Volume 42, Issue 2 (2024)

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.

 

 

 

Adopters’ Remorse: The Unregulated Use of Social Media to Rehome Children

By: Zena Hamilton, Volume 43 Staff Member

View/Download PDF Version: Adopters’ Remorse – The Unregulated Use of Social Media to Rehome Children (Hamilton)

Facebook can be used to buy a used laptop or lamp on the marketplace; surprisingly, it can also be used to rehome a child. Facebook groups dedicated to rehoming unwanted adopted children have parents wishing to connect those with the children to those who may be willing to provide them with what is hopefully a loving home. This process can occur with little federal or state oversight. Currently, only 17 states forbid an unregulated custody transfer. Unfortunately, the result can be disastrous for children whom their new guardians abuse while no one even knows they are there. To ensure the safety of children, federal regulations must be enacted first to curb the use of social media and second to ensure there are some safety measures for the transfer of children.

Legal adoption must be handled through a court order, but there is little federal oversight when a “power of attorney” document is signed with a notarized statement.  With a Power of Attorney signed a custody transfer can occur without the involvement of the courts or child welfare agencies. Rehoming is, at times, an unfortunate necessity, especially when a child staying with their family means that they will experience neglect that will harm their development. Power of Attorney documents can also be used to enable parents experiencing difficulties to allow their children to stay with someone trusted. Statutes similar to the one in North Carolina allow for this practice to occur with just a signature on a document and notary.  As a result, predators can use groups and forums online to exploit vulnerable victims, as seen in United States v. Eason. Many children who are rehomed through social media sites were born overseas and brought to the United States by their original adoptive parents. This flexibility, while at times beneficial, should be weighed against the possibility of abuse, neglect, and other issues occurring.

While regulation exists for custody transfers between states facilitated by social service agencies, it is unclear if the Interstate Compact on the Placement of Children applies to private parties. Custody transfers between private parties with a notarized statement mean that the federal government is unaware of how prevalent or common these custody transfers are. States may choose to enact laws to deter the use of unregulated custody transfers or to improve the availability of services pre and post-adoption. State statutes that do address or regulate informal custody transfers often do so after a high-profile case has brought the issue to the public’s attention. For instance, in Arkansas, a state representative rehomed his adopted daughters, who ended up being sexually abused. After facing criticism, the Arkansas state legislature enacted a law barring unregulated custody transfers; violation of the law is a felony and will result in prison time and fines. While laws exist in several states that forbid the use of advertising for the placement of adoption, legislation is piecemeal and done at the state level. Additionally, a state’s definition of what is considered advertising, like if social media is included, and who is forbidden, like everyone or just agencies can vary. Furthermore, penalties for violations may be only a misdemeanor if prosecuted at all. Despite reports issued by the Government Accountability Office in 2015 concerning the unregulated custody transfers of children, no federal law directly addresses the situation.

Courts are divided on the applicability of the Interstate Compact on the Placement of Children when transfers occur between private parties instead of with an agency. The Supreme Court of Wyoming has held that in their view, “the compact is applicable only to those engaged in the governmental or private service of placing children for care.” Contrastingly, the Missouri Supreme Court reached a different conclusion, stating that “The obvious purpose of the legislature in enacting § 453.110.1 was to prohibit the indiscriminate transfer of children, the concept that a parent could pass them on like chattel to a new owner.” Depending on the jurisdiction, the application of the Interstate Compact on the Placement of Children can vary widely.

While research on why a rehoming occurs is sparse, some data suggests that parents are not adequately equipped to handle the challenges, both emotional and physical, of the children that they adopt. Reactive attachment disorder, RAD, is often cited as a reason the adoptive parents are no longer able to care for their child, resentment often builds and parents will place blame on the children as their familial relationships are altered. Blog posts and articles are littered with statements like “so many marriages and homes are ravaged by the challenge of adopting difficult children.” While there may be challenges as children adjust to their new families adoptive parents need to be provided with more resources to reduce the instances of rehoming. Both the challenges of adoptive parents and the safety of children must be addressed, federal legislation needs to be enacted that requires more education before adoption and rehoming, required reporting of rehoming children with local child welfare agencies, monitoring prospective guardians or parents and banning the use of websites including social media groups to advertise children available for rehoming by private individuals.

