Volume 41, Issue 2 (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.




Right to Spiritual Advisors During Executions: Missouri’s Latest Refusal and the Supreme Court’s Evolving Jurisprudence

By: Britane Hubbard

            On Tuesday, February 7th, 2023, Missouri executed Leonard “Raheem” Taylor, despite serious questions raised regarding his innocence[1] and without his spiritual advisor  The Missouri Department of Corrections (MDOC) denied Taylor’s request, made the day before his execution, to have his spiritual advisor present in the execution chamber to pray with him.[3] On that same day, MDOC shared that its alleged reasons for the spiritual advisor denial was because (1) Taylor previously waived his right to have witnesses present; thus he was too late in asking and (2) MDOC was “unable to reasonably accommodate this request due to institutional security concerns related to changing the protocol at this late hour.” [4]

            Understandably, requiring Taylor to be strapped down and executed alone, without the presence of his requested spiritual advisor, outraged many such as the Missouri NAACP and Taylor’s spiritual advisor Anthony Shahid.[5] Mr. Shahid, who Taylor’s attorney said was already approved to visit Taylor at another facility, questioned whether his exclusion from the execution was related to Taylor being a Black man and a Muslim, and a violation of Taylor’s “civil and religious rights.” [6]

            Did the exclusion of Taylor’s spiritual advisor break the law? The answer lies within both the Prison Litigation Reform Act (PLRA)[7] and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).[8]

Under RLUIPA, the Supreme Court has held that States must allow spiritual advisors to be present in the execution  But, first, a prisoner seeking relief under RLUIPA must have satisfied the requirements of the Prison Litigation Reform Act (PLRA).[10] “PLRA requires incarcerated individuals to exhaust the prison’s administrative grievance process before turning to the courts. . .” Thus, whether the exclusion of Taylor’s spiritual advisor broke the law depends first on his exhaustion of MDOC’S grievance procedures. MDOC “utilizes a three-step procedure for its administrative remedy system for prisoners: an Information Resolution Request (“IRR”), a Grievance, and a Grievance Appeal.”[11] Requirements for all three steps must be followed by the prisoner to be “considered under [PLRA].”[12]

However, complicating the grievance procedure process is the unique circumstances that a scheduled execution date imposes on time constraints.[13] Missouri Revised Statute §546.740 and MDOC’s Department Procedure Manual provides that an offender may have at their execution “clergy or religious members” as witnesses. MDOC’s Manual further specifies that the “offender shall request his/her execution witnesses at least two weeks prior to the scheduled execution date.” [14] What is unclear in Mr. Taylor’s case is whether he had an opportunity to trigger MDOC’s grievance procedure after he was informed his spiritual advisor would be excluded from the execution chamber the day before his execution, or whether a prisoner’s right to file a grievance in the execution context is extinguished at the arbitrarily set date to request in the prison’s policy.

The  Supreme Court’s jurisprudence around spiritual advisors is still evolving.[15] In its most recent case Justice Sotomayor wrote a concurrence to clarify PLRA’s role in cases like Taylor’s. Notably, she emphasized that although “incarcerated individuals still bear the burden of timely raising execution-related claims, prisons still must ensure that administrative remedies are available, which may require modifying procedures to account for the time constraints of a scheduled execution.”[16]  Justice Sotamoyor further clarified that “[w]here an administrative process does not facilitate addressing execution-related claims within the timeframe of a scheduled execution, it is likely not an “available” remedy that must be exhausted under the PLRA.”[17] This raises a question as to whether Missouri’s two-week requirement to make the request would even be enough time to exhaust MDOC’s grievance procedures and then properly

What constitutes “timely” has differed in other Supreme Court cases involving spiritual advisors. In Dunn v. Ray the court “permitted Alabama to execute a Muslim man. . .after the state refused to allow [him] to have an Imam at his side in the execution chamber,  the state at that time allowed a Christian chaplain in the chamber.” [18] The Court stated this decision was made “[b]ecause Ray waited until [10 days before execution] to seek relief.” [19] Later, in Ramirez v. Collier the court found the petitioner’s grievance filed three days after learning of the prohibition of his spiritual advisor’s touch was timely filed.[20] Though, the petitioner’s grievance in Collier was still filed months before his scheduled execution date.[21]

