Volume 40, Issue 2 (2022)

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.

 

 

 

First Down, First Amendment: A Case Comment on Kennedy v. Bremerton School District

By Karissa Grapes*

Background

On June 27, 2022, the Supreme Court ruled that a public school football coach possesses a right to pray with his players after games.[1] This decision significantly complicates what religious activities are allowed in schools and when schools can regulate employee expression. The decision erodes the separation of church and state in public schools.

Factual and Procedural History

In this case, Petitioner Joseph Kennedy lost his job as a high school football coach.[2] The termination followed after he knelt at midfield after football games to offer a personal prayer.[3] Initially, he prayed on his own.[4] Over a period of time, some players asked to join him.[5] Petitioner responded with, “This is a free country. You can do what you want.”[6] This practice eventually grew to most of the team, and even members from opposing teams joined.[7] The district sent directives to stop engaging in religious expression, which petitioner ignored.[8]

Petitioner sued in federal court alleging the school district’s action violated his free-speech and free-exercise rights.[9] The district court concluded “that a reasonable observer… would have seen him as… leading an orchestrated session of faith.”[10] Petitioner appealed, and the Ninth Circuit affirmed.[11] Petitioner sought certiorari, which was denied but accompanied by a statement stressing that a denial does not necessarily mean the Supreme Court agrees with the decision below.[12] The case returned to the district court; the court rejected Petitioner’s free speech claim, and it found the school district had a compelling interest in prohibiting his post-game prayers, thus rejecting his free exercise claim.[13] The Ninth Circuit affirmed.[14] The Supreme Court granted certiorari.[15]

Holding

The Court examined the following question: “Is a public-school employee’s prayer during school sports activities protected speech, and if so, can the public school employer prohibit it to avoid violating the Establishment Clause?”[16] The Court held that the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.[17]

Disregard for Judicial Precedent

The Supreme Court erred in its decision. First, the majority did not decide the case on the three-part Lemon test as it has historically done since 1971.[18] In Lemon v. Kurtzman, two states had passed laws which allowed tax-funded reimbursements to church-affiliated schools.[19] In hearing the case, the Supreme Court decided that the aid to these schools violated the first amendment. The Court considered three factors: (1) the secular purpose doctrine,[20] (2) the principal or primary effects doctrine,[21] and (3) the excessive entanglement test.[22] These factors became known as the Lemon test, which, as the factors indicate, examines the law’s purposes and its entanglement with religion.[23] The inquiry under Lemon was whether a reasonable observer would see the challenged governmental action as an endorsement of the religion.[24] In Kennedy, Justice Gorsuch opined that the courts should determine whether a law or practice violates the Establishment Clause by looking at the “historical practices and understandings” of the drafters of the Constitution.[25] This new test has little practical guidance to schools until lower courts apply the holding.

As the dissent explains, Justice Gorsuch misconstrued the facts.[26] The question before the court was “whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event.”[27] The answer is clearly no. Teachers and coaches possessing broad free exercise and free speech rights cannot be reconciled with the Establishment Clause requirements of the school.[28]

Further, the government must remain neutral about religion due to how susceptible to influence children are. Looking at these facts in particular, students are susceptible to feel compelled to join in the post-game prayer.[29] Students may feel obligated to join their coach—a person in power—in addition to teammates. There is a pressure to pray. As one parent put it, “The coach is a leader. The coach is a mentor. If he goes to the 50-yard line, he has a message he wants to deliver, and so the players would follow.”[30] While we cannot enter Coach Kennedy’s mind, the prayer may result in favoritism amongst those who are religious and engaging in the prayer compared to their non-religious and non-praying teammates. Coach Kennedy’s actions harm students with practicing minority faiths or those who have no faith. The First Amendment specifically protects individuals from the pressure of engaging in a practice they do not agree with.

Conclusion

For the time being, it is unclear what religious activities schools can regulate. The holding suggests that teachers and other school employees have broader freedoms in expressing their personal views at work. Schools will have to tread lightly and consider specific factors when deciding whether or not to restrict—such as behavior that occurs outside the classroom, outside working hours, and/or “non-student-facing settings.”[31]

[1] Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022).

[2] Id. at 2415.

[3] Id. at 2416.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 2416–19.

[9] Id. at 2419.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 2420.

[14] Id.

[15] Id. at 2421.

[16] Kennedy v. Bremerton School District, Oyez, https://www.oyez.org/cases/2021/21-418 (last visited Oct 16, 2022).

[17] Kennedy, 142 S. Ct. at 2421–33.

[18] Lemon v. Kurtzman, 91 S. Ct. 2105 (1971).

[19] Geoffrey McGovern, Lemon v. Kurtzman I (1971), First Amendment Encyclopedia, https://www.mtsu.edu/first-amendment/article/437/lemon-v-kurtzman-i#:~:text=Kurtzman%2C%20403%20U.S.%20602%20(1971,church%2Drelated%20educational%20institutions.%E2%80%9D (last visited Nov. 17, 2022).

[20] Sch. Dist. Abington Twp. v. Schempp, 83 S. Ct. 1560 (1963).

[21] Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 88 S. Ct. 1923 (1968).

[22] Walz v. Tax Comm’n of New York, 90 S. Ct. 1409 (1970).

[23] Id. at 2112.

[24] Cnty. of Allegheny v. ACLU, 109 S. Ct. 3086, 3121 (1989).

[25] Kennedy, 142 S. Ct. at 2428.

[26] Kennedy, 142 S. Ct.. at 2434 (Sotomayor, J., dissenting).

[27] Id. at 2441.

[28] Ira Lupu & Robert Tuttle, Kennedy v. Bremerton School District – A Sledgehammer to the Bedrock of Nonestablishment, American Constitution Society (June 28, 2022), https://www.acslaw.org/expertforum/kennedy-v-bremerton-school-district-a-sledgehammer-to-the-bedrock-of-nonestablishment/.

[29] Amy Howe, Justices Side with High School Football Coach Who Prayed on the Field with Students, SCOTUSblog (June 27, 2022, 11:24 AM), https://www.scotusblog.com/2022/06/justices-side-with-high-school-football-coach-who-prayed-on-the-field-with-students/.

[30] Devin Dwyer, Supreme Court Rules First Amendment Protects Public School Coach’s Post-Game Prayers, ABC 7 News (June 27, 2022), https://abc7news.com/high-school-football-coach-prayer-supreme-court-decision-joe-kennedy-first-amendment/11998307/#:~:text=The%20First%20Amendment%20protects%20free,if%20the%20prayer%20is%20voluntary.

[31] Kirsten White, Clear as Mud: Navigating In-Schhol Employee Expression in the Wake of Kennedy v. Bremerton School District, Fox Rothschild LLP (July 15, 2022), https://www.foxrothschild.com/publications/clear-as-mud-navigating-in-school-employee-expression-in-the-wake-of-kennedy-v-bremerton-school-district.

* Karissa Grapes, Note & Comment Editor and J.D. Candidate, UMN Law School Class of 2023