The California Department of Social Services recently confirmed that an assisted living resident cannot be evicted for non-payment when he or she is approved for SSI by the Social Security Administration, and accordingly begins paying the lower rate set by state law. This lower rate trumps whatever higher rate may have been set in the resident’s original admission agreement.
In California, an assisted living facility is called a “residential care facility for the elderly (RCFE). These facilities are licensed and inspected by the Community Care Licensing Division of the California Department of Social Services.
In the letter, addressed to an attorney representing facilities, the state explains that a facility has the right to evict for “[n]onpayment of the rate for basic services.” Cal. Code of Regs tit. 22, § 87224(a)(1) (emphasis added). Another regulatory section defines “basic rate” as “the SSI/SSP established rate, which does not include that amount allocated for the recipient’s personal and incidental needs.” Cal. Code Regs. tit 22, § 87101(b)(1). Another regulation takes the next steps and states: “If the resident is an SSI/SSP recipient, then the basic services shall be provided and/or made available at the basic rate at no additional charge to the resident.” Cal. Code Regs. tit. 22, § 87464(e).
Thus, what can an SSI beneficiary be required to pay? Currently, an SSI beneficiary living in a California assisted living facility receives $1,086 monthly; the facility may charge no more than $961, leaving a personal needs allowance of $125 to be retained by the resident. See Cal. Dep’t of Soc. Servs., Adult and Senior Care Update (Fall 2009), http://ccld.ca.gov/res/pdf/AS1009.pdf. If the resident receives SSI as a supplement to other income, and thus receives an “extra” $20 due to the SSIs program’s any-income disregard, the extra $20 is also retained by the resident, unless the admission agreement specifies that the facility has a right to the extra $20.
This issue highlights an important question for any state’s assisted living program: what are the protections for persons dependent upon SSI and/or Medicaid (in states that allow Medicaid money to be used for assisted living services). Federal nursing facility law establishes that, if a nursing facility is Medicaid-certified, the facility must accept the Medicaid rate when a resident switches from private payment to Medicaid. See, e.g., 42 U.S.C. § 1396r(c)(4)(A); 42 C.F.R. § 483.12(c)(1). State assisted living regulations should contain similar provisions for both SSI and Medicaid, to assure that low-income residents are treated fairly.
The letter is available on NSCLC’s website, www.nsclc.org (Letter from Thomas Stahl, Chief, Policy Development Bureau of the Community Care Licensing Division, to Joel Goldman of Hanson Bridgett LLP). Any questions should be directed to Eric Carlson in NSCLC’s Los Angeles office, email@example.com.