Consequently, Taylor’s request, made only a day before the execution, may have been deemed untimely. Sotomayor addressed this timeliness concern in her concurrence with Collier, stating that “incarcerated individuals should know that delays in raising their requests can result in denial.”[22] But given the unique circumstances surrounding executions, consideration should be given to whether the deadlines being imposed by prisons on inmates to have a spiritual advisor present at their executions are themselves a substantial burden on their religious exercise in violation of RLUIPA. In Taylor’s case, the warden refused to allow his Iman to be present at the execution, yet allowed a special visit earlier in the day–raising questions about MDOC’s policy arbitrarily burdening religious exercise.[23] Given that the Court’s jurisprudence in this area is evolving and that it has taken up a spiritual advisor case each session for the last four years[24], it is possible that a case similar to Taylor’s could clarify the timeliness requirements and their effect on an incarcerated person’s “interest in religious exercise”

[1] Innocence Project Statement on the Execution of Leonard ‘Raheem’ Taylor, Innocence Project (Feb. 7, 2023), https://innocenceproject.org/innocence-project-statement-on-the-execution-of-leonard-raheem-taylor/.

[2] Kim Bell, Lawyers for Leonard Taylor Say Missouri Executed Him Before His Appeals Ran Out (Feb. 9, 2023), https://www.stltoday.com/news/local/crime-and-courts/lawyers-for-leonard-taylor-say-missouri-executed-him-before-his-appeals-ran-out/article_0903e0aa-9873-5c09-b3c7-3289e039fa4b.html.

[3] Id.

[4] Katie Moore & Luke Nozicka, Leonard Taylor Not Allowed Spiritual Advisor at Execution. Warden Says He Asked Too Late (Feb. 7, 2023), https://www.aol.com/news/leonard-taylor-not-allowed-spiritual-173055064.html.

[5] Id.

[6] Id.

[7] Prison Litigation Reform Act of 1995 (PLRA), 42 U. S. C. §1997e(a).

[8] 42 U.S.C. §2000cc-1(a).

[9] See Gutierrez v. Saenz, 141 S. Ct. 127, 128 (2020) (granting a stay of execution and thereafter requiring the district court to determine “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prison wishes to have in his immediate presence.”), Dunn v. Smith, 141 S. Ct. 725 (2021) (Kagan, J., concurring) (denying application to vacate injunction barring Alabama from executing an inmate without his “pastor by his side”), and  Ramirez v. Collier, 142 S. Ct. 1264, 1284 (2022) (finding that under RLIUPA a spiritual advisor may be allowed into the execution chamber and engage in audible prayer and religious touch).

[10] PLRA, supra note 7.

[11] Hinson v. Missouri E. Corr. Ctr., No. 4:22-CV-785 NAB, 2022 WL 4378833 at 11 (E.D. Mo. Sept. 22, 2022).

[12] Id.; see also Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“Exhaustion of available administrative remedies is required for any suit challenging prison conditions, not just for suits under § 1983.”).

[13]  Collier, 142 S. Ct. at 1284 (Sotomayor, J., concurring).

[14] Missouri Department of Corrections Changes Policy for Witnessing Executions, ACLU (Nov. 27, 2018), https://www.aclu-mo.org/en/news/missouri-department-corrections-changes-policy-witnessing-executions


[15] See Dunn v. Ray, 139 S. Ct. 661 (2019), Gutierrez v. Saenz, 141 S. Ct. 127 (2020), Dunn v. Smith, 141 S. Ct. 725 (2021),  Ramirez v. Collier, 142 S. Ct. 1264 (2022).

[16] Collier, 142 S. Ct. at 1284 (Sotomayor, J., concurring).

[17] Id. at 1285.

[18] Dunn v. Ray, 139 S. Ct. 661 (2019). Amy Howe, Court to Clarify the Right of Death-Row Inmates to Receive Spritiual Guidance During Execution, SCOTUSblog (Nov. 8, 2021, 12:59 PM), https://www.scotusblog.com/2021/11/court-to-clarify-the-right-of-death-row-inmates-to-receive-spiritual-guidance-during-execution/ (citing Dunn, 139 S. Ct. 661 (2019)).

[19] Dunn, 139 S. Ct. 661 (2019) (a 5-4 decision  highlighting the disagreement of the Court around spiritual advisors).

[20]  Collier, 142 S. Ct. at 1276–77.

[21] Id.

[22] Id. at 1285 (Sotomayor, J., concurring).

[23] See Katie Moore & Luke Nozicka, supra note 4.

[24] See cases cited supra note 15.

[25] Collier, 142 S. Ct. at 1283.