Volume 41, Issue 1 (2023)

Elder Evictions: Relief Coming 2021

Image Attribution: Glen Stubbe, Star Tribune 


By Abigail Hanson, Lead Managing Editor


Effective August 2021, Minnesota will have a long overdue safeguard for our state’s seniors: heightened protections from assisted living facilities (ALF) evictions. The Elder Care and Vulnerable Adult Protection Act, passed in 2019, provides for not only procedural eviction protections for ALF residents, but a myriad of other checks and balances that benefit consumers.

One critical aspect of the 2019 Act, is the establishment of a licensure system for ALFs, a basic regulatory standard of which Minnesota is the last in the country to adopt. Currently, Minnesota’s ALFs are registered with the Minnesota Department of Health as Housing with Services (HWS) establishments. Fittingly, ALFs provide both housing and services, the latter of which can include anything from meals and housekeeping, to medication support or assistance with activities such as dressing or bathing.

The popularity of ALFs has skyrocketed in the last two decades, with the number of these facilities roughly tripling since 2000. The prevalence of ALFs is further put into perspective when compared to the number of nursing homes in the state, which total just 361. In 2020, over 50,000 Minnesotans received assisted living services and/or dementia care at HWS facilities. As the popularity of ALFs has increased, these facilities have started to house adults with more serious medical conditions. Nationally, upwards of 50% of ALF residents need help with bathing, dressing, or walking, and 42% suffer from dementia.

Yet, the structure of Minnesota’s HWS laws, the framework under which ALFs have, and currently, exist, fail to recognize the increasing complexities and vulnerabilities within these resident populations. For example, residents’ housing is still governed by basic landlord-tenant law. As such, ALF residents, who may be suffering from dementia or require heightened medical care, are subject to the same notice and eviction proceedings as anyone renting out an apartment. Moreover, ALF residents are susceptible to back-door evictions, which occur when their services are reduced or cut off, forcing them to move out and find a new service provider. This backdoor eviction method has become especially concerning during the COVID-19 pandemic. Minnesota’s eviction moratorium, instituted through executive order, does not foreclose upon the stoppage or reduction of ALF services. Thus, for residents of ALFs—a group whose age alone puts them at increased risk for serious complications from COVID-19—evictions during the pandemic are a real possibility.


Elder Care & Vulnerable Adult Protection Act

Codified under chapter 144G, the 2019 Act, whose main provisions become effective August 2021, provides for the licensure and regulation of ALFs. Overarching changes include training and staffing requirements for ALFs, along with the establishment of minimum standards of care for residents. Many statutory provisions increase consumer protections, including the creation of an assisted living bill of rights and required contract disclosures related to a resident’s lease and services plan, now deemed their “assisted living contract.” Building upon these statutory safeguards is section 144G.52, which provides procedural protections for resident terminations (i.e. evictions).


Pre-Termination Procedural Protections

Section 144G.52 expands the definition of termination. This simple change is the foundation for resident eviction protections found within the Elder Care Act. When effective in 2021, the definition will afford procedural protections to both the termination of housing and services received by residents in ALFs.

Additionally, termination of either housing or services may only occur under the following circumstances: (1) nonpayment, (2) violation of an assisted living contract (of which a resident needs to be given a chance to cure), or (3) limited situations where a resident has interfered with the health and safety of fellow residents or staff. The narrow bases on which an ALF may terminate a resident’s housing or services reduce opportunities for arbitrary discharges, such as when a facility threatens eviction based upon resident’s reported concerns or complaints.

Significantly, an ALF must schedule a pre-termination meeting with the resident. The meeting’s purpose is to lay out the reasons for the proposed housing or service termination, but also to “identify and offer reasonable accommodations or modifications, interventions, or alternatives to avoid the termination or enable the resident to remain in the facility.” Not only does this offer an opportunity for residents to avoid termination, but this process actively involves additional resident advocates. Legal and designated representatives for the resident, are required by the statute to be invited to the pre-termination meeting. The additional support can help the resident to effectively advocate with ALF administrators.


Post-Termination Procedural Protections

If the pre-termination meeting does not result in a path for continued housing or services, the ALF may terminate the resident after providing notice. However, the notice must include information on the resident’s appeal rights, in addition to contact information for the Office of Ombudsman for Long-Term Care and Senior LinkAge Line, vital advocates for older adults in Minnesota. Under current HWS law, residents must go through the stress of eviction proceedings and have no recourse for service terminations; thus, the Elder Care Act’s inclusion of appeal opportunities bolsters residents’ chances for stability.

If a resident chooses not to appeal, or receives an adverse determination upon appeal, the obligations of the ALF do not end. An ALF must prepare a relocation plan and participate in a coordinated move, ensuring the resident has a safe location. Excluded from chapter 144G’s definition of safe locations are “private home[s] where the occupant is unwilling or unable to care for the resident,” homeless shelters, hotels, and motels. The statute goes further, explicitly stating that a “facility may not terminate a resident’s housing or services if the resident will, as the result of the termination, become homeless.”


