Search Articles

Find Attorneys

Fighting an Assisted Living Discharge

  • April 24th, 2013

When you move into an assisted living complex, you expect to spend the rest of your days there. However, many assisted living residents suddenly find themselves facing eviction from their homes when their health deteriorates.  It is also a common practice for facilities to kick out or refuse to admit people who are eligible for Medicaid, even though the facilities are approved to participate in Medicaid. Although there is no "one size fits all" way to handle a discharge from a facility, there are some things you can try.

In general, assisted living facilities have a lot of discretion to determine when to discharge a resident.  In 2008, 39 states allowed a facility to discharge a patient if the facility could no longer meet the patient's needs, according to the National Senior Citizens Law Center. The other 11 states (Connecticut, Georgia, Kentucky, Maryland, Massachusetts, Minnesota, Nebraska, New Hampshire, New Jersey, North Dakota, and Rhode Island) were either silent about discharge or provided other reasons for discharge, such as the resident required services that exceed the facility's license or the resident violated the admission agreement.

Local Elder Law Attorneys in Your City

Elder Law Attorney

Firm Name
City, State

Elder Law Attorney

Firm Name
City, State

Elder Law Attorney

Firm Name
City, State

Almost all states require facilities to give residents notice of discharge, but the rules vary widely from state to state. In addition, laws regulating assisted living facilities are vague. While this gives facilities a lot of discretion, you can also use it to your advantage.

If you are facing a discharge that you don't believe is fair, you should stay put, if possible. In a few states (Massachusetts, New York, and Iowa), assisted living discharge is considered an eviction and is handled under landlord-tenant law. That means the facility is required to go to court before it can evict you, and you will get a chance to argue against the eviction. In other states, whether an assisted living discharge is an eviction is an open question. Because the rules are vague, the facility may not know what to do if you do not leave, and by staying you can change the balance of power. The facility would likely be forced to get a court order to move you out, and you may be able to argue that the discharge is unfair.

Some states may have procedures by which you can object to the discharge. The procedures vary from state to state. It could be that you meet with a staff member or an administrator who made the discharge decision or file a complaint with the state licensing board. In a few states (for example, Maine, Ohio, Oklahoma, Oregon, Vermont, Wisconsin), you have the right to an administrative hearing.

If all else fails, you may be able to use 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 all protect tenants against discrimination on the basis of a physical or mental disability. Landlords are required to reasonably accommodate a disability unless it would cause an undue hardship. So, for example, if the reason you are being discharged is because you are now in a wheelchair and your assisted living apartment does not have ramps, you may be able to argue that the landlord is required to install the ramps as a reasonable accommodation. Using anti-discrimination law is very difficult and would require the assistance of a lawyer.

For state-specific information relating to assisted living, visit the Web site of the Assisted Living Consumer Alliance.


Last Modified: 04/24/2013
Learn the secrets of estate planning from an expert
ADVERTISEMENT
Medicaid 101
What Medicaid Covers

In addition to nursing home care, Medicaid may cover home care and some care in an assisted living facility. Coverage in your state may depend on waivers of federal rules.

READ MORE
How to Qualify for Medicaid

To be eligible for Medicaid long-term care, recipients must have limited incomes and no more than $2,000 (in most states). Special rules apply for the home and other assets.

READ MORE
Medicaid’s Protections for Spouses

Spouses of Medicaid nursing home residents have special protections to keep them from becoming impoverished.

READ MORE
What Medicaid Covers

In addition to nursing home care, Medicaid may cover home care and some care in an assisted living facility. Coverage in your state may depend on waivers of federal rules.

READ MORE
How to Qualify for Medicaid

To be eligible for Medicaid long-term care, recipients must have limited incomes and no more than $2,000 (in most states). Special rules apply for the home and other assets.

READ MORE
Medicaid’s Protections for Spouses

Spouses of Medicaid nursing home residents have special protections to keep them from becoming impoverished.

READ MORE
Medicaid Planning Strategies

Careful planning for potentially devastating long-term care costs can help protect your estate, whether for your spouse or for your children.

READ MORE
Estate Recovery: Can Medicaid Take My House After I’m Gone?

If steps aren't taken to protect the Medicaid recipient's house from the state’s attempts to recover benefits paid, the house may need to be sold.

READ MORE
Help Qualifying and Paying for Medicaid, Or Avoiding Nursing Home Care

There are ways to handle excess income or assets and still qualify for Medicaid long-term care, and programs that deliver care at home rather than in a nursing home.

READ MORE
Are Adult Children Responsible for Their Parents’ Care?

Most states have laws on the books making adult children responsible if their parents can't afford to take care of themselves.

READ MORE
Applying for Medicaid

Applying for Medicaid is a highly technical and complex process, and bad advice can actually make it more difficult to qualify for benefits.

READ MORE
Alternatives to Medicaid

Medicare's coverage of nursing home care is quite limited. For those who can afford it and who can qualify for coverage, long-term care insurance is the best alternative to Medicaid.

READ MORE
ElderLaw 101
Estate Planning

Distinguish the key concepts in estate planning, including the will, the trust, probate, the power of attorney, and how to avoid estate taxes.

READ MORE
Grandchildren

Learn about grandparents’ visitation rights and how to avoid tax and public benefit issues when making gifts to grandchildren.

READ MORE
Guardianship/Conservatorship

Understand when and how a court appoints a guardian or conservator for an adult who becomes incapacitated, and how to avoid guardianship.

READ MORE
Health Care Decisions

We need to plan for the possibility that we will become unable to make our own medical decisions. This may take the form of a health care proxy, a medical directive, a living will, or a combination of these.

READ MORE
Estate Planning

Distinguish the key concepts in estate planning, including the will, the trust, probate, the power of attorney, and how to avoid estate taxes.

READ MORE
Grandchildren

Learn about grandparents’ visitation rights and how to avoid tax and public benefit issues when making gifts to grandchildren.

READ MORE
Guardianship/Conservatorship

Understand when and how a court appoints a guardian or conservator for an adult who becomes incapacitated, and how to avoid guardianship.

READ MORE
Health Care Decisions

We need to plan for the possibility that we will become unable to make our own medical decisions. This may take the form of a health care proxy, a medical directive, a living will, or a combination of these.

READ MORE
Long-Term Care Insurance

Understand the ins and outs of insurance to cover the high cost of nursing home care, including when to buy it, how much to buy, and which spouse should get the coverage.

READ MORE
Medicare

Learn who qualifies for Medicare, what the program covers, all about Medicare Advantage, and how to supplement Medicare’s coverage.

READ MORE
Retirement Planning

We explain the five phases of retirement planning, the difference between a 401(k) and an IRA, types of investments, asset diversification, the required minimum distribution rules, and more.

READ MORE
Senior Living

Find out how to choose a nursing home or assisted living facility, when to fight a discharge, the rights of nursing home residents, all about reverse mortgages, and more.

READ MORE
Social Security

Get a solid grounding in Social Security, including who is eligible, how to apply, spousal benefits, the taxation of benefits, how work affects payments, and SSDI and SSI.

READ MORE
Special Needs Planning

Learn how a special needs trust can preserve assets for a person with disabilities without jeopardizing Medicaid and SSI, and how to plan for when caregivers are gone.

READ MORE
Veterans Benefits

Explore benefits for older veterans, including the VA’s disability pension benefit, aid and attendance, and long-term care coverage for veterans and surviving spouses.

READ MORE