By Walker Orenstein
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Her lease would be canceled and her medical service ended within days. Layman’s family suspected they were being punished after clashing with leadership at New Perspective Senior Living, an assisted living facility in Mahtomedi, over the quality of their mother’s care. New Perspective said Layman’s mother needed a higher level of medical help.
Yet there was little the family could do but look for new housing for their mother. The search was “horrifying,” Layman said, and complicated by a pandemic that had killed dozens of Minnesota seniors every week. “It has been as traumatic as we expected,” she added.
While Gov. Tim Walz has instituted a temporary ban on most evictions in Minnesota, current law provides no way to appeal terminations of medical services at assisted living facilities, which can force people from their homes. “There is no right to due process,” said Cheryl Hennen, Minnesota’s ombudsman for long-term care.
And though state lawmakers passed a new set of protections in 2019 for seniors who face a suspension of medical care, many of the rules are not scheduled to be implemented until August 2021.
Stories like Layman’s have spurred legislators to propose a bill that would speed up the start date for new regulations. But that effort has met resistance from the industry, and it is just one of many issues lawmakers are addressing during a brief special session.
In the meantime, senior advocates say the elderly remain unusually vulnerable to losing housing during an outbreak that puts older Minnesotans at the highest risk of death.
A fractured relationship, then an eviction
Layman’s mother, 77, first arrived at New Perspective in April 2019. She had moved into memory care about three years ago, and left her first assisted living home after staff at the facility made medical mistakes and was not providing adequate services, Layman said.
At New Perspective, staff assured the family that the experience would be different. But the situation soon turned sour. Layman said New Perspective took her mother — an affable former salesperson with a penchant for travel — on fewer excursions outside the facility than expected, and failed to deliver on promised activities such as video calls with family. But, more important, Layman’s family said New Perspective made errors in giving medication, was understaffed, undertrained and resisted family efforts to put a camera in their mother’s room. (State law authorizes cameras.)
Then, in early June, Layman’s mom fell and fractured her pelvis. A visiting doctor recommended the family consider moving her into a nursing home, though Layman said they felt the doctor was making a suggestion rather than an urgent directive.
On June 15, the family received letters from the facility giving notice of eviction on June 23 along with a notice of a termination of medical services on June 19. The letter cited “recent change” in the condition of Layman’s mother “resulting in the need for services that exceed the current service plan and that cannot be safely met by the community.”
Layman contends her mother’s health could have been managed by the facility, and said New Perspective failed to actually detail why they believed her mother could not be cared for there. She sought help from attorneys and state officials, and believes the service termination was pursued in retaliation after the clashes over the camera and standards of care.
In a prepared statement, New Perspective’s vice president of marketing and communication, Doug Anderson, said the facility “has not and will not terminate its services to a resident out of retaliation.”
Despite the turbulent experience at New Perspective, Layman felt the prospect of moving her mother, who had weeks to live, seemed worse than trying to improve relations. “To be told we’re looking at weeks — it just seems really cruel to evict her and cruel to try and do a move,” Layman said.
Layman could have tried to fight the eviction under the provisions of Walz’s moratorium. But there is little that can be done under Minnesota law to contest the suspension of medical care at an assisted living facility, which can effectively serve as an eviction. Without care, Layman said her mother would have no help bathing, eating, or receiving medications. “This would just be leaving mom in a room,” she said.
While Anderson declined to give any specific information related to Layman’s mother, citing federal and state privacy laws, he said residents sometimes develop “needs that warrant a higher level of care than the services we can offer within an assisted living setting.” That higher level of care may include a nursing home, Anderson said, “which provides for around the clock onsite nursing care.”
When a resident does need more care, Anderson said, the facility works with doctors, health care providers, a resident’s legal representative and more “in supporting any transition to another setting.” (Layman says that New Perspective offered no help in finding new care for her mother.)
“We continually focus on everything we can do to promote the health, safety, dignity, rights and best interests of each of our residents,” Anderson said.
New regulations coming. In 2021.
Layman’s story is not unique. In 2019, the Legislature approved new protections from service terminations for residents of assisted living facilities, including several protections that were already afforded to people in nursing homes and group homes. The legislation also defined and prohibited retaliation, and notably provides a right to appeal a termination of medical services to an administrative law judge.
The measures came as part of a sweeping set of new regulations that created a licensing system for assisted living facilities after a series of stories by the Star Tribune detailed widespread elder abuse in Minnesota’s long-term care industry. Ron Elwood, an attorney for Legal Aid, said Minnesota was the last state in the country to license assisted living.
