Removing a trustee is a serious step that can be costly and time-consuming. However, it may become necessary when a trustee's actions (or lack thereof) threaten the integrity of the trust.
Assisted living facilities (ALFs) provide essential care and support to many seniors and individuals with disabilities. However, when residents’ health changes or financial situations shift, many face the difficult prospect of an assisted living facility eviction or involuntary discharge.
Unlike nursing homes, ALFs are regulated primarily at the state level, creating a complex and varied landscape of rights and protections.
This guide breaks down everything you need to know about ALF evictions, including:
- Why evictions happen
- The differences between state and federal regulation
- How to fight back
- When to get legal help
Key Takeaways
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Assisted living facilities (ALFs) often evict or refuse to admit Medicaid-eligible individuals. Unlike nursing homes, ALFs generally do not have federal discharge protections.
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State laws govern ALF admissions and discharges, leading to different rights and processes across states.
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Residents facing eviction should review their resident agreements carefully and seek advice from a local elder law attorney.
Table of Contents
- Overview of Assisted Living Facility Evictions
- Understanding Assisted Living Facilities and Their Care
- Why Are Residents Evicted?
- State vs. Federal Regulation of ALFs
- Ways to Fight an Assisted Living Facility Discharge
- How Your Elder Law Attorney Can Help
Overview of Assisted Living Facility Evictions
Every year, thousands of assisted living facility (ALF) residents suddenly find themselves facing eviction when their health worsens. It is also not unusual for facilities to kick out or refuse to admit people who are eligible for Medicaid, even though these facilities are approved to participate in Medicaid.
Unlike nursing homes, which are subject to federal rules that protect residents from involuntary transfer and discharge, ALFs are generally not regulated by the federal government. Instead, their oversight is left to the states, which have considerable discretion about who they admit and discharge, and on what grounds an involuntary discharge is permitted.
Although there is no single, surefire way to handle a discharge from an assisted living facility, there are some things you can try. Consulting with an elder law attorney in the state where the facility is located is highly recommended if you or a loved one is facing a potential discharge.
Understanding Assisted Living Facilities and Their Care
Research from the National Institutes of Health shows that approximately 29,000 assisted living facilities in the United States currently provide care to more than 800,000 residents.
Care at an assisted living community falls somewhere between in-home care and a nursing home. Residents typically have access to such services as:
- Meals
- Help with personal care and medications
- Housekeeping and laundry
- Social activities
- 24-hour supervision
Payment for Assisted Living
- Most residents pay for assisted living out-of-pocket.
- Medicare doesn’t cover ALFs, but Medicaid and long-term care insurance may cover some parts of assisted living.
- Federal Medicaid law, for example, allows states to offer home and community-based services (HCBS), including assisting living services. Under this deal, Medicaid pays for the assisted living services, while the resident pays room and board costs.
- The average cost of assisted living is $4,000 to $5,000 per month.
Why Are Residents Evicted?
Assisted living residents often will eventually need a higher level of care. Research shows that a significant portion of them suffer from some type of cognitive impairment on top of co-occurring chronic illnesses.
Some assisted living facilities are part of a larger facility that also offers higher care levels, such as skilled nursing care and memory care. An ALF resident whose health worsens may be moved into an area of the facility that better meets their care needs. However, some facilities may tell them they must move out because the facility can no longer meet their needs.
According to KFF Health News, these involuntary discharges or evictions are common practice at ALFs across the country, with facilities essentially telling residents:
“We can’t take care of you any longer.”– KFF Health News
Evictions are the number one grievance about ALFs filed with long-term care ombudsmen, says KFF.
What’s worse, Justice in Aging told KFF, is that residents and their families usually have little recourse when facing an eviction because assisted living is governed at the state level, and state regulations tend to be loosely drafted:
“Allowing facilities considerable flexibility in determining who they admit as residents, the care they’re prepared to give and when an eviction is warranted.” -Justice in Aging
State vs. Federal Regulation of ALFs
ALFs frequently base an eviction on the determination that the facility can no longer provide the care that a resident requires — a standard that gives them wide latitude to decide when to discharge a resident.
Unlike nursing homes, ALFs are not subject to federal rules that require a facility to document why they can’t meet a resident’s care needs. ALF residents also lack other rights that nursing home residents have, including:
- A formal appeals process
- Guaranteed safe discharge to another care setting
Among the patchwork of state laws that regulate ALFs, few meet expert recommendations, such as:
- Limiting discharges to specific conditions
- Providing discharge notices
- Granting appeal rights
Most states (45 plus DC) require ALFs to notify residents before involuntary discharge.
However, the rules vary widely from state to state.
For example, states like Hawaii, South Dakota, Utah, and Virginia have more defined criteria and grant residents certain rights, such as informal hearings or assistance during discharge.
