Is
there anything families can do to fight these evictions?
By Judith Graham
September
6, 2018
The
phone call came as a shock. Your aunt can’t transfer into memory care; we have
to discharge her from this facility, a nurse told Jeff Regan. You have 30 days
to move her out.
The
next day, a legal notice was delivered. Marilou Jones, 94, who has dementia,
was being evicted from Atria at Foster Square, an assisted living facility in
Foster City, Calif. The reason: “You are non-weight bearing and require the
assistance of two staff members for all transfers,” the notice said.
Regan
was taken aback: After consulting with Atria staff about his aunt’s
deteriorating health, he and Jones’ husband, William, 88, had arranged for her
to be transferred to a dementia care unit at the facility. A room had been
chosen, and furniture bought. But now, Atria was claiming it couldn’t meet her
needs after all.
This
action isn’t unusual. Across the country, assisted living facilities are
evicting residents who have grown older and frail, essentially saying that “we
can’t take care of you any longer.”
Evictions
top the list of grievances about assisted living received by long-term care
ombudsmen across the U.S. In 2016, the most recent year for which data are
available, 2,867 complaints of this kind were recorded — a number that experts
believe is almost surely an undercount.
Often,
there’s little that residents or their families can do about evictions.
Assisted living is governed by states, and regulations tend to be loosely
drafted, allowing facilities considerable flexibility in determining whom they
admit as residents, the care they’re prepared to give and when an eviction is
warranted, said Eric Carlson, directing attorney at Justice in Aging, a legal
advocacy organization.
While
state regulations vary, evictions are usually allowed when a resident fails to
pay facility charges, doesn’t follow a facility’s rules or becomes a danger to
self or others; when a facility converts to another use or closes; and when
management decides a resident’s needs exceed its ability to provide care — a
catchall category that allows for considerable discretion.
Unlike
nursing homes, assisted living facilities generally don’t have to document
their efforts to provide care or demonstrate why they can’t provide an adequate
level of assistance. In most states, there isn’t a clear path to appeal
facilities’ decisions or a requirement that a safe discharge to
another setting be arranged — rights that nursing home residents have under
federal legislation.
It’s
very frustrating “because state regulations don’t provide sufficient
protections,” said Robyn Grant, director of public policy and advocacy for the
National Consumer Voice for Quality Long-Term Care.
Sometimes,
evictions are prompted by a change in ownership or management that prompts a
re-evaluation of an assisted living center’s policies. In other cases,
evictions target residents and family members who complain about not getting
adequate assistance.
Amy
Delaney, a Chicago elder law attorney, tells of a client in her late 80s with
dementia admitted to an upscale assisted living community. When her two
daughters noted deficiencies in their mother’s care, managers required them to
hire a full-time private caregiver for $10,000 a month, on top of the
facility’s fee of $8,000 a month.
One
day, a daughter went to visit, saw staff napping and took pictures on her
cellphone, which she sent to the facility administrator with a note expressing
concern. “A few days later, she got a call telling her that her mom had become
combative and needed to be taken to the hospital for psychiatric treatment,”
Delaney said.
The
daughters went to the facility and took their mother to one of their homes.
“They found another assisted living facility for her a few weeks later,”
Delaney said, noting that she found no record of behavioral issues in the
woman’s record when the daughters contemplated suing.
“We see
this regularly: An assisted living [facility] will say your mom isn’t looking
well, we’re sending her to the hospital to be re-evaluated, and then, before
she can return, they’ll say we’ve determined her care level exceeds what we can
provide and we’re terminating her agreement,” said Crystal West Edwards, an
elder law attorney in New Jersey.
Assisted
living operators argue that transfers are often necessary when residents’
health deteriorates and that good communication about changing needs is
essential.
“We
believe providers should be upfront with consumers about their care abilities
[and limitations] and encourage a robust, ongoing conversation with residents
and loved ones about their needs — especially as they evolve,” wrote Rachel
Reeves, a spokeswoman for the National Center for Assisted Living, in an email.
