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Filing # 110310541 E-Filed 07/15/2020 07:02:39 PM
IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
ESTATE OF JULIUS J. GERVAN, by and
through JUDITH D. BRIGGS, as Personal
Representative,
Plaintiff, CASE NO.: 19-1327-CA
vs.
DEEP CREEK RNC, LLC and CLEAR
CHOICE HEALTH CARE, LLC,
Defendants.
/
DEFENDANTS’ REPLY TO PLAINTIFF’S BRIEF IN OPPOSITION TO
DEFENDANTS’ MOTION TO COMPEL ARBITRATION
COMES NOW Defendants, DEEP CREEK RNC, LLC and CLEAR CHOICE HEALTH
CARE, LLC, by and through the undersigned attorneys, and serve this reply to Plaintiff's Brief in
Opposition to Defendants’ Motion to Compel Arbitration, and in support hereof states the
following:
1 Mr. Julius Gervan, who was 98 years old, was admitted to Port Charlotte
Rehabilitation Center on January 4, 2018.
2. Prior to his admission to Port Charlotte Rehabilitation Center, Mr. Gervan had
executed a Durable Power of Attorney in favor of his daughter, Judith D. Briggs on March 10,
2016.
3 The crux of Plaintiffs argument is solely legal in nature. Plaintiff argues that the
Durable Power of Attorney specifically granted the “right to sue” to Ms. Briggs.
4 Plaintiff relies upon Black’s Law Dictionary as to the meaning of the word “sue,”
which defines same as “any proceeding by a party or parties against another in a court of law.”
5 Plaintiff then supports his conclusion, that since arbitration is the “antithesis” of the
tight to sue and that since the POA sought to convey certain, specific rights and did not contain
wording that it was to be broadly construed as a general power of attorney, the Court should deny
Defendants’ Motion to Compel Arbitration.
6. In making his argument, Plaintiff seeks to distinguish a long line of case law which
have found that a power of attorney sufficiently conveyed a broad enough general authority to
permit the attorney-in fact to agree to binding arbitration. Please see Jaylene, Inc. v. Moots, 995
So. 2d 566 (Fla. 2d DCA 2008), Sovereign Healthcare of Tampa, LLC v. Estate of Huerta ex rel.
Huerta, 14 So. 3d 1033 (Fla. 2d DCA 2009), and Emeritus Corp. v. Pasquariello, 95 So. 3d 1009
(Fla. 2d DCA 2012). Plaintiff relies on two cases in which to support his argument, state of Irons
ex. rel. Springer v. Arcadia Healthcare, L.C., 66 So. 3d 396 (Fla. 2d DCA 2011) and Carrington
Place of St. Pete, LLC v. Estate of Milo ex. rel Brito, 19 So. 3d 340 (Fla. 2d DCA).
7. Plaintiff's reliance on these two cases is misplaced.
8 In Estate of Irons, the court found that the plaintiff's power of attorney did not
broadly grant the attorney-in-fact the right to enter into arbitration but rather that the power of
attomey limited the attorney-in-fact’s authority to those associated with a health care surrogate.
The court noted that the specific powers listed in the power of attorney related to the direct
provision of medical care. In fact, the power of attorney was called a “Health Care Power of
Attorney” and designated the plaintiff as a “health care surrogate,” suggesting a limited role
involving only health care decisions, rather than the authorizing of the attorney-in-fact to act in
matters related to the plaintiff's property rights or to potential litigation with health care provides.
Id.
9. In Carrington Place of St. Pete, LLC., the court held that the power of attorney
contained language specifically as to the rights, duties, and powers that the attorney-in-fact may
exercise on behalf of the plaintiff. The court further held that the language of the power of attorney
seemingly granted authority to the attorney-in-fact related to plaintiffs property interests only. /d.
10. By contrast, Jaylene, Inc., the court found that the power of attorney gave the
attorney-in-fact “full power and authority to act on [the grantor’s] legal rights and powers.” /d at
568-569. Further, the power of attorney provided the attorney-in-fact with the power to enter the
binding contract and to settle claims. /d. at 569. Specifically, the power of attorney included a
virtually, all-inclusive grant of authority, including “full power and authority to act on my behalf.”
Due to this broad language, the court concluded that the attorney-in-fact was authorized to consent
to binding arbitration. Id.
11. Further, the court may examine the language of any catch-all provision contained
in the power of attorney, as well as the relationship of that language to the type or types of interests
over which the attorney-in-fact is specifically granted authority within the power of attorney.
Sovereign Healthcare of Tampa, LLC at 1034.
12. In Emeritus Corp. v. Pasquariello, the power of attorney granted the attorney-in-
fact sufficient authority to enter into arbitration agreement for negligence arising from the nursing
home’s alleged abuse of the resident. Although power of attorney document was entitled “Durable
Power of Attorney for Finance” claim against nursing home sought financial compensation and
therefore the power of attorney provided the attorney-in-fact with authority to submit to arbitration
litigation involving such issues. Similarly, in Candansk, LLC v. Estate of Hicks ex rel. Brownridge,
25 So. 3d 580 (Fla. 2d DCA 2009), the court held that a power of attorney that granted authority
to the attorney-in-fact to agree to arbitrate because the estate’s claim against nursing home was
property. /d at 582.
13. In the instant matter, the power of attorney granted both general authority as well
as specific powers. As in Jaylene, Inc., the power of attorney contains a virtually, all-inclusive
grant of authority “to exercise any authority reasonably necessary to give effect to an express grant
of specific authority,” as well as the ability “to take all other action as may be necessary or
appropriate for my personal well-being and the management of my affairs as fully and effectively
as if made or done by me personally.”
14. In addition to this broad grant of authority, the durable power of attomey in Jaylene,
Inc. contains specific powers, one being the ability “to sue in my name and behalf for the recovery
of any and all sums of money of other things of value, payments due or to become due to me, or
damages I have sustained or will sustain...”
15. As applied in the Sovereign Healthcare of Tampa, Emeritus Corp. and Candansk,
LLC cases, this broad grant of authority should be viewed in conjunction with the language in the
specific power to “to sue in my name”, which leads to the logical conclusion that the authority
granted to Ms. Briggs’, as Mr. Gervan’s power of attorney, gives her the right to bring an action
in an arbitral forum. See enumerated item No. 15 in Plaintiff's Exhibit A, Durable Power of
Attorney for Julius J. Gervan, page 2. Ms. Briggs is granted the broad power to “to manage all
assets and properties belonging to me or in which I have any interest”, “to exercise any authority
reasonably necessary to give effect to an express grant of specific authority in this power of
attorney,” and “to take all other action as may be necessary or appropriate for my personal well-
being and the management of my affairs as fully and effectively as if made or done by me
personally.” See enumerated items No. 1, 4, and 5 in Plaintiff's Exhibit A. Certainly, these grants
of broad authority, as in Jaylene, Inc., provided the authority to Ms. Briggs to resolve any legal
disputes through the use of an alternative dispute resolution, as the arbitral forum provides a cost
effective and expediated means of resolving legal disputes. Further, there is nothing “antithetical”
about resolving a dispute in an arbitral forum versus a courtroom, as Plaintiffs counsel has argued.
16. To the contrary, courts generally favor arbitration as a valid choice of resolving
legal disputes, and any doubt concerning the scope of the arbitration agreement should be
construed in favor of arbitration. See e.g., Gainesville Health Care Center v. Weston, 857 So. 2d
278 (Fla. 1°* DCA 2003), Hirshenson v. Spaccio, 800 So. 2d 670 (Fla. 5° DCA 2001) citing K.P.
Meiring Constr. Inc. v. Northbay, 761 So. 2d 1221 (Fla. 2d DCA 2000); Breckenridge v. Farber,
640 So. 2d 208 (Fla. 4 DCA 1994); see also Rath v. Networking Marketing, L.C. 790 So. 2d 461
(Fla. 4" DCA 2001).
