By Kate Masters

(VM) – It was just a few weeks before Christmas when Elizabeth Northen learned her partner, Nina, was being evicted from the assisted living facility where she had been staying for the last six months.

Together for nearly 28 years, the pair had met on the green where Nina was an instructor with the Ladies Professional Golf Association. She was an avid artist and loved animals more than anyone Northen had ever met. But in 2017, Nina was diagnosed with early onset Alzheimer’s disease, and in May of 2021, Northen made the gut-wrenching decision to place her in a memory care center in Richmond.

“I needed to know that I had her safe 24/7,” she said. According to Northen, the facility — run by Sunrise Senior Living — had assured both her and Nina’s daughter that they could accommodate the needs of the 68-year-old, who was younger than many other residents.

 Elizabeth Northen with her partner, Nina Pryor, on right.

But after Nina’s time at Sunrise, Northen became an avid advocate for legislation designed to protect other Virginians from similar experiences. And on Monday, she celebrated when the Virginia General Assembly passed SB 40, a bill aimed at closing a loophole in Virginia law that allows assisted living facilities to evict residents with no legal recourse.

The legislation still has to be signed by Gov. Glenn Youngkin to become law. But advocates are hopeful it will provide protections for assisted living residents, who — in many cases — just narrowly miss the threshold for nursing home care.

Northen found herself living through the same situation in early December. Despite the facility’s assurances that they could care for Nina, Northen said they frequently placed her in common areas next to a male resident who had a habit of yelling loudly. When that happened, Northen said Nina sometimes became frightened and struck the man on his shoulder. In those instances, she said staff at the facility would remove Nina and sedate her (Sunrise did not respond to a request for comment).

“And I always thought that if you had a staff who had — call it training, call it sensitivity, call it whatever — they wouldn’t keep putting her next to him,” Northen said. “And if they did, then they would use the skills the marketing team claimed they had to do something when he would grow agitated.”

The facility’s final response, after months of complaints, was telling Northen that she had 30 days to find another place for Nina. Sunrise also required her to pay out-of-pocket for an additional aide to watch Nina for the duration of her stay.

By then, Nina was already in hospice care, Northen said. After several panicked weeks of trying to find an alternative facility, she finally made plans to bring Nina home after Christmas. But before she had the chance, Nina died on Dec. 31, just a few days before she was scheduled to leave Sunrise.

“I’m 69 and I’ve had life experiences, so when I tell you this is the worst life experience I’ve ever had, I’m saying something,” Northen said. “And to think that other people are going through this — I just can’t believe we’re allowing it to happen.”

Under Virginia law, though, there are few options for residents facing evictions. While most nursing homes are subject to an appeals process through the Department of Medical Assistance Services, the same protections don’t exist for assisted living facilities, which are overseen by the state’s Department of Social Services. And Virginia’s Landlord and Tenant Act, which spells out specific rights and restrictions when it comes to eviction, specifically excludes geriatric residences.

The state’s long-term care ombudsman program, which advocates for residents in senior living facilities, can attempt to mediate disputes. But there’s no requirement for assisted living facilities to cooperate, according to director Joani Latimer. And while residents can file licensure complaints with the Department of Social Services, the agency can’t require facilities to readmit them.

Licensure can say, ‘Yes, that was a non-allowed reason, you shouldn’t have discharged them,'” Emily Hardy, an elder law attorney for the Virginia Poverty Law Center, told lawmakers in a hearing last month. “But it doesn’t have that hearing process or any way to enforce that ruling.”

SB 40, sponsored by Sen. Lionell Spruill, D-Chesapeake, would close that loophole by creating an enforceable process for appealing evictions. Under the final version of the legislation, facilities could only discharge residents for specific reasons, including repeated nonpayment or the development of new, more serious medical conditions that the facility isn’t licensed to handle. 

The Virginia House of Delegates. Delegates voted Monday to pass legislation that will provide protections for residents evicted from assisted living facilities in Virginia. (Ned Oliver/Virginia Mercury – Aug. 30, 2018)

If facilities choose to proceed with an eviction, they would be required to provide relocation assistance and information on how to appeal the decision. And if the department found that an assisted living center improperly discharged a resident, it could require the facility to continue providing care after a hearing process.

“It does feel like a victory after so many years without due process,” Hardy said on Monday. The bill would also require facilities to notify both DSS and the state’s long-term care ombudsman after discharging a resident — a crucial step in tracking the problem. 

Currently, the agency doesn’t have a way of tracking those statistics, according to an impact statement for the legislation. Latimer said the state’s long-term care ombudsman program has  logged 63 eviction complaints over the last two fiscal years, but suspects those numbers are just the tip of the iceberg. 

“Since there have historically been so few protections, I think many people aren’t aware there’s a place they can turn to,” she said. And often, the decisions tend to disproportionately affect residents with the fewest alternatives for care.

“We have known situations where an individual is evicted from an assisted living facility and ends up in a homeless shelter because they have nowhere else to go,” Latimer added. “That’s why these kinds of protections are so fundamental.”