Fighting an Assisted Living Discharge

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.

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.

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