Medical insurance and Medicaid and stethoscope.
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Assisted living providers might be breaking state and federal laws in refusing to accept Medicaid or in attempting to evict residents without giving them an opportunity to appeal, according to two elder advocacy organizations.

In the wake of the federal home- and community-based final rule that became effective in March, Justice in Aging and the National Academy of Elder Law Attorneys created a new resource — Federal Medicaid Law and Assisted Living Advocacy: What to do when a facility refuses to accept Medicaid, or attempts to evict without offering appeal rights — that offers legal analysis and advocacy strategies to consumers and others.

The HCBS settings final rule in part is meant to protect beneficiaries’ autonomy in making choices and controlling decisions that affect their lives. Senior living provider advocates, however, had warned that the regulation could lead assisted living communities to stop accepting Medicaid as a payment source, causing some residents to need to move to nursing homes or other settings.

The Justice in Aging and NAELA resource highlights two prominent issues facing Medicaid-eligible assisted living residents.

Refusing Medicaid from existing residents

Medicaid increasingly can cover care in assisted living and most often is provided through HCBS waivers. A challenge, according to Justice in Aging and NAELA, is that Medicaid-participating assisted living communities sometimes refuse to accept Medicaid from an existing resident who previously paid a private-pay rate, or communities may try to evict a resident with no opportunity to appeal.

Eric Carlson, Justice in Aging director of long-term services and supports advocacy and the resource author, told McKnight’s Senior Living that providers should play by established rules for health insurance — those certified to accept a particular insurance can’t refuse that insurance and attempt to bill someone on a private-pay basis.

According to the National Center for Assisted Living, 61% of assisted living providers are Medicaid-certified, and 18% of assisted living residents rely on Medicaid to pay for daily services.

An assisted living community that refuses to accept Medicaid from an existing resident who previously paid the private-pay rate is “on shaky legal ground,” according to the resource. Federal law states that an assisted living community that accepts the payment cannot impose a private-pay charge on a Medicaid-approved resident.

“If a resident has spent down to Medicaid levels while in the facility, it’s a bit heartless to refuse the resident’s Medicaid at that point, after accepting probably tens of thousands of dollars at a private-pay rate,” Carlson said. “The refusing-to-accept Medicaid issue has been a problem for years. Often, the fault lies with both the state and the facility, since neither the state licensing agency nor the facility may pay much attention to Medicaid beneficiary protections.”

In fact, state laws and policies can complicate the process, according to the groups.

Providers cannot enforce “duration of stay” provisions — banned since 1990 — in their admission agreements. In such agreements, residents commit to paying on a private-pay basis for a specified number of months as a prerequisite for the community accepting Medicaid. An issue, however, is that a few states require providers to disclose their policy on duration of stay agreements, or limited unit certification, which implies state approval of those policies. In those cases, the resource recommends that consumers direct advocacy and litigation at the state rather than the provider. 

Eviction attempts

Another issue addressed in the resource are assisted living evictions based on Medicaid status.

According to the resource, assisted living eviction protections for residents are weak or nonexistent in many states. To address this issue, the HCBS final rule set minimum levels of eviction protections for residents of assisted living communities who receive Medicaid funding through HCBS waivers, the HCBS State Plan Option or the Community First Choice program.

Under the federal regulation, a resident must have the same protections that exist in landlord-tenant laws. States either can include assisted living communities among the settings covered by the landlord-tenant eviction protections, or a state must ensure that residents receive comparable protections through a lease or similar agreement with an assisted living community. 

Carlson said that states have implemented the new HCBS regulations in a variety of ways, meaning that residents’ rights vary “significantly” from state to state. Sometimes, a state is in compliance with the federal regulations but protections are poor due to deficiencies in state law, he said. Other times, a state may not have implemented the federal regulations well.

“There are, of course, situations where the facility is at fault; in these situations, it may be a combination of the facility not knowing the law well and also wanting to have discretion in forcing residents to leave,” Carlson said, adding that the situation leaves residents vulnerable to being taken advantage of by some providers. “Residents deserve basic due process protections,” he added.

None of this information means that residents can’t be evicted, Carlson said, but assisted living communities must follow the rules and give residents whatever appeal opportunities are provided for in state law.