17. In this case, Ms. Briggs clearly agreed to the Voluntary Agreement for Arbitration
by signing her name. See Plaintiff's Exhibit B (Resident Admission and Financial Agreement),
Section Entitled “Voluntary Agreement for Arbitration” on pages A639-A640.
18. Additionally, the Resident Admission and Financial Agreement contained the
following clause:
“EACH OF THE PARTIES HEREBY KNOWINGLY,
VOLUNTARILY AND INENTIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO
TRIAL BY JURY IN ANY LEGAL ACTION BROUGHT ON OR.
WITH RESPECT TO THIS AGREEMENT, INCLUDING TO
ENFORCE OR DEFEND ANY RIGHTS HEREUNDER...”
19. Again, Ms. Briggs indicated her consent by initialing on the signature line under
this paragraph contained within the Resident Admission and Financial Agreement. See Plaintiffs
Exhibit B, page A641.
20. Simply put, under the power of attorney, Ms. Briggs had the specific power to sue
on behalf of Mr. Gervan, and the broad authority to resolve this dispute however she saw fit --
whether it was in the courtroom or in the arbitral forum and whether it was before a judge or jury
or before a panel of chosen arbitrators.
21. As such, the arbitration agreement between Plaintiff and Defendants should be
upheld and Defendants’ Motion seeking to Compel Arbitration should be GRANTED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
James E. Keim, Esq. at staff@venicelawfirm.com venicelawfirm@gmail.com,
shauna.venicelawfirm@gmail.com this 15th day of July, 2020.
/s/ Shannon M. Ellison
Kirsten K. Ullman
Florida Bar No. 857120
Shannon M. Ellison
Florida Bar No. 223580
ULLMAN BURSA LAW
3812 Coconut Palm Drive, Suite 200
Tampa, Florida 33619
813/970-0500
sellison@ublawoffices.com
ourtmail@ublawoffices.com
kcortes@ublawoffices.com
Attomeys for Defendants
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EXHIBIT A
TABLE OF CONTENTS
Section Page
Parties........... -
ut, Term and Termination
2.04 Term...
2.02 Termination ..
ih Rights and Obligations of the Resident
3.01 Physician's Care ....
3.02 Consent to Treatment
3.03 Consent to Photographs.
3.04 Medical Education
3.05 Refusal of Treatm vance eCves
3.08 Social Responsibititi
3.07 Clinical Responsibilitie:
3.08 Pharmacy Service:
3.09 Right to Leave
3.10 Personal items
3.14 Clothing .
3,42 Smokin: base
3.13 Consumption of Alcaholic Beverage:
WV. Facility Obligations and Rights
4.01 Nondiscrimination
4.02 Facility Services.
4.03 Hospital Transfers
4.04 Bed Hold Policy and In-House Transfers
4.04.1 Medicare, Private Pay & Managed Care Resitents
4.04.2 Medicaid Residents
4.05 In-House Transfers ...,
4,06 Transfer and Discharge
4,07 Resident Trust Account
4.08 Complainis and Grievances ....
Resident Privacy
5.01 Release of Protected Health Information
5.02 MDS Privacy Act Notification. aatovese
Payment for Services
6.01 Resident's Obligations
§,02 Responsible Party's Obligations.
6.03 Private Pay
8.04 Medicaid Residents
6.05 Medicaid Pending Residents
|
— —
~~ EXHIBIT A
6.06 Medicare Residents
6.07 Other Payment Sources 10
6.08 Assignment of Benefits 10
6.09 Changes in Payment Source. 1a
6.10 Failure to Pay 10
6.11 Payment Due Dat interest; Retum Check Fee and Attorneys’ Fees 10
6.12 Refunds ....., "1
VIL Voluntary Agreement for Arbitration
7.01 Explanation 44
7.02 Agreement 11
7.03 Acknowledgments 12
VAL Miscellaneous
8.01 Waiver of Jury THal.... 43
8.02 Contributions, Donations and Gifts 13
8.03 Entirety of Agreement 13
8.04 Cooperation 43
8.05 Assignment; Benefits: 13
8.06 Governing Law 13
8.07 No Waivers 18
8.08 Headings 14
8.08 Counterpart: 14
8.10 Amendment Due to Rein rsement Change: 14
8.11 Savings Clause. 14
8.42 Acknowledgmen 44
Signatures
Addendum 1 - List of Private Pay Room Type! Dally Rates and Charge List 15
Addendum 2 - liems and Services Included in the Dally Medica’ lon-Covered
Items and Services 16
Addendum 3 - tems.and Services Covered by Medicare Part A; Non-Covered
items and Services Under Medicare part A: Medicare Part B 7
Addendum 4 - Notice of Medicare Provider Non-Coverage 18
Addendum 5 - Medicare Secondary Payer (MSP) Screening 22
Addendum 6 - Grievances and Complaints
23
Addendum 7 - Resident Fund Management Service Agreement and Authorization
to Handle Resident Funds seve 24
Addendum 8 - Personal Needs Account Beneficiary Form
26
Addendum 9 - Minimizing Theft and Loss of Resident Property
27
i
'
:}
EXHIBIT A
RESIDENT ADMISSION AND FINANCIAL AGREEMENT
This Resicent Admission and Financial Agreement ("Agreement") sets forth the terms under which
the Facility will provide health services to the Resident and how the Resident will pay for such services,
Based upon the consideration, mutual promises and agreaments set forth in this Agreement, the parties
agree as follows;
1. PARTIES
Port Charlotte Rehabilitation Center shall be referred to in this Agreement as the “Facility.” Whenever
the term Facility is used in this Agreement, except when specified otherwise in Section Vil, it refers to Port
Charlotte Rehabilitation Center, the company that operates ihe Facility, as well as |ts employees and
agents.
Sulrar (roto, (Name of Resident) shall be referred to in this Agreement as
the “Resident.” Except in Section VI of this Agreement, and when the context clearly indicates otherwise,
whenever the term ihe Resident is used, it refers to the Resklent and anyone with legal authority to make
decisions on the Resident's behalf (e.g. an agent under a health care power of atlomey, a guardian or
conservator, or a surrogate decision maker.)
Jadite Db. Brpeds {Name of Responsible Party} shall be referred to in this
Agreement as the “Responsiblé Party.” For the purpose of this Agreement, the Responsible Partly is
defined as a person who manages, uses, directs or controls funds or assets which may be used to pay for
the Resident’s Facitity charges, and/ar who tends to make decisions for or otherwise acts on behalfof the
Resident. The term “Responsible Party” will be used throughout this Agreement to collectively refer to
sither the legally appointed power of attorney, guardian, conservator, surrogate, advocate, proxy or
representative of the Resident.
i. TERM AND TERMINATION
iinet o
i 2.04 Term.
ve |
This Agreement Is effective as of the date of the Resident's admission to the Fac . The Agreement will
continue In full force end effect for this and all subsequent admissions to the Facility until any parly
terminates it as provided below. The Resident and Responsible Partly agree to execute a new Admission
Agreement or Memorandum of Readmission upon request by the Facility.
