[WSBAPT] Assisted Living - Private Pay Agreement

Thu May 9 14:02:01 PDT 2019

Hello Neli,

Here's the applicable statute.  It does not say the resident must die in the facility.  That's one interpretation, but another is outside the facility.  What if, for example, the resident had gone home for the weekend to visit family and died?

The prior two sentences in this statute may also give you a hook.  They require full disclosure of the conditions and acknowledgment in writing.  Look at the admission contract for that.  The contract must be consistent with the law, per subsection (2).

There is not a direct private right of action for violation of RCW 70.129, the residents rights statute.  RCW 70.129.170.  But I think your client's instinct that it's unconscionable is on the right track.  Depending on the facts and the contract wording, it may rise to a Consumer Protection Act violation as a deceptive or unfair business practice.

I also would question the appropriateness of the admission decision.  Assisted living facilities aren't supposed to admit people who are very sick.  What was his condition at admission?  What did the ALF say it could do?  If he suddenly got sick at the ALF, was there neglect?

RCW 70.129.150<http://app.leg.wa.gov/RCW/default.aspx?cite=70.129.150>
Disclosure of fees and notice requirements-Deposits.
(1) Prior to admission, all long-term care facilities or nursing facilities licensed under chapter 18.51<http://app.leg.wa.gov/RCW/default.aspx?cite=18.51> RCW that require payment of an admissions fee, deposit, or a minimum stay fee, by or on behalf of a person seeking admission to the long-term care facility or nursing facility, shall provide the resident, or his or her representative, full disclosure in writing in a language the resident or his or her representative understands, a statement of the amount of any admissions fees, deposits, prepaid charges, or minimum stay fees. The facility shall also disclose to the person, or his or her representative, the facility's advance notice or transfer requirements, prior to admission. In addition, the long-term care facility or nursing facility shall also fully disclose in writing prior to admission what portion of the deposits, admissions fees, prepaid charges, or minimum stay fees will be refunded to the resident or his or her representative if the resident leaves the long-term care facility or nursing facility. Receipt of the disclosures required under this subsection must be acknowledged in writing. If the facility does not provide these disclosures, the deposits, admissions fees, prepaid charges, or minimum stay fees may not be kept by the facility. If a resident dies or is hospitalized or is transferred to another facility for more appropriate care and does not return to the original facility, the facility shall refund any deposit or charges already paid less the facility's per diem rate for the days the resident actually resided or reserved or retained a bed in the facility notwithstanding any minimum stay policy or discharge notice requirements, except that the facility may retain an additional amount to cover its reasonable, actual expenses incurred as a result of a private-pay resident's move, not to exceed five days' per diem charges, unless the resident has given advance notice in compliance with the admission agreement. All long-term care facilities or nursing facilities covered under this section are required to refund any and all refunds due the resident or his or her representative within thirty days from the resident's date of discharge from the facility. Nothing in this section applies to provisions in contracts negotiated between a nursing facility or long-term care facility and a certified health plan, health or disability insurer, health maintenance organization, managed care organization, or similar entities.
(2) Where a long-term care facility or nursing facility requires the execution of an admission contract by or on behalf of an individual seeking admission to the facility, the terms of the contract shall be consistent with the requirements of this section, and the terms of an admission contract by a long-term care facility shall be consistent with the requirements of this chapter.
[ 1997 c 392 § 206;<http://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/House/1850-S2.SL.pdf?cite=1997%20c%20392%20§%20206;> 1994 c 214 § 16.<http://lawfilesext.leg.wa.gov/biennium/1993-94/Pdf/Bills/Session%20Laws/House/2154-S2.SL.pdf?cite=1994%20c%20214%20§%2016.>]

Hope that helps.

FYI, I drafted the above statute for the LTC Ombudsman years ago.  Sorry it's so convoluted!

Jeff

Jeff B. Crollard

Crollard Law Office, PLLC
Northgate Executive Center II
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Seattle, WA 98115-2061
Phone:  206-623-3333
Fax:  206-623-3838
jbc at crollardlaw.com<mailto:jbc at crollardlaw.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Neli Espe, J.D. - Olympic Legal
Sent: Thursday, May 9, 2019 12:12 PM
To: wsbapt at lists.wsbarppt.com; author.nameemail <solo-and-small-practice-section at list.wsba.org>
Subject: [WSBAPT] Assisted Living - Private Pay Agreement

Listmates,

PNC placed spouse in assisted living and signed a contract which states that 30-day notice is required for person to move out. Client was required and paid for the full month a substantial amount of money. Spouse was very sick and after only a couple of days requested to go home to essentially pass away in peace. Spouse in fact away in a day or so.

The facility refuses to consider issuing a refund as its agreement states that the 30-day notice requirement is subject to two exceptions only:
either person passes away in the facility or
has to move to the hospital.

PNC is quite upset and feels this is potentially unconscionable.

Would anyone practicing in this area be available to help? Are such clauses common practice in the assisted living industry?

Thanks,

Neli Espe
________________________________

Neli Espe, J.D.  |  Olympic Legal
             T: 360.630.3635
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