Does the CDC’s Order preventing evictions apply to residents in assisted living?
On September 4, 2020, the Centers for Disease Control (CDC) issued a national moratorium on residential evictions to prevent the further spread of COVID-19. Most commentators focused on the effect of this order on traditional landlords and tenants, but of course we wondered whether it applies to residents in assisted living and other group home environments.
After researching the issue, we can say that the CDC’s moratorium on evictions (hereinafter “the Order”)[1] will likely apply to evictions from assisted living facilities (“ALFs”), though the Order comes with qualifiers. It is important to note up front that this Order applies only to evictions for non-payment. It does not apply to involuntary discharges for reasons other than non-payment, such a discharge due to care requirements in excess of the ALF’s ability to manage, or other reasons mentioned below.
While this article uses Colorado law as the underpinning for our conclusions, the principles are fairly standard throughout the country. Therefore, it is likely the analysis and conclusions hold true in other states and that the CDC Order will apply equally.
The Order is Potentially Applicable
The Order states that “a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order.”[2]
The first question is whether an ALF is a residential property. The Order defines a “residential property” as
any property leased for residential purposes, including any house, building, mobile home or land in a mobile home park, or similar dwelling leased for residential purposes, but shall not include any hotel, motel, or other guest house rented to a temporary guest or seasonal tenant as defined under the laws of the State, territorial, tribal, or local jurisdiction.
“Assisted living facility” is neither explicitly included nor excluded from the list of property types constituting a “residential property” under the Order. However, regulations and case law favor an interpretation of an ALF as a residential property. In Colorado, for example, an “assisted living residence” is defined as:
A residential facility that makes available to three or more adults not related to the owner of such facility, either directly or indirectly through a resident agreement with the resident, room and board and at least the following services: personal services; protective oversight; social care due to impaired capacity to live independently; and regular supervision that shall be available on a twenty-four-hour basis, but not to the extent that regular twenty-four hour medical or nursing care is required.[3]
Colorado courts have also found that an ALR is a residential property. In Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co., 413 P.3d 219 (Colo. App. 2017), the court held that the ALR was a residential facility for purposes of the Homeowners Protection Act. The Broomfield court used the common tools of statutory construction to define “residential property.” The court emphasized the dictionary definitions of “residential,” and that the property “was specifically designed for multi-family residential use, including senior assisted and independent living residences.”[4] The court also relied on parallel caselaw:
Indeed, this court has consistently interpreted “residential” to mean for the purposes of living or dwelling. Houston v. Wilson Mesa Ranch Homeowners Ass'n, 2015 COA 113, ¶ 16, 360 P.3d 255; see also Jensen v. City & Cty. of Denver, 806 P.2d 381, 385 (Colo. 1991) (“Apartments and boarding/rooming houses used on a long term basis ... properly are included within the definition of residential property.”); Double D Manor, Inc. v. Evergreen Meadows Homeowners' Ass'n, 773 P.2d 1046, 1051 (Colo. 1989) (facility caring for disabled children is considered residential property).[5]
The Broomfield Senior Living Owner holding, coupled with past Colorado court holdings and statutory provisions, support an interpretation of an assisted living facility as a residential property. Accordingly, the Order applies to assisted living facilities in Colorado. Other states likely have similar legal precedent.
The next question is whether a resident at an assisted living facility is a “covered person” under the Order. The Order first defines a “covered person” as “any tenant, lessee, or resident of a residential property.” Clearly, a resident of an ALF falls within this part. The Order goes on to require, however, that the covered person provide a declaration covering five very specific points to justify their non-payment:
(1) The individual has used best efforts to obtain all available government assistance for rent or housing;
(2) The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return),6 (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
(3) the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
(4) the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and
(5) eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.[6]
All five points must be met to come under the protection of the Order. Point No. 3 regarding a loss of household income is broad enough to apply to family members who may have been making monthly payments on behalf of the resident. For example, if a son is funding mother’s residence in the assisted living home and the son loses a substantial portion of his income so he can no longer pay the full amount, then this criteria likely is satisfied.
The particular consequences facing a non-paying resident if they are involuntarily discharged will be an issue in determining if criteria No. 5 is met. If the resident will be homeless once removed from the ALF, then the criteria is clearly satisfied. But what if that resident can move in with family? It is up to the resident to show that moving in with family would not be an available housing option.
