Fighting Involuntary Discharge From An Assisted Care Facility

Nearly 800,000 residents live in 29,000 assisted care facilities (ACFs) around the country. Care at an ACF falls somewhere between in-home care and nursing home care. Typically, assisted care facilities offer long-term care and non-medical services to people who are unable to live independently. These services include meals, recreational services, assistance with prescription medicine, help with personal care, and other similar services. Many of these ACFs offer a higher level of care, sometimes called Memory Care, for residents with significant cognitive decline. A number of them also provide independent living before the need for assisted care arises. 

Every year, thousands of residents of assisted living facilities suddenly find themselves facing eviction when their health worsens. Unlike nursing homes, which are subject to federal regulations that protect residents from involuntary transfer and discharge, ACFs are regulated by the states, which have a great deal of discretion about who they admit and discharge, and on what grounds an involuntary discharge is permitted. The reason for the eviction is not always clear. In many cases, the assisted care facility will simply say they cannot meet the resident’s needs any longer. In other cases, they may cite behavioral problems or reference declining cognition, which requires medical care. But in fact, assisted care facilities are for-profit businesses run by individuals who are seeking to maximize profits. (Note that if a facility attempts to discharge a resident after the resident or his or her family filed a complaint, it could be considered unlawful retaliation.)

Residents of the state of New York have the following rights if there is an attempt to involuntarily discharge them:

• In most cases, be given 30 days’ written notice before transfer or discharge 
• Have 60 days from receipt of the discharge notice to file an appeal
• Be able to examine their own medical records and all documents to be used by the facility at the hearing, at a reasonable time prior to the date of the hearing, at the facility, and during the hearing
• Be allowed to remain in the facility pending the appeal determination 
• If the request for an appeal is timely filed with the Department but after discharge, be returned to the facility to the first available semi-private bed if the resident wins the appeal

Most state regulations require facilities to give residents a notice of discharge. Once notice is given, a resident may have a month or less to successfully challenge the discharge order. It is important to understand that it is difficult to get an eviction notice overturned.. However, because state laws regulating assisted living facilities are often vague, residents may be able to use this to their advantage.

Although there is no single manner or method to handle an involuntary discharge from an assisted living facility, there are some things you can try. Consulting with your Long Island elder law attorney is highly recommended if you or a loved one is facing a potential involuntary discharge. 

Strategies To Fight An Involuntary Discharge

Here are some strategies for fighting an involuntary assisted living discharge:

• Your first step should be to review the contractual agreement between the resident and the facility that outlines the rights and responsibilities of each party. Discharge policies should be clearly stated, and the facility’s discharge policy must meet state eviction standards at a minimum.  Challenge the discharge if you have grounds to do so on either of these bases.
• Stay put, if possible. In a few states, including New York, 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 will have the chance to argue that the eviction is not fair. In other states, it’s unclear whether a discharge is an eviction. In those states, staying put might be a good strategy, possibly forcing the ACF to get a court order to move the resident out, giving the resident more time to dispute the discharge.
• If the resident resides in a state with procedures allowing residents to object to a discharge, there may be more options. Depending on the state, a resident could be entitled to an informal meeting with a staff member or administrator who made the discharge decision, or a more formal administrative hearing.
• There might also be recourse through a state agency or agencies that regulate assisted living. In New York, facilities are regulated by the New York Department of Health, which certifies the facility, conducts inspections, and investigates resident complaints. 
• A resident may be able to take advantage of federal anti-discrimination laws to challenge the discharge. The Americans with Disabilities Act, the Fair Housing Amendments Act of 1988, and Section 504 of the Rehabilitation Act can be used to protect tenants against discrimination on the basis of a physical or mental disability. Pursuant to these laws, it is possible to argue that the ACF, acting as a landlord, must reasonably accommodate a disability unless it would cause an undue hardship. For example, if the reason cited for a discharge is that the resident now uses a walker and the facility has numerous stairs and no ramps, the resident may be able to argue that the landlord must install the ramps as a reasonable accommodation. It is important to be aware that anti-discrimination law is complex, and it is important to contact an attorney to discuss this strategy.  
• If the resident’s assisted living is paid by Medicaid through a Home and Community-based waiver, a resident must have the same or comparable eviction protections that tenants have under landlord-tenant law in that state, county, and city. These conditions, if not met, would form the basis of a legal challenge.

Contact Davidow, Davidow, Siegel & Stern, LLP

Here at Davidow, Davidow, Siegel & Stern, we understand the complicated legal issues that arise as people age. Our mission in the elder law sphere is to empower elders to make smart decisions about estate planning, long-term care, and protecting their health and assets. Contact us today for all of your elder care legal needs.