What Must Assisted Living Providers Do to Protect Medicaid Beneficiaries?

Following 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. This article provides legal analysis and advocacy strategies to consumers and others.

McKnight’s Senior Living’s recent article entitled, “Assisted living providers must pay attention to Medicaid beneficiary protections in HCBS regulations, groups warn,” says that the home- and community-based services final rule in part is designed to protect beneficiaries’ autonomy in making choices and controlling decisions that affect their lives. Senior living provider advocates, however, had cautioned 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 resource highlights two prominent issues facing Medicaid-eligible assisted living residents.

1. Refusing Medicaid from existing residents. Medicaid increasingly can cover care in assisted living and is often provided through HCBS waivers. However, a challenge is that Medicaid-participating assisted living communities sometimes won’t 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.

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 provides that an assisted living community that accepts the payment cannot impose a private-pay charge on a Medicaid-approved resident. In fact, state laws and policies can complicate the process, according to the groups. Providers cannot enforce “duration of stay” provisions. In these agreements, residents commit to paying on a private-pay basis for a specified number of months as a prerequisite for the community accepting Medicaid. However, some 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.

2. Eviction attempts. A second issue detailed in the resource is assisted living evictions based on Medicaid status. 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 federal regulation, a resident must have the same protections in landlord-tenant laws. States can either 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.

States have implemented the new HCBS regulations in various ways, meaning residents’ rights vary “significantly” from state to state. Sometimes, a state follows federal regulations, but protections are poor because of deficiencies in state law. Other times, a state may not have implemented the federal regulations well.

None of this information means that residents can’t be evicted. However, assisted living communities must follow the rules and give residents the appeals provided by state law.

Reference: McKnight’s Senior Living (Oct. 13, 2023) “Assisted living providers must pay attention to Medicaid beneficiary protections in HCBS regulations, groups warn”