The threat of eviction presents a concern for assisted living residents. State ombudsman programs for long-term care received 3,265 complaints nationwide related to evictions in 2020, per The Washington Post.

Those who use Medicaid to pay for their care, often through a Medicaid home and community-based services (HCBS) waiver, can face eviction when a Medicaid-participating facility refuses to accept Medicaid’s coverage.
Preventing and Responding to Evictions

Nonprofit Justice in Aging, in partnership with the National Academy of Elder Law Attorneys (NAELA), has published a fact sheet to help advocates prevent and respond to evictions on behalf of assisted living residents. The fact sheet addresses strategies for handling a facility that refuses to accept Medicaid from an existing resident, as well as those that do not allow for appeals.

Federal law gives rights and protections to Medicaid beneficiaries facing eviction from an assisted living facility. Facilities participating in Medicaid must accept Medicaid payment in full and cannot require beneficiaries to pay privately. One provision has historically been underutilized, and another is new. Not knowing these protections exist, residents may acquiesce when told to leave.

The Attorney’s Role
When a Medicaid-participating facility declines Medicaid from an existing resident, an attorney can help their client by informing the Medicaid-participating facility that federal law requires it to accept Medicaid and, in some cases, commencing litigation against the facility or the state. While the facility may act like the resident has no choice but to move, the attorney should advise the resident to remain in the facility.

Nonpayment of Rent
If the facility begins an eviction action and argues that the resident has not paid rent, the attorney can assert that the facility bears responsibility for the nonpayment. By refusing to accept Medicaid, the facility denied itself payment.

Certified and Partially Certified Facilities

In some cases, the facility may claim that it has no Medicaid-certified unit available. If this happens, the attorney should request documentation and research state law and policy. The client should remain in the facility.

• Completely certified facilities have no basis to claim no certified units. The attorney should explain that the facility’s certification status entitles the client to stay.
• Individuals living in certified units in partially certified facilities are also entitled to remain in their residences.
• When the client lives in a noncertified unit in a partially certified facility, the attorney’s role is more complex. The attorney may request that the resident move to the next available certified unit. The advocate should review whether the state’s limited certification policy violates federal law and explore litigation against the state.
• Some facilities may have “duration of stay” agreements in their admission agreements, which require that the resident pay out of pocket for a certain period before using Medicaid. Banned since the 1990s, these types of agreements are unenforceable. Where states require facilities to permit duration of stay agreement policies, litigation should target the state.

Opportunities to Appeal
Facilities may also deny residents appeal opportunities. When issuing eviction notices, facilities may operate as if residents have no appeal rights.

However, a new federal rule gives residents of assisted living facilities the same eviction protections as tenants.

• The state’s law may list assisted living facilities as eviction-protected; or
• The state may require the lease or agreement with the facility to provide equivalent protections. When there is no state law providing eviction protections, advocacy can be more complex. Still, federal law gives the resident the right to an unlawful detainer trial. Affirmative litigation may target the facility for not offering sufficient eviction protections or the state for not inadequately implementing federal law.

Key Takeaways
When representing assisted living residents facing Medicaid-related eviction, advocates should remember the following:

• The resident should not move out.
• Refusing to accept Medicaid bars claims that the resident did not pay rent.
• Effective representation includes assertive communication with facilities and a clear understanding of federal law’s protections for residents.

Read the full report.