Pushing Back Against Improper Nursing Facility Evictions

For nursing facility residents, the first rule for avoiding eviction is stupefyingly simple: Don’t move out.

Really. I’m not kidding. Don’t.  Move.  Out.

Even if the rule is simple, of course, the reality of nursing facility evictions can be anything but. I have the luxury of approaching evictions from the attorney’s perspective. I well understand the vast difference between representing someone in an eviction, and facing eviction yourself. And, to be sure, eviction from a nursing facility presents unusual difficulties. Facing an eviction dispute in an apartment rental situation is hard enough, but pressure is magnified when you receive around-the-clock care from your eviction adversary.

‘The law is generally in the resident’s favor.’

That being said, the first rule remains: Don’t move out. This rule is based on an important truth: the law is generally in the resident’s favor. Specifically, if a resident has paid the bill, a facility rarely has grounds to evict. So, in most cases, if the facility threatens eviction or even serves an eviction notice, the resident can fight back and win by staying put and (if an eviction notice has been served) requesting a hearing.

Federal Eviction Law

As COVID recedes to a certain extent, one part of returning to “normal” is an increase in eviction rates. The legal requirements have not changed. Eviction is governed by federal law that applies across the country to any nursing facility that accepts Medicare and/or Medicaid. Because virtually every facility accepts one or (more likely) both of these payment sources, the federal law almost always governs. Under this law, furthermore, eviction is allowed only for six narrow reasons.

  1. Nonpayment.
  2. The resident needs care that can’t be provided in a nursing facility.
  3. The resident does not need nursing facility care.
  4. The resident’s presence endangers others’ health.
  5. The resident’s presence endangers others’ safety.
  6. The facility is going out of business.

The facility generally must give a 30-day written notice of any eviction, although in certain limited circumstances the facility may give “practicable” notice of less than 30 days. To contest an eviction notice, the resident can request an administrative hearing, which will be held in front of a state hearing officer. Exact details vary from state to state.

Residents Usually Are in the Right

In my experience, nursing facilities are more likely to be on solid ground when they allege nonpayment. Some residents do fail to pay and, in a straightforward nonpayment case, a facility has the right to evict, provided that it has complied with procedural requirements.

On the other hand, facilities very rarely have just cause when they seek eviction for a reason other than nonpayment. The vast majority of these eviction attempts are based on reasons Number 2, 4 and 5—in short, the facility is claiming that eviction is justified by the resident’s care needs or behavior. Supposedly the resident needs care that cannot be provided in the facility, or is endangering others by living in the facility.

'Truly “dangerous” residents are few and far between.’

As a practical matter, however, there are virtually no residents who need care beyond what a nursing facility can provide, and nonetheless wish to stay in the facility. If, for example, a person needs to be hospitalized, or requires the ventilator care that rarely is available in nursing facilities, he or she will not need much convincing to move to the type of facility that can provide the necessary services.

Likewise, truly “dangerous” residents are few and far between. A resident with severe dementia may present care challenges and (on a more personal level) irritate both staff and other residents, but the resident with dementia rarely possesses the malice or physical strength to truly endanger others.

Two Common Types of Improper Evictions

Although the law sharply limits nursing facility evictions, too many facilities use eviction as a routine business tool. In one common situation, a facility tells a resident that she must leave when her Medicare Part A coverage is ending, because the facility supposedly is a “rehabilitation facility” that doesn’t provide “custodial care.” This is false. Even if Part A coverage is ending, the resident should be able to stay in the facility with a different reimbursement source, either Medicaid or private payment.

As a result, the facility has no grounds to force the resident out—in truth, they simply are following a Medicare-optimizing business strategy. This resident will be replaced by a different Medicare-reimbursed resident who, after a few weeks in the facility, will in turn be replaced by yet another Medicare-reimbursed resident. And so it goes, indefinitely. References to “rehabilitation facilities” or “custodial care” obscure the reality that the facility likely is Medicaid-certified and, when residents’ Medicare reimbursement ends, it is obligated to accept Medicaid as well.

A second common situation involves a resident who allegedly requires care beyond the facility’s capacity. In my experience, the resident threatened with eviction in this scenario generally possesses some combination of the following: 1) greater than average care needs, 2) a significant level of dementia, 3) a difficult personality (or a family member with a difficult personality), and 4) payment made through Medicaid. In these cases, eviction is absolutely counterproductive—the facility often proposes to transfer the resident to a second nursing facility, which obviously begs the question as to why one nursing facility but not another can provide the necessary care. Indeed, the resident’s condition almost always is well within a nursing facility level of care. Instead of eviction, a facility should address a supposedly “difficult” resident through care planning, which under federal law must include the resident, the resident’s physician, facility staff and others.

What To Do

Even through residents usually are on the right side of the law, they oftentimes lose, generally because they fail to follow the don’t-move-out rule. When threatened with eviction, they feel pressure and leave “voluntarily.” They may be unfamiliar with their rights under federal law and, in any case, are intimidated by the facility’s threats.

Justice in Aging has developed two online resources to assist residents and their advocates. The guide “25 Common Nursing Home Problems—and How to Resolve Them” offers step-by-step advice for residents on eight specific eviction situations. Also, Justice in Aging will soon offer an online toolkit specifically for attorneys and aging network professionals. The toolkit provides template documents for court filings and administrative hearing briefs, as well as consumer education materials for identifying improper evictions.

In addition, and most importantly, readers of this article are likely in a position to make a real difference. The evictions discussed in this article are common only because they are accepted as “business as usual”—not just by nursing facilities, but also by the broader aging services network. You, the reader, can and should push back when a nursing facility threatens eviction inappropriately. Given the pressure faced by residents and their families, they should not have to confront these problems alone.

Eric Carlson is a Directing Attorney for Justice in Aging, in its Los Angeles office, where he maintains a national practice of policy advocacy, litigation and education. He is author of the legal treatise “Long-Term Care Advocacy” (LEXIS Publishing).