08:04 - Source: CNN
The art of aging

Story highlights

Assisted living facilities may simply say "we can't take care of you any longer"

Evictions top the list of grievances about assisted living received by long-term care ombudsmen

Elder law attorneys and ombudsmen recommend several strategies

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.