Examples of State Discharge Rules
| State | Discharge Criteria Highlights | Resident Rights |
|---|---|---|
| Hawaii | Offers informal conference if requested in writing within 10 days of discharge notice | Opportunity for informal conference |
| Utah | Residents may contest discharge at informal conference | Right to contest discharge |
| Virginia | Facility must assist resident and legal representative in discharge/transfer | Assistance during discharge process |
In general, assisted living facilities have great flexibility to decide when to discharge a resident. Besides medical needs exceeding the facility’s ability, justifications include:
- Disruptive or harmful behavior to others
- Failure to pay bills
- Facility closure
- Violation of admission agreement
Ways to Fight an Assisted Living Facility Discharge
Almost all states require facilities to give residents a notice of discharge.
⚠️ Important: Almost all states require facilities to give residents a notice of discharge. Once delivered, residents typically have a month or less to respond.
Residents and their families should understand that, in most cases, the chances of getting an eviction notice overturned are slim. However, because state laws regulating assisted living facilities are often vague, residents can use this to their advantage.
Start by Reviewing the Resident Agreement
The first place to look is the assisted facility resident agreement, a contract between the resident and the facility that outlines the rights and responsibilities of both parties. This document covers things like:
- Services provided
- Fee schedule
- Requirements to be admitted and remain a resident
- Discharge policies
- Grievance procedures
Resident agreements must comply with state laws about assisted living facilities. A facility can’t set eviction standards that fall short of state law requirements, but they can give residents more eviction rights than are permitted under state law.
ℹ️ Tip: While this is unlikely, it’s worth going over the contract with an attorney to see what state- and facility-specific options are available to a resident facing an eviction order.
Stay Put, If Possible
In some states, including Massachusetts, New York, and Iowa—assisted living discharge is considered an eviction and is handled under landlord-tenant law. That means the facility must go to court before it can evict a resident, who then has the chance to argue that the eviction is not fair.
In many states, it’s uncertain whether assisted living discharge counts as an eviction. Because the rules are vague, the facility may not know what to do if a resident does not leave. Staying put could shift the balance of power, forcing the facility to obtain a court order to move the resident out and giving the resident more time to dispute the discharge.
Appeal Rights and Hearing Options
Some states provide procedures allowing residents to object to a discharge. Depending on state law, a resident might be entitled to an informal meeting with a staff member or administrator who made the discharge decision, or a more formal administrative hearing.
Recourse Through Licensing Agencies
Residents might also have recourse through the state agency that licenses and regulates assisted living facilities. Each state has a designated regulatory body that conducts inspections and investigates resident complaints. If a facility attempts to discharge a resident after they filed a complaint, this could be considered retaliation and therefore illegal.
Protection Under Federal Anti-Discrimination Laws
Federal laws such as the Americans with Disabilities Act (ADA), the Fair Housing Amendments Act, and Section 504 of the Rehabilitation Act protect residents from discrimination based on disabilities. Assisted living facilities must provide reasonable accommodations unless doing so causes undue hardship.
For example, if a resident now uses a wheelchair but the facility lacks ramps, the resident can argue that ramps should be installed as a reasonable accommodation. Because these laws are complex, consulting a lawyer is recommended when pursuing such claims.
Protections for Medicaid-Funded Residents
Residents whose assisted living care is funded through Medicaid’s Home and Community-Based Services (HCBS) Waiver have eviction protections similar to those provided under local landlord-tenant laws. If such protections don’t apply locally, states must offer “comparable” protections, which may include administrative hearings.
How Your Elder Law Attorney Can Help
Assisted living facilities have significant leeway to discharge residents, but cannot do so arbitrarily. A National Center for Assisted Living report summarizes which state agency licenses assisted living facilities and their discharge policies.
You can file complaints with licensing agencies or long-term care ombudsman programs in your state.
Facilities may be subject to notice requirements, appeals processes, and contractual limitations that could work in your favour — allowing you to remain at the facility or giving you time to arrange a safe transfer. Review the discharge notice, gather relevant documentation (such as medical records, financial statements, and communication with the facility), and attempt to negotiate a resolution.
If you’re facing an eviction, an elder law attorney can help you:
- Review the discharge notice to ensure it meets state and contractual requirements.
- Identify potential violations of resident rights, Medicaid rules, or discrimination laws.
- Gather supporting documentation, such as medical records, payment history, and correspondence with the facility.
- Negotiate with the facility to delay or prevent discharge, or secure a safer transition plan.
- File a complaint with the state’s licensing agency or long-term care ombudsman if necessary.
- Pursue an appeal or legal action under applicable state or federal law.
If informal efforts do not resolve the issue, seeking legal advice from an experienced elder law attorney can make a critical difference. We can help you understand your rights, explore your options, and fight for the best possible outcome.
Need Help Facing an Assisted Living Facility Discharge?
If you or a loved one is facing eviction from an assisted living facility, don’t navigate this complex process alone. Contact Mazneko Law Firm today to understand your rights and explore your options for fighting the discharge.
