As Virginia’s long-term care ombudsman, an advocate for patients in senior living centers, Joani Latimer has witnessed what happens when residents of assisted living facilities are forced to leave.
In some cases, patients have ended up in homeless shelters. Latimer still remembers one resident who was discharged to his local emergency room with a “will not readmit” note pinned to his shirt. In another recent case, a man with partial memory loss was evicted from a facility after it was sold to a new owner. As a COVID-19 mitigation measure, the company implemented a new policy banning residents from leaving the property. But the patient, who routinely volunteered to do community recycling, forgot about the rule.
“So he was going to be evicted for that reason, because of the zero-tolerance policy,” she told lawmakers in a House committee meeting earlier this month. “Those types of things are not allowable under our regulations, but they sometimes happen when facilities don’t follow the appropriate process.”
Under current Virginia law, though, there’s no recourse for residents who are evicted from assisted living facilities — even if it violates state regulations. It’s a loophole that advocates and legislators are hoping to close this session. Currently, expanding those protections hinges on legislation from Sen. Lionell Spruill, D-Chesapeake, that would create an appeals process for residents and their families.
Emily Hardy, an elder law attorney for the Virginia Poverty Law Center, described it as a vital step to restore due process to an often-opaque system. Nursing homes, most of which accept state Medicaid funding, are already subject to an appeals process through the Department of Medical Assistance Services, which can overturn discharges if a hearing officer finds a resident was removed inappropriately.
Assisted living facilities don’t have the same protections. Virginia’s Landlord and Tenant Act, which spells out specific rights and restrictions when it comes to eviction, specifically excludes geriatric residences. And while improperly discharged residents can file a licensure complaint with the state’s Department of Social Services, the agency can’t require facilities to readmit them.
“Licensure can say, ‘Yes, that was a non-allowed reason, you shouldn’t have discharged them,’” Hardy told lawmakers. “But it doesn’t have that hearing process or any way to enforce that ruling.”
The lack of protection is particularly concerning to advocates given the vulnerability of many residents at assisted living facilities. Virginia has much stricter criteria for admitting patients into nursing homes than many other states. That frequently leaves assisted living facilities as the only recourse for residents who can’t live independently but don’t meet the threshold for nursing home care.
“They’re essentially one half-step below nursing homes, at most, as far as the people at the high end of those care needs,” Hardy said. And according to Latimer, discharges are most disruptive to low-income residents who often can’t afford alternative placements — as well as residents with medical or behavioral challenges that can make them a target for removal.
“You think of people with dementia, who make up a huge part of the consumer population that’s looking for assisted living facility care,” she said. “Those individuals are often the ones who are experiencing discharge and upheaval, and it’s particularly traumatic on them to change settings. It just upsets their whole world, and that’s the last thing they need, losing that familiar environment and the staff they know and the community of residents they know.”
It’s still unclear how frequently assisted living facilities improperly discharge residents in Virginia. The state’s ombudsman program logged 63 eviction complaints over the last two fiscal years, but the Department of Social Services doesn’t track discharge numbers, according to the impact statement for Spruill’s bill. Latimer suspects those complaints are only the tip of the iceberg given the lack of regulatory protections and the fact that many residents — and their families — may not realize they can file complaints with the agency or reach out to the ombudsman’s office for help.
Spruill’s legislation seeks to close that knowledge gap by requiring facilities to file copies of discharge notices with both offices. It also lays out a clear process for facilities, including procedures for emergency discharges and other situations when it’s permissible to remove a resident. Those can include failure to pay (provided a resident is given at least 30 days notice and the opportunity to address outstanding bills) and the development of medical conditions that require a higher level of care.
“Assisted living operators want to know what the rules of the road are so they can comply,” said Scott Johnson, a lobbyist for the Virginia Health Care Association-Virginia Center for Assisted Living, one of the state’s largest long-term care industry groups. The association worked on the legislation with both advocates and lawmakers, including Del. Patrick Hope, D-Arlington, who carried the House version of the bill.
The Senate legislation passed through the committee process and the full chamber nearly unanimously with a final floor vote of 39-1 (only Sen. Frank Ruff, R-Mecklenburg, voted no). But its future in the House is still uncertain. Earlier this month, a House finance panel killed a nearly identical bill from Hope on a 5-3 party-line vote, despite the legislation receiving nearly unanimous support from an earlier committee.
“I think we were all surprised when that happened,” Johnson said. The same committee has killed multiple bills that would require state funding to enact, and the legislation from Hope and Spruill comes with a potential $500,000 start-up cost to set up a new database for discharges, according to an estimate from the Department of Social Services.
Hope, though, pointed out that the changes would otherwise be a nominal expense for the state, only requiring two new staff positions. Both he and advocates are pushing for the House Appropriations committee to reconsider their position on the Senate bill, which Hope said could have a huge impact for residents.
“This is a civil rights issue, to make sure people in assisted living facilities have this due process,” he said. “There are residents who really are at risk, if they’re kicked out, of being homeless, of not having anywhere else to go.”
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