Still, much of the 2019 law, including the right to appeal, does not go into effect until August 2021.
The gap was intentional. It was meant to allow the state and assisted living providers to piece together the complex new licensing system. But lawmakers had not anticipated a deadly pandemic surfacing.
Hennen, Minnesota’s long-term care ombudsman, said complaints of evictions and service terminations at assisted living facilities and nursing homes have continued during the COVID-19 outbreak. Between March 1 and June 26, their office opened 79 cases in response to complaints of violations of resident rights in assisted living facilities, and 71 cases in nursing homes.
Hennen said her office, along with the state Attorney General and other senior advocates, have prevented some evictions at long-term care facilities, though some people likely slip through the cracks if they don’t know their rights. She urges people to contact the office if they have questions or concerns about transfers or discharges from an assisted living facility or nursing home.
Even so, she said there is little her office can do to help someone contest an arbitrary service termination.
Suzanne Scheller, an attorney for Layman and legal adviser for Elder Voice Family Advocates, which helped write the 2019 law, said any service termination “appears to be more egregious because of the time we’re living in.”
In some instances, Scheller and Hennen said a senior who can’t find proper help and housing after their medical care is suspended sometimes must move to a hospital or a homeless shelter.
Closing ‘back door’ evictions
In light of the pandemic, a group of state lawmakers are hoping to speed up implementation of parts of the 2019 law.
State Rep. Ginny Klevorn, DFL-Plymouth, and Sen. Scott Dibble, DFL-Minneapolis, introduced a bill this week that would give residents of assisted living facilities the right to appeal to an administrative law judge starting in August, among other measures aimed at limiting service terminations and making them less difficult for residents.
“In cases where families or individuals are having their services terminated it’s not an eviction,” Klevorn said. “But if they can’t get the services they need they have to leave. It’s a way to look at this back door and make sure that it’s closed.”
The Legislature is currently in its second special session of 2020, and lawmakers are focused primarily on negotiating a bonding bill of construction projects, tax measures, and police reforms in the wake of Minneapolis police killing George Floyd.
Klevorn’s measure also faces opposition from some senior care businesses.
Patti Cullen, president and CEO of Care Providers of Minnesota, a trade association that represents long-term care providers, said they supported the 2019 law after lengthy negotiations. Some provisions could be implemented faster, Cullen said, such as a measure to require in-person meetings with residents before services are terminated.
But she said putting new rules onto assisted living facilities that are laser focused on COVID-19 prevention could prove burdensome. In April, the Minnesota Department of Health, which would regulate the assisted living industry, proposed delaying licensing under the 2019 law for another year because the agency has been fixated on other aspects of pandemic response. (The agency did not comment on Klevorn’s legislation.)
Cullen said Care Providers support a delay, and said Klevorn’s bill “can’t be operationalized because it’s applying a new system to a license that doesn’t exist yet.”
“We’ve been kind of struggling with how that language would actually work, just to be blunt,” she said.
Cullen also defended medical service terminations. The vast majority, she said, are because a resident does need a higher level of care than a facility can provide. Some are because a resident is a violent risk to themselves or others. And others are because a resident can’t pay for services. Plus, eviction protections remain in law the same as they are for any renter, Cullen said.
Sen. Karin Housley, a St. Mary’s Point Republican who chairs the Senate’s Family Care and Aging Committee, said she supported consumer protections for residents of assisted living facilities but also had concerns about the burden on care providers. She said a version of Klevorn’s bill circulated by Elder Voice was “overly broad” and she opposed parts unrelated to the service terminations.
Housley said senior advocates and the long-term care industry would need to reach a compromise in ongoing private negotiations to pass anything during the special session in Minnesota’s politically divided Legislature. The GOP has a majority in the Senate, while Democrats have a majority in the House.
A plea for action
Layman also waded into the political debate, saying she hopes new regulations would help people in her family’s situation in the future. She still believes, however, that problems with the assisted living industry run deep, and that New Perspective tried to run afoul of Walz’s existing eviction protections.
“The only reason we had her live there was all of our research and all of the people we talked to said it would be a good place,” Layman said. “And then it wasn’t. Who is to say the next place would be any better?”
Her mom did eventually relocate to a St. Paul nursing facility. But the move was painful, Layman said, and her mother has declined further. She now has days to live.
“I would just implore whoever the decision makers are in this to expedite the rules,” Layman said.
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In Minnesota, the pandemic doesn’t prevent seniors from being forced to leave assisted living facilities
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