- ————
[2.02 Termination, -
The parties may mutually agree to terminate this Agreement at any time. The Resident may also
terminate this Agreement by notifying the Facility that he or she is leaving the Facility with no intention of
returning to the Facility. if the Resident is absent from the Facility for any reason for thirty (30)
consecutive days, this Agreement will be deemed to be terminated, If the Resident wishes to be
readmitted aifer such an absence, the Resident and the Facility will execute a new Resident Admission
and Financial Agreement upon request of the Facility, If the Facility does not request the execution of a
new Resident Admission and Financial Agreement, the agreement that governed the prior residency shall
apply... The Facility may terminate this Agreement by discharging the Resident in eccordance with state
and federal laws. The Responsible Party may terminate this Agreement, solely as it applies to the duties
and responsibilities of the Respansible Party, by providing the Facility thirty {30} days written notice, If this
Agreement is terminated by the Resident or the Facility as provided herein, the parties agree the
arbitration provisions found in Section Vil, if accepted by the Resident or the Resident's iegal
representative as provided in that Section, shal! survive any such termination,
a
~~ ERHIBIT A
IH. RIGHTS AND OBLIGATIONS OF THE RESIDENT
oe ° annie retin stn ~
3.04 Physician's Care. t
}|
The Resident shall remain under the care of an attending physician of his or her choice (Resident's
“Attending Physician") throughout the stay in the Facility. The Facility Is authorized to contact the
Resident's Attending Physician or histher designated alternate whenever the Resident needs medicel
services. The Resident's Attending Physician shall be one who has agreed to abide by the Facility’s
policies and who agrees te see the Resident either by visiting the Facility or through office visits. A list of
physicians, who leat residents of the Faellity is available on request. Tne Resident chooses
s blest , who can be reached at - as his or
her | Attending Physician. The Resident will notify the Facility if he or she selects a different Atiending
Physician during his or her stay at the Facility.
Kf the Resident does not select his or her own Attending Physician, or is unable to select an Attending
Physician, ihe Facility may designate an Attending Physician for the Resident. The Resident recognizes
and agrees that ail physiclans providing services to the Resident, including those the Facility may
designate, are not employees or agents of the Facility, Accordingly, the Facility is not legally responsible
for any physician's act or omission in providing services to the Resident as an Attending Physician. The
Resident shall be solely responsible for paying (or arranging for payment by a third party payor} for all
services rendered by the Resident's Attending Physician.
— a - =
"3.62 Consent to Treatment 1
—
The Resident acknowledges that the Fac’! y renders services te ihe Resident under the general : and
specific instructions of the Resident's Attending Physician. The Resident authorizes and directs the
Facility to provide routine and emergency care as the Resident's Attending Physician or designee may
direct from time to time. If the Resident's Attending Physician and such Attending Physician's on-call
designee are unavailable and the Resident requires medical services, or if the Attending Physician has not
seen the Resident in accordance with the timeframes established by law: then the Resident authorizes
Facility to obtain, on behalf of the Resident, the services of any other physician licensed to practice
medicine in this state, at the Resideni’s sole expense (if not covered by Medicaid, Medicare or a third party
payor) until the Resident's Attending Physielan |s avallable, or the Resident has selected a new Attending
Physician. In that event, the Resident authorizes and directs the Facility to provide routine and emergency
care as required for the Resident's well-being, health and safety In accordance with the orders of suoh
physician.
ee —
| 3.03 Consent to Photographs.
—
The Resident consents to the taking of photographs, videos, and other media for identification and for
rehabilitation progression purposes. Resident further consents to the taking of photographs, videos, and
other media of the Resident engaged in activities and special events at the facility and to the display of
these works at the facility. Should the facility wish to utilize the photographs, videos, and other media for
further use, the resident will be notified and permission requested via a Separate consent and release,
4 Medical Edu tion, i
ene
The Resident understands that while the Resident has the right to privacy in medical treatment a
ind
personal care, the Facility may from time to time participate in medical education programs through
which
future medical providers gain professional experience. The Resident hereby consents to treatment and
care from student health care professionals who are under supervision of licensed staff. However,
the
Resident can discontinue participation in such medical education Programs at anytime by notifying
the
Administrator or Director of Nursing in waiting.
:
t
1
EXHIBITA
ane ——
| 3.05 Refusal of Treatment and Issuance of Advance Directives ne
The Resident may refuse any medical or surgical treatment that is recommended by the Resident's
Attending Physician, If the Resident refuses treatment, then the Facillty will make its best effort to inform
the Resident of the possible consequences of such refusal. The Resident may also issue an Advance
Directive In accordance with state law that describes the Resident's wishes with respect {o treatments that
may be administered or withheld in the event the Resident becomes unable is make health care decisions
for himself or herself.
—- se
_ 3.06 Social Responsibifities,
The Resident is responsible to make his of0 her needs known to his or her Aitending Physician and staff
members and to follow the ins! ctions of Nurses and health professionals as they enforce the Facllity’s
poticies and regulations, All re: lenis are expected to give proper respect to other residents, staff, and
visitors, and to respect the rights of other residents by not behaving In a manner that would jeopardize the
health or well-being of others. The Facility requests that the Resident be considerate of noise levels and
limit the number of visitors in his or her room, respect the privacy and rights of others at all times, and
respect the property of others living and working In the Facility
oe i
| 3.07 Cth cal ) Responsibilities. 4
The Resident is responsible to provide, to the best of ‘his or - her knowledge, accurate and compiete
infarmatian about past ilinesses and hospitalizations, present complainis and medications, and other
matters relating to Resident's health, The Resident shall provide the Facility with a copy of any advance
directive when, and if, it has been executed. The Resident agrees to cooperate with the staff in planning
his or her care, and in discussing the consequences of health care decisions such as refusal of treatme:
The Resident is responsible for reporting any changes or unusual symptoms in his or her physical
condition to the Facility staff immediately,
=
(3.08 Pharmacy Services. a
The Facility has an arrangement vith a pharmacy to provide necessary prescription and over the counter
medications to its residents, The Facility may participate in a therapeutic interchange program that, with
the permission of the Resident's Attending Physician, allows the pharmacy to dispense less expensive
medications thal are the therapeutic equivalent of medications crdered by the Attending Physician, The
Resident may choose another pharmacy only if that pharmacy will sign an agreement with the Facility to
provide services in accordance with all applicable federal and stale laws and Facility policies. The
Resident agrees to pay for medications unless they are otherwise paid for by Medicaid, Medicare or other
third party payor, Ali medications, including over the counter medications, must be prescribed by a
licensed physiclan or other individual authorized by state law to write prescriptions. Resident may not
bring medications or drugs onto the Facility premises unless the medications or drugs are labeled
according to the requirements of state and federal law and are stored in accordance with state and federal
requirements for medication storage. In no event shall any over the counter or prescription medications
be stored in Resident's room. All medications rust be administered according to physician's orders
‘edications shail be administered by qualified staff unless the Facilit 's interdisciplinary team completes @
selfadministration of medication evaluation and determines that the Resident may safely identify, prepare
and self-administer medications, if the interdisciptinary team determines Resident is a candidate for self
administration of medication, a physician's order must be obtained before Resident may seif-administer
medications
een ce
33.093 Right to
to. Leave,
a
The Resi 's stay with the Facitity is voluntary. “the Resident may leave the Facility temporarily on
therapeutic leave at any lime. The Resident agrees that he or she will provide the Facility with advance
notice of plans to leave the Facility temporarily and how long the Resident expects to remain away from
3
~
EXHIBIT A
the Facility, so that the Facility may consult the Resident's Attending Physician, make arrangemenis
regarding the Resident's medication and the like, The Resident agrees that hé or she will follow Facllity
rules regarding signing in and out of the Facility whenever he or she leaves the Facility, The Resident
grees to give the Facility advance notice if the Resident intends to leave the Facility permanently so that
the Facility may obtain an appropriate discharge order from the Resident's Attending Physician. [f the
Resident feaves the Facility permanently without an appropriate physician's order, then the Facility wil!
document fhat the Resident ief against medical advice and will discharge the Resident
“3. O Personal items. ac
An inventory form listing the Resident's personal i tems S shall be completed by ihe Resident at the time of
admission. The Resident, Responsible Party and family members shall bring additions and deletions to
the inventory to the attention of the Facility's administration so thal records are current. The Resident may
ask the Facitity to accept Resident's personal items for safekeeping. However, it is best if items of large
monetary or sentimental value are not brought to the Facility, and the Facility reserves the nt fo require
that valuables be excluded or removed from the Faollity and kept at some piace nat subject to the
Facillty's control. The Facility assumes ro ilabilty for the security of personal Items retained by the
Resident or kept in the Resident's roam. Ail articles retained by the Resident, {including denturas, hearing
aids, eyeglasses, jewelry and documents} shall be the responsibility of the Resident. At the fime of
transfer or discharge, the Facility shall be accounteble only for the Resident's personal property items the
Facility has accepted for safekeeping he Resident must make arrangements to remove the Resident's
personal property trom the Facility within seventy-two (72} hours of discharge unless allernate
arrangements are made with Facility adrninistration. The Facility will dispose cf any non-monetary
personal property and belongings that remain unclaimed fourteen (14) days afier Resident's discharge
from the Facility. The Facility’s policy on Minimizing Theft and Loss of Resident Property is attached as
Addendum 8.