Minimum Wage and the Tipping Culture Divide

Annali Cler*

On November 3rd, voters flocked to the polls, and election results gripped the nation for the following week. Although the presidential race captured headlines, another important vote occurred that day. In Florida, voters approved an amendment to the state’s minimum wage. Florida’s minimum wage for non-tipped employees will increase to $15 by 2026, while non-tipped employees will earn $11.98. Not only will this amendment make Florida one of the few states with a $15 minimum wage, but it also boosts Florida’s tipped employees well above the federal minimum cash wage and that of many states. Tipped employees have a unique pay structure, where employers only have to pay $2.13 per hour directly to the employee if that number combined with tips received adds up to the federal minimum hourly wage (or the state required wage). The obvious difference in pay raises questions about the existence of tipping culture and the need for a separate category of employees. 

The little-known history of tipping in the U.S gets its roots from racist practices following the Civil War. In the 1850s, wealthy Americans brought the practice back from Europe. Initially, many Americans opposed tipping, seeing it as an extra expense on top of the cost of food. Attitudes began to shift in the 1860s. After the Civil War, people who were freed from slavery had limited employment options and often turned to sharecropping or service positions, such as servants or porters. Tipping functioned as a way for employers to avoid paying their workers and as a sign of servitude. In 1902, a journalist wrote “[Black workers] take tips, of course; one expects that of them–it is a token of their inferiority.” Low or no wage work therefore continued to exist long after the abolition of slavery.

The development of labor law continued to make distinctions among workers. The Fair Labor Standards Act (FLSA) of 1938 exempted certain occupations from minimum wages. Employers in the agricultural and domestic sectors, jobs largely held by people of color, were not required to pay the federal minimum wage. These exemptions still exist. 

Saru Jayaraman, co-founder and president of Restaurant Opportunities Centers United (ROC United), says “[i]t’s the legacy of slavery that turned the tip in the United States from a bonus or extra on top of a wage . . . to a wage itself.” Tipping as a wage structure perpetuates low valuations on certain kinds of work, particularly service jobs. 

Further, tipped work worsens inequality in several dimensions. Research suggests that white workers receive bigger tips than black workers. Additionally, two-thirds of tipped workers in states that do not mandate full state minimum wage, which encompasses 43 states, are women. Although some argue tipping is a means to incentivize employees to work harder, the high rate of poverty for workers in restaurant industry compared to the general population suggests that tips alone do not provide a living wage, regardless of one’s work ethic.

Florida’s amendment signals acknowledgement by the public that the current federal minimum wages for non-tipped and tipped employees have failed to keep up with the cost of living. An increase in minimum wages across the board would benefit service workers, especially women and people of color, who are over-represented in that sector. Recognizing the inequitable rationales behind the distinction between non-tipped and tipped employees, Florida is moving in the right direction by bringing tipped employees above the federal minimum wage for employees generally.

*J.D. Candidate (2021), University of Minnesota Law School

The Burying of Boumediene v. Bush

Kevin Thomson*

At the University of Minnesota Law School in 2018, Chief Justice John Roberts declared that the court “erred greatly” when it gave into political pressure and upheld the internment of Japanese Americans in the “shameful” decision Korematsu v. United States. The Court is at its best, said the Chief Justice, when it stands athwart political pressure. 

One case unmentioned but nevertheless a viable candidate for the Court at its best is Boumediene v. Bush. 553 U.S. 723 (2008).  In the fog of the War on Terror, the Court held the Suspension Clause applied to Guantanamo Bay and the weak procedures provided by Congress were an inadequate substitute to habeas corpus. The legal philosopher Ronald Dworkin, writing in the pages of the New York Review of Books, declared it “a great victory.” And it was. But now, the Supreme Court and D.C. Circuit have buried the effects of Boumediene, sending a once great victory into the graveyard of constitutional law. This short blog post will outline the key holdings of Boumediene, where they have been undermined and where they survive. 

In 2006, Congress had passed the Detainee Treatment Act (DTA) which provided minimal procedures to Guantanamo detainees in the form Combatant Status Review Tribunals (CSRT), and the Military Commission Act (MCA) which stripped federal courts of habeas jurisdiction. Limited judicial review was granted to the D.C. Circuit, which could review whether the CSRTs complied with procedures promulgated by the Secretary of Defense. The plaintiffs in Boumediene challenged these laws under the Suspension Clause in Article I, Section 2 of the Constitution, which reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

The Boumediene Court addressed the case in two steps. Step 1 asked the threshold question of whether the Suspension Clause extended to Guantanamo Bay. Step 2 asked whether the CSRTs and limited D.C. Circuit review constituted an “adequate substitute” to habeas corpus. The Court answered “Yes” on Step 1 and “No” on Step 2. In doing so, Boumediene left two legacies: a functional approach to extraterritoriality and a robust interpretation of the Suspension Clause. 