The strengthened pre- and post-termination procedures of the Elder Law Act provide needed protections for Minnesota’s seniors, favoring stability and safety. Required pre-termination meetings with advocates and ALF administrators can prevent the emotional upheaval that forced transitions can cause, specifically for those experiencing dementia. Post-termination coordinated moves may help to curb the sobering increase in homelessness among Minnesota’s older adults. Consumer protections and regulations of ALFs are long overdue in Minnesota, and the changes effective 2021 will be a welcome relief to older adults across the state.




Will the Indian Child Welfare Act Survive? The Supreme Court Will Decide in Haaland v. Brackeen

By Layni Miramontes*

The Indian Child Welfare Act (ICWA) is a federally enacted statute that became law in 1978 as a response to the disproportionate number of Native children that were being systemically removed from their homes with little to no evidence justifying their removal. ICWA was the legislative response to the U.S. government’s brutal history of enforcing cultural assimilation onto Native groups by removing Native children from their families. Its purpose is to “to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families….” This purpose was achieved by giving tribal governments exclusive jurisdiction over Native children that live on tribal property and the right to intervene in child custody proceedings that involved Native children that do not live on tribal property. Specifically, the Act includes a “placement preference” in child custody determinations that prefers placing Native children with Native families, over non-Native families.

Haaland v. Brackeen is a pending Supreme Court case in which the Court will decide the constitutionality of ICWA. The plaintiffs in this case include the states of Texas, Indiana, and Louisiana, non-Natives who sought to adopt Native children, and one biological mother of a Native child. The individual plaintiffs listed are  white couples that  attempted to adopt, or did adopt, Native children. The Cliffords, a Minnesota family, fostered a Native child, Child P., and later sought to adopt her.[1] They were confronted with legal battles from the Child P’s biological grandmother, who eventually gained custody of the Native child. The Brackeens had previously adopted a Native child, A.L.M, in 2018, and are now seeking to adopt her biological brother.[2] The Librettis had also adopted a Native child, Baby O, in 2018, but in their case, the Native biological mother supported the adoption.[3] Despite Baby O’s mother’s support, the Ysleta del sur Pueblo Tribe (which the biological father belongs) attempted to intervene in the custody proceedings and remove the Baby O from the Lebrettis.[4] This attempt eventually failed and the Pueblo Tribe agreed to settle once the Lebrettis joined in the constitutional challenge of ICWA.[5]

Haaland v. Brackeen was initially filed by the above plaintiffs against the United States in the District Court for the Northern District of Texas, in late 2017. The case quickly caught the attention of country and various indigenous groups, and the Department of the Interior, the Department of Health and Human Service, the Bureau of Indian Affairs, along with several other federal officials and Tribes intervened and joined the fight in support of ICWA.

These plaintiffs made two main arguments challenging the constitutionality of ICWA. First, the plaintiffs argue that the statute violates the Equal Protection Clause of the Fourteenth Amendment, because the statute “imposes ‘race-based’ restrictions on foster care and adoption, which may not be in the child’s best interest.” The plaintiff’s second argument rests of the Anti-Commandeering Doctrine under the Tenth Amendment. The Anti-Commandeering Doctrine prohibits Congress from “commandeering” areas of law that are reserved to the state through the Tenth Amendment. In essence, the plaintiffs are arguing that Congress exceeded its authority in enacting ICWA and that states should not be charged with complying with a law that Congress never had the authority to enact.

The Texas District Court ruled in favor of the plaintiffs, holding that ICWA violated both the Fourteenth and Tenth Amendments. The United States Court of Appeals for the Fifth Circuit reversed the decision of the District Court, reestablishing the ICWA was constitutional. Eventually, the Fifth Circuit agreed to review the case en banc, which resulted in a non-unanimous 325-page opinion. The Fifth Circuit held that Congress had the authority to enact ICWA and that the Act’s reliance on the definition of an “Indian child” was not necessarily based on race. Following this decision, all parties, including the Department of Justice, Tribal Groups, the state of Texas, and the individual plaintiffs, asked to court to grant certiorari and review the Fifth Circuit’s decision.

After this extensive litigation, and the filings of amicus briefs by 479 Native Tribes, 62 American Indian Organizations, 87 members of Congress, 23 states and Washington D.C., all in support of the ICWA, Haaland v. Brackeen finally reached oral argument in front of the Supreme Court on November 9, 2022. As of now, the constitutionality of ICWA is solely in the province of the Supreme Court as we await their decision.

Legal scholars have expressed concern over the possibility of the Supreme Court finding ICWA to be unconstitutional, warning that it could have “catastrophic consequences” for the future of Tribal and United States relations. The American Bar Association noted that Haaland v. Brackeen “means nothing less to the tribes than the validation and continuation of their existence as sovereign nations.” Considering the United States government’s horrific treatment of Native people in the past, the Act serves important purposes in preserving tribal culture and heritage. The loss of the right of Tribal Governments to exercise exclusive jurisdiction over child welfare proceedings and to intervene in cases dealing with Native children living outside of the reservation could lead to the devastating destruction of Native communities. The only thing that is known for certain is that the future of ICWA is in the hands of nine unelected justices, who are comfortable overturning law that millions of people have come to rely on.

*Layni Miramontes is a Note & Comment editor on JLI Vol. 41.

[1] Brackeen v. Haaland, 994 F.3d 249, 62 (5th Cir. 2021).

[2]  Id. at 58–60.

[3] Id. at 60–61.

[4] Id.

[5] Id.