Atria
Senior Living, which operates assisted living communities in more than 225
locations in 27 states and seven Canadian provinces, declined to comment on the
circumstances of Jones’ eviction in keeping with its policy to protect
residents’ privacy. In an email, a spokesman explained that “we conduct regular
assessments, in accordance with state law, to ensure residents are receiving
the appropriate level of care and to determine whether we can continue to meet
their needs.”
In
Jones’ case, Regan said his uncle William was told by a marketing manager that
his wife could “age in place” at Atria at Foster Square since a wide range of
services — assisted living, memory care and hospice care — were available
there.
The
couple was willing to pay a considerable amount for their move to the upscale
community in July 2017: an $8,000 one-time entrance fee, $10,000 monthly for a
two-bedroom apartment, $500 a month to have medications administered, and extra
charges for help with transfers, being escorted to meals and more frequent
bathing, among other kinds of assistance, that sometimes totaled $2,300 a
month.
But
Jones was becoming weaker. “My biggest mistake was not getting her into memory
care sooner, where she would have received more attention,” Regan said.
In the
weeks before Atria’s eviction decision, Jones had fallen several times, been
hospitalized for an irregular heartbeat, and started on a new blood thinner
medication.
After
Atria’s action, “I lost all confidence in them,” Regan said. Within two weeks,
he found another community, Sunrise of Belmont, for his aunt, who moved into
memory care, and his uncle, who moved into his own apartment — at a combined
cost of nearly $20,000 a month.
While
his aunt is now receiving good care, his uncle was shaken by the move and is
depressed and having difficulty adjusting, Regan said.
Elder
law attorneys and long-term care ombudsmen recommend several strategies. Before
moving into an assisted living community, “ask careful questions about what the
facility will and won’t do,” said Carlson of Justice in Aging. What will happen
if Mom falls or her dementia continues to get worse? What if her incontinence
worsens or she needs someone to help her take medication?
Review
the facility’s admissions agreement carefully, ideally with the help of an
elder law attorney or experienced geriatric care manager. Carefully check the
section on involuntary transfers and ask about staffing levels. Have facility
managers put any promises they’ve made to you in writing.
If a
resident receives an eviction notice — typically 30 days in advance — don’t
move out right away. If the facility says it can no longer manage someone’s
care needs, bring in a physician to evaluate whether assisted living is still a
viable option, said Anthony Chicotel, staff attorney at California Advocates
for Nursing Home Reform. Try negotiating with the facility if you can suggest a
solution to the concern managers are raising.
File a
complaint with your local long-term care
ombudsman’s office, which will trigger an investigation and usually
slow down the process, said Joseph Rodrigues, the state long-term care
ombudsman in California. Ombudsmen represent residents’ interests in disputes
and can help advocate on your behalf, he noted.
Consider
bringing the matter to landlord-tenant court or civil court in your area — a
legal option available when other avenues for appeal are not available. Or ask
for a “reasonable accommodation of the resident’s needs under the federal Fair Housing Act.”
Staying
in place and waiting for the facility to initiate legal action will buy you
time, which should be your goal. Don’t rush to move into another facility
without checking and making sure it will be a better fit, now and in the
future, Chicotel said.
Also
consider whether you want to stay at the current facility. “Do you really want
to be someplace that doesn’t want you?” said Jason Frank, a Maryland elder law
attorney. For most clients, he said, the answer is no.
Finally,
consider adjusting your expectations. “Success for some families is ‘I bought
three years of good care for Mom in assisted living’ and now she’s moved along
in her illness and it’s time for skilled nursing care,” said Judith Grimaldi,
an elder law attorney in New York City.
This
story was produced by Kaiser Health News, an
editorially independent program of the Kaiser Family
Foundation.
https://californiahealthline.org/news/assisted-living-kicks-out-the-frail-cause-we-cant-take-care-of-you-any-longer/?utm_campaign=CHL%3A%20Weekly%20Edition&utm_source=hs_email&utm_medium=email&utm_content=65763362&_hsenc=p2ANqtz-_4eele8u6E99AUwZq9AmOvjCbypiD0OyRhDIS1ZJo0c2A8HMhTrOb5mJzXs9qyadrQUm97yVBsBgSFUQ5g12bFYyCmfg&_hsmi=65763362
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