Thursday, November 30, 2017
Recently I wrote about a high profile suit filed by AARP attorneys on behalf of residents at a California skilled care (nursing home) facility to challenge evictions.
I've also been hearing about more attempts to evict residents from Continuing Care Communities, also known as CCRCs or Life Plan Communities. For example, in late 2016 a lawsuit was filed in San Diego County, California alleging a senior's improper eviction from a high-end CCRC. The woman reportedly paid a $249k entrance fee, plus additional monthly fees for 15 years. When she reached the age of 93, however, the CCRC allegedly evicted her for reasons unconnected to payment. The resident's diagnosis of dementia was an issue. Following negotiations, according to counsel for the resident, Kelly Knapp, the case reportedly settled recently on confidential terms.
Is there a trend? Are more CCRC evictions happening, and are they more often connected to a resident's diagnosis of dementia and/or the facility's response to an increased need for behavioral supervision? If the answer is "yes," then there is a tension here, between client expectations and marketing by providers. Such tension is unlikely to be good news for either side.
CCRCs are often viewed by residents as offering a guarantee of life-time care. Even if any promises are conditional, families would not usually expect that care-needs associated with aging would be a ground for eviction.
The resident and family expectations can be influenced by pricing structures that involve substantial up-front fees (often either nonrefundable or only partially refundable), plus monthly fees that may be higher than cost-of-living alone might explain. Marketing materials -- indeed the whole ambiance of CCRCs -- typically emphasize a "one stop shopping" approach to an ultimate form of senior living.
In one instance I reviewed recently, the materials used for incoming residents explained the pricing with a point system. The prospective resident was told that in addition to the $100+k entrance fee, an additional daily fee could increase as both "medical and non-medical" needs increased. A resident who "requires continual and full assistance of others . . . is automatically Level C" and billed at a higher rate. The graded components included factors such a need for assistance with "cognition, mood, or behavior," or "wandering." All of that indicates dementia care is part of the "continuing" plan.
CCRCs, on the other hand, may turn to their contract language as grounds for an eviction. Contracts may have language that attempts to give the facility sole authority to make decisions about a resident's "level" of care. Sometimes that authority is tied to decisions about "transfers" from independent living to assisted living or to skilled care units within the same CCRC, as the facility sees care needs increasing. Even same-community transfer decisions can sometimes be hard for families. Complete evictions can be even harder to accept, especially if it means a married couple will be separated by blocks or even miles, rather than hallways in the same complex.
Alternatively, the facility may turn to a provision in the contract that gives the provider sole authority to make a decision on "termination" of the contract if the facility decides it cannot safely provide the level of assistance or care needed. I've also seen contracts that attempt to reserve an almost unlimited right to terminate the contract for "behavior," or "any other reasons." In my contract classes, students are alert for the tension between high upfront fees and unreasonably broad contract "termination" clauses. The focus is on whether this is a textbook example of "unconscionable" terms. In addition, reliance on high fees and unlimited rights to terminate the contract, may trigger concerns about breach of an implied covenant of good faith and fair dealing. Compare Bjornstad v. Senior American Life Ins. Company, 599 F. Supp. 2d 1165 (D. Az. 2009) (finding a factual issue on whether the insurer breached an implied covenant of good faith and fair dealing in denying "home health" coverage for an elderly insured client who was living in an assisted living facility).
Pennsylvania law does not "mandate" life-time care by CCRCs, nor does it require a CCRC to offer specific levels of care. Rather, Pennsylvania law specifies that "no providers shall engage in the business of providing continuing care" without a certificate of authority. 40 P.S. Section 3204. Pennsylvania, along with many other states that regulate CCRCs, mandates certain disclosures, but allows providers to use the disclosures to define the terms and, in essence, limit or condition the scope of care offered. The contract, thus, is a key document.
Other laws may, however, also restrain the ability of CCRCs to market themselves as offering lifetime services if they also want to preserve options to evict a resident for reasons such as dementia or other health conditions. The laws include federal and state Fair Housing laws. For interesting discussions of Fair Housing laws, see the unreported decision in Herriot v. Channing House (USDC, Northern District of California, 2009, also available a 2009 WL 225418 ), and an article reporting on a specific Florida case, in Continuing Care Retirement Communities Versus The Fair Housing Act, published in 2007 in Marquette Elder's Advisor. State "consumer protection" laws may also provide residents with significant remedies (including attorneys fees), especially for misrepresentations made during marketing.
A core question when reviewing eviction disputes arising in CCRCs is why the facility would take such an action, especially as eviction seems so inconsistent with the "continuing care" or "life plan" mission. In reviewing disputes, I think the reasons include one or more of the following:
- a history with the specific resident, demonstrating clear risks to safety for self or other residents, despite reasonable attempts to accommodate the health condition;
- a perception that the resident does not need "skilled care" but does need a secure, locked facility because of the behaviors in question;
- an attempt to avoid increased costs to care for a resident who needs constant monitoring but not medical care covered by Medicare or Medicaid;
- an attempt to allay issues with other more active or more healthy residents who are bothered by a resident with growing dementia;
- concern that residents with problematic behaviors impact the facility's ability to market to younger or healthier prospective residents
The legal validity of such reasons is at the heart of any contested eviction. Sometimes I've also seen instances where the timing of the "suggested" eviction seems tied to the resident's diminishing savings or monthly income, especially if residents are no longer able to pay for full care. Especially for nonprofit CCRCs, such timing may raise questions about why providers are granted tax exempt status if they are not fulfilling lifetime care missions to "house the aged."
I also think a more subtle and "modern" explanation may be emerging for what might be increased use of termination clauses to evict a resident. There is a growing awareness in senior housing, that dementia care (or memory care) is different than "assisted care" or even "skilled care," in terms of the need for staffing levels, the type of housing provided, and the training of the workers. I've seen many CCRCs -- sometimes at the insistence of residents -- adding dementia care wings or units to existing CCRCs. Fully occupied and well funded CCRCs have a better financial ability to respond to the growing market for "life plan" care that includes the possibility of dementia care.
Ironically, if there is a trend towards dementia-driver evictions, that increases the burden on prospective residents and their families who are searching for the best available care to have heightened awareness of the limits of what it can mean for facilities to offer "life plans" or "continuing care" communities.