In short, the CDC Order applies because an assisted living facility is a residential property and its residents reside in that residential property. Therefore, ALF residents cannot be involuntarily discharged for non-payment while the CDC Order is in effect if the resident provides the required declaration to the assisted living facility.
Qualifiers
The Order only applies to evictions / involuntary discharges on the basis of non-payment. The Order does not prevent evictions for any covered person who is:
(1) engaging in criminal activity while on the premises;
(2) threatening the health or safety of other residents;
(3) damaging or posing an immediate and significant risk of damage to property;
(4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or
(5) violating any other contractual obligation of a tenant’s lease, other than the timely payment of rent or similar housing-related payment (including nonpayment or late payment of any fees, penalties, or interest).[7]
However, “individuals who are confirmed to have, have been exposed to, or might have COVID-19 and take reasonable precautions to not spread the disease should not be evicted on the ground that they may pose a health or safety threat to other residents.”[8] Given the complexities of COVID-19 in long-term care facilities, we recommend working closely with your Ombudsman and your attorney if you are considering discharging a resident who falls within this COVID-19 exception.
The Order went into effect September 4th. This means that any eviction proceedings prior to September 4th remain, and any ongoing eviction proceedings may continue, though the defendant may not actually be evicted if the defendant meets the qualifiers set forth in the declaration. Furthermore, the individual is still responsible for rent, and must make “best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses.”[9]
Effect on Colorado
The second qualifier of the Order is that it only applies in places that provide fewer protections than are provided in the Order. It does not apply in areas that already have a “moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in this Order.”
Colorado’s original order preventing residential evictions expired in June. However, Governor Polis entered a new order on October 21st that substantially mirrors the CDC Order. The primary difference is that the new Colorado order is effective for only 30 days, whereas the CDC Order is not time-limited. Colorado assisted living providers, therefore, will be governed by the October 21st Colorado order while it is in place, and to the extent that it is more protective than the CDC Order. After expiration of this order, assisted living providers will again be governed by the federal order.
In other areas that do not have state or municipal moratoria on evictions, the CDC Order is currently the applicable rule for determining whether an ALF resident may be evicted.
Though the Order has not stopped evictions in Colorado, evictions have slowed.[10] For example, eviction filings dropped by nearly half immediately following the Order’s enactment.[11] One reason why evictions have not stopped is because whether or not an eviction is carried out largely depends on the judge, since the Order only prevents evictions for individuals who meet the Declaration requirements.[12] The Order does not include a judicial process for determining whether or not an eviction defendant meets the qualifications set forth in the Declaration. Accordingly, how a judge reaches this conclusion varies--some judges may require evidence proving the defendant’s alleged circumstances, others may take the defendant at their word.[13]
Another reason why evictions have only slowed is that eviction orders granted before the Order’s enactment (Sept. 4th) may still be carried out. However, the Order does apply to eviction proceedings initiated before Sept. 4th--the proceedings may continue but the defendant has the benefit of the Order. For those in Colorado under the new Polis order, assisted living providers cannot initiate eviction proceedings in cases of financial hardship, and may not carry out previously ordered evictions if the resident demonstrates financial hardship.
Given the complex interplay between the federal and state orders, we suggest you contact your attorney before initiating an involuntary discharge process against a resident on the basis of non-payment.
[1] Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55, 292 (Sept. 09, 2020) [hereinafter CDC Order].
[2] Id. at 55293.
[3] 6 Colo. Code Regs. § 1011-1:7-2.
[4] Broomfield Senior Living Owner, 413 P.3d 219, 225 (Colo. App. 2017).
[5] Id.
[6] The Order, supra note 1, at 55,293.
[7] Id. at 55,294.
[8] Id.
[9] Id. at 55,293.
[10] Andrew Kenney & Taylor Allen, How the CDC Evictions Ban has Slowed (But not Stopped) Evictions in Colorado, CPR News (Sept. 30, 2020), https://www.cpr.org/2020/09/30/how-cdc-evictions-ban-slowed-but-not-stopped-evictions-colorado-coronavirus/#:~:text=Renters%20in%20Colorado%20were%20protected,federal%20protections%20disappeared%20soon%20afterward.
[11] Id.
[12] Jacy Marmaduke, The New Eviction Moratorium Isn't Bulletproof: What Fort Collins Renters Should Know, Coloradoan (Sept. 7, 2020, 2:38 PM), https://www.coloradoan.com/story/news/2020/09/07/what-colorado-renters-should-know-cdc-eviction-moratorium/5684996002/.
[13] Id.