For safety reasons, the Facility must approve any
addition to or rearrangement of furniture, appliances,
hanging of pictures, posters, or othér similar ac:
8. All food and baverage must be stored in a safe
and sanitary manner and the Facility reserves the right to dispose of any food or beverage which is not
appropriately stored or which poses a health or safsiy risk to Residents. Resident agrees to notify the
Facility of all food items brought into the Facility so that the Resident's compliance with the presoribed diet,
if any, may be monitored,
3.11 Clothing.
The Resident agrees to “provide, to the extent possible, wash and ' wear clothing, properly tabeled and
marked in sufficient quantities for the Resident to maintain a neat appearance.
nse
3.12 Smoking,
the event Resident desires to smoke, Resident will bs evaluated by the interdisciplinary team and the
Resident's Attending Physician upen admission, annually, and as needed, to determine whether the
Resident is an independent or an atvisk smoker. Independent smokers may sraoke without assistance in
the Facility designated areas and times. At-risk smokers will be supervised while smoking. Retention,
storage and distribution of smoking accessories will be kept under the control of the Facility staff whea not
in use. Resident may only smoke In areas the Facility designates as smoking areas and at the times
designated to be smoking times.
3.13 Consumption of Alcoholic Beverages.
|
Resident may only consume aleoholic beverages attthe Facility if Resident has 3 physician's order
specifying the frequency and quantity.
we we a
EXHIBIT A
IV. FACILITY OBLIGATIONS AND RIGHTS
orice one
4.01 Nendiscrimination
once
The Facility provides care on @ non-discriminatory basis so that all residents are admitte: and receive
benefits and services without regard {to race, religion, color, national origin, age, sex, disability, marital
status of Source of payment
—~
4.02 Facility Services.
The Facility will provide the
the Resident with basis room and beard as well as nursing and personal care and
other ancillary items and services needed for the Resident's health, safety and well-being, consistent with
the orders of the Resident's Attending Physician and the Resident's plan of care. if Resident's Attending
Physician and such Attending Physician's on-call designee are unavailable, and the Resident requires
medical services, or ff the Attending Physician has not seen the Resident within the timeframes
established by law, the Resident authorizes the Facility to obtain on behalf of the Resident the services of
any other physician! Hcensed to practice medicing in this state, at the Resident's sole expense {if not
cavered by Medicaid, Medicare or third party payor).
- enc —,)
4 .03
03 Hospital
a ‘Transfers. a a ee
If a physician orders the Resident transferred to a3 hospital, the Facility will arrange for the transfer te the
hospital, Facility will not charge the Resident past the day the Residant is transferred unless the Resident
wishes to reserve the bad for when the Resident returns in accordance with the Facliily's bed hold policy.
4. D4 ‘Bed "Hold Pol
Policy “and
« In-House
hi Transfers, —~
4,041 Medicare, Private Pay & Managed Care Residents. Medicare, Insurance Companies and
Managed Care companies de nct pay to hold a bed, A bed will be held for the Resident while he
or she is In the hospital or on therapeutic leave if the Resident signs a "Bed Hold Authorization
Leiter” and pays the applicable charges when billed. 4 bed wilt be held for the number of days for
which the Resident has paid. During this time, the Resident may return and resume residence at
the Facility, An attempt will be made to keep the same room or bed the Resident previously
occupied avaitable, but this cannot be guaranteed. The Facility will not hold a bed beyond the
number of days for which it is paid. The Resident may extend the number of days ai any time by
signing another Authorization or by making arrangements with the Faowity Business Office
Manager.
4.04.2 Medicaid Residents. A vacant bed will be held for the Resident while he or she Is in the
haspilal or on therapeutic leave. The Resident is entitled for the bed to be held for eight {8} days
per hospitalization and sixteen (1 )} therapeutic leave days each year. During this time the
Resident is permitted to return and vesurne residence at the Facility. If Resident's hospitalization
exceeds the number of days indicated above, the Resident will be admitted in accardance with
state guidelines immediately upon first avaifability of a vacant bed in 2 semi-private room if
Resident requires the services provided by the Facility and Is eligible for Medicaid nursing services.
— ~
(44.05 In-House Transfers.
The Facility will make every effort to limit in-house moves unlessss requested by the Resident, Responsible
Party or family. However, in-house moves may be necessary on occasion and the Facility will provide as
much advance notice of an in-house move es possible or as required by law to Resident and/or
Responsible Party
creeper a
4.06 Transfer and Discharge.
a 1|
if the Resident is transferred from the Facility, or is on a therapeutic home leave ‘ih excess of the number
of days specified by regulations for Medicaid residents, without arranging for a private pay bed hold, the
Facility may discharge the Resident. Except in an emergency, the Facility will not transfer or discharge
55
lea
EXHIBIT A
the Resident without prior consultaiion with the Resident. The Facitity will provide the Resident with prior
written notice of any transfer or discharge to the extent required by law.
Faderal and state laws permit an involuntary transfer or discharge from the Facility when it Is necessary
for the Resident's welfare, when the Resident's needs cannot be mel in the Facility, when the Resident's
health has Improved such that the Resident no longer requires the services provided by the Facility, when
the health or safety of other individuals in the Facility are endangered, when the Resident's account
remains in arrears aller a reasonable effort has been made to collect the emount due, or when the Facility
ceases to operate. The Resident, Responsible Party, ang, if known, a family member, will be given thirty
(3G) days notice of a transfer or discharge unless the transfer or discharge is necessary for the Reskient's
welfars and the Resident's needs cannot be met In the Faprllity, or the health or safety of other residents or
Facility employees will be endangered. in such cases, the Resident will be given as much notice as is
practicabia under the circumstances. The Resident has the right to request that the locat ombudsman
council review any notice of transfer or discharge and/or to request a fair hearing to challenge the Facility’s
proposed transfer or discharge.
Aa? Resident Trust ame
Acc so
\
The Facility offers a Resident und Management Service RFMS") which Is a service provided by
National Datacare Corporation which provides a separate FDIC Insured interest bearing bank account for
the Resident. The Resident will have an individually numbered resident fund or burial account within the
Facifity master resident fund account. The Resident may have his or her recurring checks direct deposited
{6 his or her resident fund account, may make deposits and withdrawals from his or her resident fund
account at the Facility, and will receive a statement of account at least quarterly. The Resident
may elect
fo flave a resident fund transferring account In which case the amount stipulated by Resident or required
or permitted under federal, state or local law be withheld monthly for personal use and the remainder
transferred to the Facility for the payment of Resident's care costs. In the event of the death of the
Resident, any funds owed to or advanced by the Facillly are to be paid to the Facility and eny remaining
balance in the resident fund account transferred fo the Resident's estate.