The Court, in extending the Suspension Clause to Guantanamo Bay, rejected a formalist interpretation of the Clause’s reach. Justice Kennedy, writing for the majority, applied a functional test, asking, in part, whether the extension of the Suspension Clause would be impracticable and anomalous.” Prior cases had sharply limited the application of the Constitution to the de jure territoriality sovereignty of the United States or to plaintiffs with significant voluntary connections to it. It was under the guidance of these cases that the Bush Administration chose Guantanamo Bay, where the government could be unburdened by constitutional concerns. After all, Guantanamo detainees had no voluntary connections to the United States, and Guantanamo Bay, located in Cuba, was outside the de jure sovereignty of the United States. 

The Boumediene court rejected this manipulation and held the U.S. exercised de facto control over Guantanamo Bay and applying the Suspension Clause to it would not present any practical concerns. The hope was that the “impracticable and anomalous” test would spread beyond the Suspension Clause, and the government could not shed its constitutional duties by traveling abroad. 

This hope was quickly dampened. There are a number of cases to note, but two are warrant special consideration. In Alliance for Open Society, a case seeking to extend the First Amendment abroad, the Court declared: “[I]t is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U.S. Constitution.” 140 S. Ct. 2082, 2086 (2020). This proposition, while not formally overruling Boumediene, revived a formalist, line-drawing approach to extraterritoriality. 

It was in the spirit of Alliance, and not Boumediene, that this past August the D.C. Circuit shut the door on the application of procedural or substantive due process rights for Guantanamo detainees in Al Hela v. Trump. 972 F.3d 120 (2020).  There, the D.C. Circuit, citing Alliance, went out of their way to hold that the Fifth Amendment does not apply at Guantanamo Bay. Without the co-extension of the Due Process Clause, the lasting effect of Boumediene’s strong interpretation of the Suspension Clause is considerably weakened. 

The functional “impracticable and anomalous” test still applies when analyzing the reach of the Suspension Clause. And areas where the U.S. exercises de facto sovereignty – like Guantanamo Bay – are “U.S. territory,” meaning the Alliance rule does not apply. But these are small echoes for such a great case. 

The second key holding of Boumediene was its robust interpretation of the Suspension Clause. Decided in 2020, Department of Homeland Security v. Thuraissigiam is the first case interpreting the Suspension Clause after Boumediene. 140 S. Ct. 1959 (2020). In Thuraissigiam, the Court held that expediated removal procedures limiting judicial review for migrants did not violate the Suspension Clause because the plaintiff – a man seeking asylum – did not seek release but additional procedure. 

There is much to be said about how Thuraissigiam affected Boumediene from its originalism to the misinterpretation of the writ in immigration cases. But one important implication of the case is its conception of the purpose of habeas corpus. 

The interpretation of the history of habeas corpus and the current case law is split between two conceptions of habeas: a rights-centric view and a power-skeptical view. The power-skeptical view focuses an analysis of the Suspension Clause on the jailer – not the jailed. It questions the power of judiciary to review the “legality of the exercise of executive power,” as Justice Sotomayor put it in her dissent. Under this interpretation, the expediated removal procedures are unconstitutional for barring judicial inquiry into the legality of expeditated deportation orders. 

On the other hand, a rights-centric view focuses on the jailed, not the jailer. It looks to the plaintiff’s (lack of) constitutional rights, not the legality of the Executive’s actions. But standing alone, those subject to Executive detention, whether the alleged enemy combatants in Boumediene or recently arrived migrants in Thuraissigiam, are likely to have little claim to constitutional right. A rights-centric Suspension Clause is a weak Suspension Clause.

Boumediene embraced the power-skeptical view. The majority proclaimed: “The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches.” But the Court in Thuraissigiam undermined this power-skeptical view by concentrating solely on the plaintiff’s lack of right instead of the illegality of the Executive’s action. 

Some hope remains for Boumediene. The Boumediene court held “at an absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” The Court in Thuraissigiam, seizing on an apparent concession in a footnote in the plaintiff’s brief, analyzed the writ only as it existed in 1789. Future plaintiffs may be able to make claims based on post-1789 developments in the Suspension Clause jurisprudence. How the current court will handle those arguments – and whether Boumediene can be resurrected – remains to be seen. 

 

*J.D. Candidate, 2021.