Q: My mother lives in assisted living and her Medicaid long term health care benefits have run out. Will she be asked to leave if she can't pay?

A: Unfortunately, yes, a facility has the legal right to evict a resident for non-payment of the monthly fees. This applies to a nursing home as well as an assisted living facility. While there are variations from state to state, generally the facility must do all of the following:

  • Prepare a summary of the resident's mental and physical health status
  • Prepare a post-discharge plan of care for the resident which will assist the resident to adjust to his or her new living environment
  • Notify the resident and a family member or legal representative of the resident of the pending discharge at least 30 days in advance of the discharge, letting them know of the resident's right to appeal the discharge action to the state.

Under federal law, which only applies to nursing homes and not assisted living facilities, the resident may possibly qualify for a "hardship waiver," if the move would deprive the resident of medical care such that the resident's health or life would be endangered or it would deprive the resident of food, clothing, shelter or other necessities of life. So, for example, that could occur if there is no place for your mother to move or no one to care for her properly after she is evicted. Application for the waiver must be made to your state's Department of Health and Human Services or equivalent agency.

In addition to eviction for non-payment, assisted living facilities sometimes evict residents whose medical care needs exceed the level of care that the facility can provide. In other words, the resident really needs a nursing home level of care and arrangements should be made to move the individual to a suitable nursing home.

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Note that a nursing home that accepts Medicaid patients cannot evict a private-pay resident who runs out of funds and is accepted by the Medicaid program. However, if the nursing home does not accept Medicaid patients, then the resident may be evicted once his or her funds run out, under the rules discussed above.

Finally, the Medicaid program in many states will provide at least partially for residents in an assisted living facility under the Home and Community Based Services ("HCBS") program. Thus, you should inquire about this before your mother's money is completely gone; it may turn out that she will be able to have the Medicaid program supplement her Social Security income and completely cover her monthly expenses in the assisted living facility, allowing her to remain there among her friends.