‘The Resident may leave personal spending money with the Facilty. If the Resident wants a trust account
ainiained by the Facility, the Resident must sign the Resident Fund Management Service Authorization
and Agreement to Handle Resident Funds, which is attached as Addendum 6. The Facility will not charge
an additional fee for this service. The Facility or its contractor will hold the Resident's funcis in trust in
accordance with applicable federal and state laws. At least every three (3) months, the Facility shalt
furnish the Resident or the Responsible Party a complete and verified statement of the funds on deposit.
interest will bs credited to the Resident's account according to state and federal regulations, in the event
of the death of the Resident, the Facility will return all refunds and funds held in trust to the Resident's
personal representative, if one has been appointed at the time the Facility disburses the funds, and if not
to the Resident's spouse or adult next of kin named in a beneficiary designation form, which Is affached as
Addendum 7, In the event the Resident has no spouse or adult next of kin or such person cannot be
located, the property being held in trust will be disposed of pursuant to state and federal law. However, if
Resident has an outstanding balance with the Facility any funds remaining in the Resident's trust account
wilt only be distributed to the personal representative of the Resident's estate.
“4.08 Complaints and Grievances, — . sn — _
The Facillty encourages the Resident to submit grievances to enable the Facility to resolve an issue when
if and when it arises in a timely manner. The Facilily's Grievance and Complaint Procedure which
explains how fo pursue redress of 2 grievance, the names, job titles, and telephane numbers of the
employees responsible for implementing the grievance procedure, the integrity assurance hot-ting, and the
toll-free telephone hotline of thea Ombudsman or the Agency fer Health Care Administration to report the
unresolved grievance, is attached as Addendum §, The Facility wil provide assistance to the Resident if
the Resident cannot prepare the grievance without help. In addition, the Resident may file a complaint
with the state survey and certificatlon agency regarding grievances against the Facility, including
allegations of resident abuse, neglect, misappropriation of property or Facility noncompliance with
advance directive requirements.
———~- EK HH
ITA
V. RESIDENT PRIVACY
of Pr tected jealth Inform: tion.
The Facility ‘will
Taaintain ihe confidentiality of the Resident's protecte i
heal th information, which includes
5ut Is not limited to Information contained in the Resid lent's
medical and financial records,
Preview
Filing # 110310541 E-Filed 07/15/2020 07:02:39 PM IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA ESTATE OF JULIUS J. GERVAN, by and through JUDITH D. BRIGGS, as Personal Representative, Plaintiff, CASE NO.: 19-1327-CA vs. DEEP CREEK RNC, LLC and CLEAR CHOICE HEALTH CARE, LLC, Defendants. / DEFENDANTS’ REPLY TO PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION COMES NOW Defendants, DEEP CREEK RNC, LLC and CLEAR CHOICE HEALTH CARE, LLC, by and through the undersigned attorneys, and serve this reply to Plaintiff's Brief in Opposition to Defendants’ Motion to Compel Arbitration, and in support hereof states the following: 1 Mr. Julius Gervan, who was 98 years old, was admitted to Port Charlotte Rehabilitation Center on January 4, 2018. 2. Prior to his admission to Port Charlotte Rehabilitation Center, Mr. Gervan had executed a Durable Power of Attorney in favor of his daughter, Judith D. Briggs on March 10, 2016. 3 The crux of Plaintiffs argument is solely legal in nature. Plaintiff argues that the Durable Power of Attorney specifically granted the “right to sue” to Ms. Briggs. 4 Plaintiff relies upon Black’s Law Dictionary as to the meaning of the word “sue,” which defines same as “any proceeding by a party or parties against another in a court of law.” 5 Plaintiff then supports his conclusion, that since arbitration is the “antithesis” of the tight to sue and that since the POA sought to convey certain, specific rights and did not contain wording that it was to be broadly construed as a general power of attorney, the Court should deny Defendants’ Motion to Compel Arbitration. 6. In making his argument, Plaintiff seeks to distinguish a long line of case law which have found that a power of attorney sufficiently conveyed a broad enough general authority to permit the attorney-in fact to agree to binding arbitration. Please see Jaylene, Inc. v. Moots, 995 So. 2d 566 (Fla. 2d DCA 2008), Sovereign Healthcare of Tampa, LLC v. Estate of Huerta ex rel. Huerta, 14 So. 3d 1033 (Fla. 2d DCA 2009), and Emeritus Corp. v. Pasquariello, 95 So. 3d 1009 (Fla. 2d DCA 2012). Plaintiff relies on two cases in which to support his argument, state of Irons ex. rel. Springer v. Arcadia Healthcare, L.C., 66 So. 3d 396 (Fla. 2d DCA 2011) and Carrington Place of St. Pete, LLC v. Estate of Milo ex. rel Brito, 19 So. 3d 340 (Fla. 2d DCA). 7. Plaintiff's reliance on these two cases is misplaced. 8 In Estate of Irons, the court found that the plaintiff's power of attorney did not broadly grant the attorney-in-fact the right to enter into arbitration but rather that the power of attomey limited the attorney-in-fact’s authority to those associated with a health care surrogate. The court noted that the specific powers listed in the power of attorney related to the direct provision of medical care. In fact, the power of attorney was called a “Health Care Power of Attorney” and designated the plaintiff as a “health care surrogate,” suggesting a limited role involving only health care decisions, rather than the authorizing of the attorney-in-fact to act in matters related to the plaintiff's property rights or to potential litigation with health care provides. Id. 9. In Carrington Place of St. Pete, LLC., the court held that the power of attorney contained language specifically as to the rights, duties, and powers that the attorney-in-fact may exercise on behalf of the plaintiff. The court further held that the language of the power of attorney seemingly granted authority to the attorney-in-fact related to plaintiffs property interests only. /d. 10. By contrast, Jaylene, Inc., the court found that the power of attorney gave the attorney-in-fact “full power and authority to act on [the grantor’s] legal rights and powers.” /d at 568-569. Further, the power of attorney provided the attorney-in-fact with the power to enter the binding contract and to settle claims. /d. at 569. Specifically, the power of attorney included a virtually, all-inclusive grant of authority, including “full power and authority to act on my behalf.” Due to this broad language, the court concluded that the attorney-in-fact was authorized to consent to binding arbitration. Id. 11. Further, the court may examine the language of any catch-all provision contained in the power of attorney, as well as the relationship of that language to the type or types of interests over which the attorney-in-fact is specifically granted authority within the power of attorney. Sovereign Healthcare of Tampa, LLC at 1034. 12. In Emeritus Corp. v. Pasquariello, the power of attorney granted the attorney-in- fact sufficient authority to enter into arbitration agreement for negligence arising from the nursing home’s alleged abuse of the resident. Although power of attorney document was entitled “Durable Power of Attorney for Finance” claim against nursing home sought financial compensation and therefore the power of attorney provided the attorney-in-fact with authority to submit to arbitration litigation involving such issues. Similarly, in Candansk, LLC v. Estate of Hicks ex rel. Brownridge, 25 So. 3d 580 (Fla. 2d DCA 2009), the court held that a power of attorney that granted authority to the attorney-in-fact to agree to arbitrate because the estate’s claim against nursing home was property. /d at 582. 13. In the instant matter, the power of attorney granted both general authority as well as specific powers. As in Jaylene, Inc., the power of attorney contains a virtually, all-inclusive grant of authority “to exercise any authority reasonably necessary to give effect to an express grant of specific authority,” as well as the ability “to take all other action as may be necessary or appropriate for my personal well-being and the management of my affairs as fully and effectively as if made or done by me personally.” 14. In addition to this broad grant of authority, the durable power of attomey in Jaylene, Inc. contains specific powers, one being the ability “to sue in my name and behalf for the recovery of any and all sums of money of other things of value, payments due or to become due to me, or damages I have sustained or will sustain...” 