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Resident Discharge From a Michigan HFA: A Reminder

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Resident Discharge From a Michigan HFA: A Reminder

In Michigan, licensed homes for the aged are a sort of regulatory hybrid, wedged in between heavily regulated skilled nursing facilities and unlicensed assisted living facilities. That middle ground is apparent in the degree to which the Michigan Department of Licensing and Regulatory Affairs (“LARA”) is involved in the facility’s relationship with its residents during discharge situations. Although a licensed home for the aged (“HFA”) is not subject to the detailed procedures for involuntary discharge that apply to skilled nursing facilities, HFAs are not free to approach the eviction process like the typical commercial senior housing landlord. Rather, a licensed HFA must ensure it has met LARA’s discharge requirements before even beginning the eviction process. If not, all its efforts may be for naught.

In Michigan, licensed homes for the aged are a sort of regulatory hybrid, wedged in between heavily regulated skilled nursing facilities and unlicensed assisted living facilities. That middle ground is apparent in the degree to which the Michigan Department of Licensing and Regulatory Affairs (“LARA”) is involved in the facility’s relationship with its residents during discharge situations. Although a licensed home for the aged (“HFA”) is not subject to the detailed procedures for involuntary discharge that apply to skilled nursing facilities, HFAs are not free to approach the eviction process like the typical commercial senior housing landlord. Rather, a licensed HFA must ensure it has met LARA’s discharge requirements before even beginning the eviction process. If not, all its efforts may be for naught.

As a general matter, Michigan HFAs are free to use the landlord-tenant eviction process just like commercial senior housing landlords. Historically LARA has advised that if a resident refuses to move out of the home or does not have a subsequent residential placement upon the effective date of the discharge notice, the HFA may follow the legal eviction process. The difference is, however, that the applicable regulations first require the HFA to provide the resident (and the resident’s authorized representative and placement agency, if any) with a 30-day notice of discharge. (Mich Admin Code R 325.1922(13)). The discharge notice must include: “(a) The reasons for discharge, (b) The effective date of the discharge, and (c) “A statement notifying the resident of the right to file a complaint with [LARA].” Id. If an HFA fails to provide the required notice, the resident may “return to the first available bed.” Mich Admin Code R 325.1922(14). If the HFA still decides to evict the resident, the HFA would have to issue a new discharge notice starting the entire process all over again.

It is crucial for the original discharge notice to include all of the regulatory requirements. Michigan’s standard, court-provided notices (notice to quit and demand for possession) are plainly insufficient; they do not provide the required notice of the right to file a complaint and also arguably fail to clearly communicate the reason for the discharge. A facility’s internal discharge notice also may not satisfy all of the requirements, especially if it was not originally designed for licensed HFAs. If an HFA wants to effectively and efficiently use the judicial eviction process in a manner similar to other commercial senior housing landlords, the HFA must first ensure that the discharge notice it uses complies with regulatory requirements. If not, the HFA may end up restarting the process back to the very beginning.