care plan, arranging for supplementary services, or negotiating a payment plan.
Preventing a Problematic Discharge
Preparation is key to avoiding difficult situations. Before a crisis occurs, consider these proactive measures:
- Careful Vetting Before Move-In: Before selecting a facility, inquire about their specific eviction policies, their procedures for handling resident complaints, and how they manage residents whose care needs increase.
- Understand Financial Protections: If a resident is private pay, research how the facility handles the transition if private funds run out and the resident needs to switch to Medicaid. Confirm their policy on Medicaid residents and if they have Medicaid beds.
- Maintain Clear Communication: Keep an open dialogue with facility staff and management regarding the resident's care plan and any changes in their condition. This can help address issues before they escalate.
- Know Your Local Resources: Familiarize yourself with the contact information for your state's long-term care ombudsman and elder law services. This knowledge is invaluable if a problem arises. For a comprehensive resource on federal Medicaid regulations and how they impact assisted living evictions, advocates can visit Justice in Aging.
Conclusion
Being told to leave an assisted living facility is a serious and upsetting event, but it is not an insurmountable one. Residents have legally protected rights that prevent arbitrary removals, and understanding these rights is the first step toward a positive outcome. Whether through negotiation, advocacy from an ombudsman, or legal action, you have options. By staying informed and acting decisively, residents and their families can navigate this complex process and ensure a just and safe resolution.