15. As applied in the Sovereign Healthcare of Tampa, Emeritus Corp. and Candansk, LLC cases, this broad grant of authority should be viewed in conjunction with the language in the specific power to “to sue in my name”, which leads to the logical conclusion that the authority granted to Ms. Briggs’, as Mr. Gervan’s power of attorney, gives her the right to bring an action in an arbitral forum. See enumerated item No. 15 in Plaintiff's Exhibit A, Durable Power of Attorney for Julius J. Gervan, page 2. Ms. Briggs is granted the broad power to “to manage all assets and properties belonging to me or in which I have any interest”, “to exercise any authority reasonably necessary to give effect to an express grant of specific authority in this power of attorney,” and “to take all other action as may be necessary or appropriate for my personal well- being and the management of my affairs as fully and effectively as if made or done by me personally.” See enumerated items No. 1, 4, and 5 in Plaintiff's Exhibit A. Certainly, these grants of broad authority, as in Jaylene, Inc., provided the authority to Ms. Briggs to resolve any legal disputes through the use of an alternative dispute resolution, as the arbitral forum provides a cost effective and expediated means of resolving legal disputes. Further, there is nothing “antithetical” about resolving a dispute in an arbitral forum versus a courtroom, as Plaintiffs counsel has argued. 16. To the contrary, courts generally favor arbitration as a valid choice of resolving legal disputes, and any doubt concerning the scope of the arbitration agreement should be construed in favor of arbitration. See e.g., Gainesville Health Care Center v. Weston, 857 So. 2d 278 (Fla. 1°* DCA 2003), Hirshenson v. Spaccio, 800 So. 2d 670 (Fla. 5° DCA 2001) citing K.P. Meiring Constr. Inc. v. Northbay, 761 So. 2d 1221 (Fla. 2d DCA 2000); Breckenridge v. Farber, 640 So. 2d 208 (Fla. 4 DCA 1994); see also Rath v. Networking Marketing, L.C. 790 So. 2d 461 (Fla. 4" DCA 2001). 17. In this case, Ms. Briggs clearly agreed to the Voluntary Agreement for Arbitration by signing her name. See Plaintiff's Exhibit B (Resident Admission and Financial Agreement), Section Entitled “Voluntary Agreement for Arbitration” on pages A639-A640. 18. Additionally, the Resident Admission and Financial Agreement contained the following clause: “EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INENTIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION BROUGHT ON OR. WITH RESPECT TO THIS AGREEMENT, INCLUDING TO ENFORCE OR DEFEND ANY RIGHTS HEREUNDER...” 19. Again, Ms. Briggs indicated her consent by initialing on the signature line under this paragraph contained within the Resident Admission and Financial Agreement. See Plaintiffs Exhibit B, page A641. 20. Simply put, under the power of attorney, Ms. Briggs had the specific power to sue on behalf of Mr. Gervan, and the broad authority to resolve this dispute however she saw fit -- whether it was in the courtroom or in the arbitral forum and whether it was before a judge or jury or before a panel of chosen arbitrators. 21. As such, the arbitration agreement between Plaintiff and Defendants should be upheld and Defendants’ Motion seeking to Compel Arbitration should be GRANTED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to James E. Keim, Esq. at staff@venicelawfirm.com venicelawfirm@gmail.com, shauna.venicelawfirm@gmail.com this 15th day of July, 2020. /s/ Shannon M. Ellison Kirsten K. Ullman Florida Bar No. 857120 Shannon M. Ellison Florida Bar No. 223580 ULLMAN BURSA LAW 3812 Coconut Palm Drive, Suite 200 Tampa, Florida 33619 813/970-0500 sellison@ublawoffices.com ourtmail@ublawoffices.com kcortes@ublawoffices.com Attomeys for Defendants iniinncint ssa © co Q Port 4 Qdee Sige “y bry Charlotte Q et REHABILITATION CENTER A Sethe 1 | jon, ee? hy Uy i Se Cy RESIDENT ADMISSION AND NN i re ~ cf Ds FINANCIAL AGREEMENT \C4 MD Wes L4 VF CS Nig] NIL eC Ae SY t Sal U SS 2, NL oy WFD QA SL a pei iii si sit stisaiscins say Pee eet EXHIBIT A TABLE OF CONTENTS Section Page Parties........... - ut, Term and Termination 2.04 Term... 2.02 Termination .. ih Rights and Obligations of the Resident 3.01 Physician's Care .... 3.02 Consent to Treatment 3.03 Consent to Photographs. 3.04 Medical Education 3.05 Refusal of Treatm vance eCves 3.08 Social Responsibititi 3.07 Clinical Responsibilitie: 3.08 Pharmacy Service: 3.09 Right to Leave 3.10 Personal items 3.14 Clothing . 3,42 Smokin: base 3.13 Consumption of Alcaholic Beverage: WV. Facility Obligations and Rights 4.01 Nondiscrimination 4.02 Facility Services. 4.03 Hospital Transfers 4.04 Bed Hold Policy and In-House Transfers 4.04.1 Medicare, Private Pay & Managed Care Resitents 4.04.2 Medicaid Residents 4.05 In-House Transfers ..., 4,06 Transfer and Discharge 4,07 Resident Trust Account 4.08 Complainis and Grievances .... Resident Privacy 5.01 Release of Protected Health Information 5.02 MDS Privacy Act Notification. aatovese Payment for Services 6.01 Resident's Obligations §,02 Responsible Party's Obligations. 6.03 Private Pay 8.04 Medicaid Residents 6.05 Medicaid Pending Residents | — — ~~ EXHIBIT A 6.06 Medicare Residents 6.07 Other Payment Sources 10 6.08 Assignment of Benefits 10 6.09 Changes in Payment Source. 1a 6.10 Failure to Pay 10 6.11 Payment Due Dat interest; Retum Check Fee and Attorneys’ Fees 10 6.12 Refunds ....., "1 VIL Voluntary Agreement for Arbitration 7.01 Explanation 44 7.02 Agreement 11 7.03 Acknowledgments 12 VAL Miscellaneous 8.01 Waiver of Jury THal.... 43 8.02 Contributions, Donations and Gifts 13 8.03 Entirety of Agreement 13 8.04 Cooperation 43 8.05 Assignment; Benefits: 13 8.06 Governing Law 13 8.07 No Waivers 18 8.08 Headings 14 8.08 Counterpart: 14 8.10 Amendment Due to Rein rsement Change: 14 8.11 Savings Clause. 14 8.42 Acknowledgmen 44 Signatures Addendum 1 - List of Private Pay Room Type! Dally Rates and Charge List 15 Addendum 2 - liems and Services Included in the Dally Medica’ lon-Covered Items and Services 16 Addendum 3 - tems.and Services Covered by Medicare Part A; Non-Covered items and Services Under Medicare part A: Medicare Part B 7 Addendum 4 - Notice of Medicare Provider Non-Coverage 18 Addendum 5 - Medicare Secondary Payer (MSP) Screening 22 Addendum 6 - Grievances and Complaints 23 Addendum 7 - Resident Fund Management Service Agreement and Authorization to Handle Resident Funds seve 24 Addendum 8 - Personal Needs Account Beneficiary Form 26 Addendum 9 - Minimizing Theft and Loss of Resident Property 27 i ' :} EXHIBIT A RESIDENT ADMISSION AND FINANCIAL AGREEMENT This Resicent Admission and Financial Agreement ("Agreement") sets forth the terms under which the Facility will provide health services to the Resident and how the Resident will pay for such services, Based upon the consideration, mutual promises and agreaments set forth in this Agreement, the parties agree as follows; 1. PARTIES Port Charlotte Rehabilitation Center shall be referred to in this Agreement as the “Facility.” Whenever the term Facility is used in this Agreement, except when specified otherwise in Section Vil, it refers to Port Charlotte Rehabilitation Center, the company that operates ihe Facility, as well as |ts employees and agents. Sulrar (roto, (Name of Resident) shall be referred to in this Agreement as the “Resident.” Except in Section VI of this Agreement, and when the context clearly indicates otherwise, whenever the term ihe Resident is used, it refers to the Resklent and anyone with legal authority to make decisions on the Resident's behalf (e.g. an agent under a health care power of atlomey, a guardian or conservator, or a surrogate decision maker.) Jadite Db. Brpeds {Name of Responsible Party} shall be referred to in this Agreement as the “Responsiblé Party.” For the purpose of this Agreement, the Responsible Partly is defined as a person who manages, uses, directs or controls funds or assets which may be used to pay for the Resident’s Facitity charges, and/ar who tends to make decisions for or otherwise acts on behalfof the Resident. The term “Responsible Party” will be used throughout this Agreement to collectively refer to sither the legally appointed power of attorney, guardian, conservator, surrogate, advocate, proxy or representative of the Resident. i. TERM AND TERMINATION iinet o i 2.04 Term. ve | This Agreement Is effective as of the date of the Resident's admission to the Fac . The Agreement will continue In full force end effect for this and all subsequent admissions to the Facility until any parly terminates it as provided below. The Resident and Responsible Partly agree to execute a new Admission Agreement or Memorandum of Readmission upon request by the Facility. - ———— [2.02 Termination, - The parties may mutually agree to terminate this Agreement at any time. The Resident may also terminate this Agreement by notifying the Facility that he or she is leaving the Facility with no intention of returning to the Facility. if the Resident is absent from the Facility for any reason for thirty (30) consecutive days, this Agreement will be deemed to be terminated, If the Resident wishes to be readmitted aifer such an absence, the Resident and the Facility will execute a new Resident Admission and Financial Agreement upon request of the Facility, If the Facility does not request the execution of a new Resident Admission and Financial Agreement, the agreement that governed the prior residency shall apply... The Facility may terminate this Agreement by discharging the Resident in eccordance with state and federal laws. The Responsible Party may terminate this Agreement, solely as it applies to the duties and responsibilities of the Respansible Party, by providing the Facility thirty {30} days written notice, If this Agreement is terminated by the Resident or the Facility as provided herein, the parties agree the arbitration provisions found in Section Vil, if accepted by the Resident or the Resident's iegal representative as provided in that Section, shal! survive any such termination, a ~~ ERHIBIT A IH. RIGHTS AND OBLIGATIONS OF THE RESIDENT oe ° annie retin stn ~ 3.04 Physician's Care. t }| The Resident shall remain under the care of an attending physician of his or her choice (Resident's “Attending Physician") throughout the stay in the Facility. The Facility Is authorized to contact the Resident's Attending Physician or histher designated alternate whenever the Resident needs medicel services. The Resident's Attending Physician shall be one who has agreed to abide by the Facility’s policies and who agrees te see the Resident either by visiting the Facility or through office visits. A list of physicians, who leat residents of the Faellity is available on request. Tne Resident chooses s blest , who can be reached at - as his or her | Attending Physician. The Resident will notify the Facility if he or she selects a different Atiending Physician during his or her stay at the Facility. Kf the Resident does not select his or her own Attending Physician, or is unable to select an Attending Physician, ihe Facility may designate an Attending Physician for the Resident. The Resident recognizes and agrees that ail physiclans providing services to the Resident, including those the Facility may designate, are not employees or agents of the Facility, Accordingly, the Facility is not legally responsible for any physician's act or omission in providing services to the Resident as an Attending Physician. The Resident shall be solely responsible for paying (or arranging for payment by a third party payor} for all services rendered by the Resident's Attending Physician. — a - = "3.62 Consent to Treatment 1 — The Resident acknowledges that the Fac’! y renders services te ihe Resident under the general : and specific instructions of the Resident's Attending Physician. The Resident authorizes and directs the Facility to provide routine and emergency care as the Resident's Attending Physician or designee may direct from time to time. If the Resident's Attending Physician and such Attending Physician's on-call designee are unavailable and the Resident requires medical services, or if the Attending Physician has not seen the Resident in accordance with the timeframes established by law: then the Resident authorizes Facility to obtain, on behalf of the Resident, the services of any other physician licensed to practice medicine in this state, at the Resideni’s sole expense (if not covered by Medicaid, Medicare or a third party payor) until the Resident's Attending Physielan |s avallable, or the Resident has selected a new Attending Physician. In that event, the Resident authorizes and directs the Facility to provide routine and emergency care as required for the Resident's well-being, health and safety In accordance with the orders of suoh physician. ee — | 3.03 Consent to Photographs. — The Resident consents to the taking of photographs, videos, and other media for identification and for rehabilitation progression purposes. Resident further consents to the taking of photographs, videos, and other media of the Resident engaged in activities and special events at the facility and to the display of these works at the facility. Should the facility wish to utilize the photographs, videos, and other media for further use, the resident will be notified and permission requested via a Separate consent and release, 4 Medical Edu tion, i ene The Resident understands that while the Resident has the right to privacy in medical treatment a ind personal care, the Facility may from time to time participate in medical education programs through which future medical providers gain professional experience. The Resident hereby consents to treatment and care from student health care professionals who are under supervision of licensed staff. However, the Resident can discontinue participation in such medical education Programs at anytime by notifying the Administrator or Director of Nursing in waiting. : t 1 EXHIBITA ane —— | 3.05 Refusal of Treatment and Issuance of Advance Directives ne The Resident may refuse any medical or surgical treatment that is recommended by the Resident's Attending Physician, If the Resident refuses treatment, then the Facillty will make its best effort to inform the Resident of the possible consequences of such refusal. The Resident may also issue an Advance Directive In accordance with state law that describes the Resident's wishes with respect {o treatments that may be administered or withheld in the event the Resident becomes unable is make health care decisions for himself or herself. —- se _ 3.06 Social Responsibifities, The Resident is responsible to make his of0 her needs known to his or her Aitending Physician and staff members and to follow the ins! ctions of Nurses and health professionals as they enforce the Facllity’s poticies and regulations, All re: lenis are expected to give proper respect to other residents, staff, and visitors, and to respect the rights of other residents by not behaving In a manner that would jeopardize the health or well-being of others. The Facility requests that the Resident be considerate of noise levels and limit the number of visitors in his or her room, respect the privacy and rights of others at all times, and respect the property of others living and working In the Facility oe i | 3.07 Cth cal ) Responsibilities. 4 The Resident is responsible to provide, to the best of ‘his or - her knowledge, accurate and compiete infarmatian about past ilinesses and hospitalizations, present complainis and medications, and other matters relating to Resident's health, The Resident shall provide the Facility with a copy of any advance directive when, and if, it has been executed. The Resident agrees to cooperate with the staff in planning his or her care, and in discussing the consequences of health care decisions such as refusal of treatme: The Resident is responsible for reporting any changes or unusual symptoms in his or her physical condition to the Facility staff immediately, = (3.08 Pharmacy Services. a The Facility has an arrangement vith a pharmacy to provide necessary prescription and over the counter medications to its residents, The Facility may participate in a therapeutic interchange program that, with the permission of the Resident's Attending Physician, allows the pharmacy to dispense less expensive medications thal are the therapeutic equivalent of medications crdered by the Attending Physician, The Resident may choose another pharmacy only if that pharmacy will sign an agreement with the Facility to provide services in accordance with all applicable federal and stale laws and Facility policies. The Resident agrees to pay for medications unless they are otherwise paid for by Medicaid, Medicare or other third party payor, Ali medications, including over the counter medications, must be prescribed by a licensed physiclan or other individual authorized by state law to write prescriptions. Resident may not bring medications or drugs onto the Facility premises unless the medications or drugs are labeled according to the requirements of state and federal law and are stored in accordance with state and federal requirements for medication storage. In no event shall any over the counter or prescription medications be stored in Resident's room. All medications rust be administered according to physician's orders ‘edications shail be administered by qualified staff unless the Facilit 's interdisciplinary team completes @ selfadministration of medication evaluation and determines that the Resident may safely identify, prepare and self-administer medications, if the interdisciptinary team determines Resident is a candidate for self administration of medication, a physician's order must be obtained before Resident may seif-administer medications een ce 33.093 Right to to. Leave, a The Resi 's stay with the Facitity is voluntary. “the Resident may leave the Facility temporarily on therapeutic leave at any lime. The Resident agrees that he or she will provide the Facility with advance notice of plans to leave the Facility temporarily and how long the Resident expects to remain away from 3 ~ EXHIBIT A the Facility, so that the Facility may consult the Resident's Attending Physician, make arrangemenis regarding the Resident's medication and the like, The Resident agrees that hé or she will follow Facllity rules regarding signing in and out of the Facility whenever he or she leaves the Facility, The Resident grees to give the Facility advance notice if the Resident intends to leave the Facility permanently so that the Facility may obtain an appropriate discharge order from the Resident's Attending Physician. [f the Resident feaves the Facility permanently without an appropriate physician's order, then the Facility wil! document fhat the Resident ief against medical advice and will discharge the Resident “3. O Personal items. ac An inventory form listing the Resident's personal i tems S shall be completed by ihe Resident at the time of admission. The Resident, Responsible Party and family members shall bring additions and deletions to the inventory to the attention of the Facility's administration so thal records are current. The Resident may ask the Facitity to accept Resident's personal items for safekeeping. However, it is best if items of large monetary or sentimental value are not brought to the Facility, and the Facility reserves the nt fo require that valuables be excluded or removed from the Faollity and kept at some piace nat subject to the Facillty's control. The Facility assumes ro ilabilty for the security of personal Items retained by the Resident or kept in the Resident's roam. Ail articles retained by the Resident, {including denturas, hearing aids, eyeglasses, jewelry and documents} shall be the responsibility of the Resident. At the fime of transfer or discharge, the Facility shall be accounteble only for the Resident's personal property items the Facility has accepted for safekeeping he Resident must make arrangements to remove the Resident's personal property trom the Facility within seventy-two (72} hours of discharge unless allernate arrangements are made with Facility adrninistration. The Facility will dispose cf any non-monetary personal property and belongings that remain unclaimed fourteen (14) days afier Resident's discharge from the Facility. The Facility’s policy on Minimizing Theft and Loss of Resident Property is attached as Addendum 8. For safety reasons, the Facility must approve any addition to or rearrangement of furniture, appliances, hanging of pictures, posters, or othér similar ac: 8. All food and baverage must be stored in a safe and sanitary manner and the Facility reserves the right to dispose of any food or beverage which is not appropriately stored or which poses a health or safsiy risk to Residents. Resident agrees to notify the Facility of all food items brought into the Facility so that the Resident's compliance with the presoribed diet, if any, may be monitored, 3.11 Clothing. The Resident agrees to “provide, to the extent possible, wash and ' wear clothing, properly tabeled and marked in sufficient quantities for the Resident to maintain a neat appearance. nse 3.12 Smoking, the event Resident desires to smoke, Resident will bs evaluated by the interdisciplinary team and the Resident's Attending Physician upen admission, annually, and as needed, to determine whether the Resident is an independent or an atvisk smoker. Independent smokers may sraoke without assistance in the Facility designated areas and times. At-risk smokers will be supervised while smoking. Retention, storage and distribution of smoking accessories will be kept under the control of the Facility staff whea not in use. Resident may only smoke In areas the Facility designates as smoking areas and at the times designated to be smoking times. 3.13 Consumption of Alcoholic Beverages. | Resident may only consume aleoholic beverages attthe Facility if Resident has 3 physician's order specifying the frequency and quantity. we we a EXHIBIT A IV. FACILITY OBLIGATIONS AND RIGHTS orice one 4.01 Nendiscrimination once The Facility provides care on @ non-discriminatory basis so that all residents are admitte: and receive benefits and services without regard {to race, religion, color, national origin, age, sex, disability, marital status of Source of payment —~ 4.02 Facility Services. The Facility will provide the the Resident with basis room and beard as well as nursing and personal care and other ancillary items and services needed for the Resident's health, safety and well-being, consistent with the orders of the Resident's Attending Physician and the Resident's plan of care. if Resident's Attending Physician and such Attending Physician's on-call designee are unavailable, and the Resident requires medical services, or ff the Attending Physician has not seen the Resident within the timeframes established by law, the Resident authorizes the Facility to obtain on behalf of the Resident the services of any other physician! Hcensed to practice medicing in this state, at the Resident's sole expense {if not cavered by Medicaid, Medicare or third party payor). - enc —,) 4 .03 03 Hospital a ‘Transfers. a a ee If a physician orders the Resident transferred to a3 hospital, the Facility will arrange for the transfer te the hospital, Facility will not charge the Resident past the day the Residant is transferred unless the Resident wishes to reserve the bad for when the Resident returns in accordance with the Facliily's bed hold policy. 4. D4 ‘Bed "Hold Pol Policy “and « In-House hi Transfers, —~ 4,041 Medicare, Private Pay & Managed Care Residents. Medicare, Insurance Companies and Managed Care companies de nct pay to hold a bed, A bed will be held for the Resident while he or she is In the hospital or on therapeutic leave if the Resident signs a "Bed Hold Authorization Leiter” and pays the applicable charges when billed. 4 bed wilt be held for the number of days for which the Resident has paid. During this time, the Resident may return and resume residence at the Facility, An attempt will be made to keep the same room or bed the Resident previously occupied avaitable, but this cannot be guaranteed. The Facility will not hold a bed beyond the number of days for which it is paid. The Resident may extend the number of days ai any time by signing another Authorization or by making arrangements with the Faowity Business Office Manager. 4.04.2 Medicaid Residents. A vacant bed will be held for the Resident while he or she Is in the haspilal or on therapeutic leave. The Resident is entitled for the bed to be held for eight {8} days per hospitalization and sixteen (1 )} therapeutic leave days each year. During this time the Resident is permitted to return and vesurne residence at the Facility. If Resident's hospitalization exceeds the number of days indicated above, the Resident will be admitted in accardance with state guidelines immediately upon first avaifability of a vacant bed in 2 semi-private room if Resident requires the services provided by the Facility and Is eligible for Medicaid nursing services. — ~ (44.05 In-House Transfers. The Facility will make every effort to limit in-house moves unlessss requested by the Resident, Responsible Party or family. However, in-house moves may be necessary on occasion and the Facility will provide as much advance notice of an in-house move es possible or as required by law to Resident and/or Responsible Party creeper a 4.06 Transfer and Discharge. a 1| if the Resident is transferred from the Facility, or is on a therapeutic home leave ‘ih excess of the number of days specified by regulations for Medicaid residents, without arranging for a private pay bed hold, the Facility may discharge the Resident. Except in an emergency, the Facility will not transfer or discharge 55 lea EXHIBIT A the Resident without prior consultaiion with the Resident. The Facitity will provide the Resident with prior written notice of any transfer or discharge to the extent required by law. Faderal and state laws permit an involuntary transfer or discharge from the Facility when it Is necessary for the Resident's welfare, when the Resident's needs cannot be mel in the Facility, when the Resident's health has Improved such that the Resident no longer requires the services provided by the Facility, when the health or safety of other individuals in the Facility are endangered, when the Resident's account remains in arrears aller a reasonable effort has been made to collect the emount due, or when the Facility ceases to operate. The Resident, Responsible Party, ang, if known, a family member, will be given thirty (3G) days notice of a transfer or discharge unless the transfer or discharge is necessary for the Reskient's welfars and the Resident's needs cannot be met In the Faprllity, or the health or safety of other residents or Facility employees will be endangered. in such cases, the Resident will be given as much notice as is practicabia under the circumstances. The Resident has the right to request that the locat ombudsman council review any notice of transfer or discharge and/or to request a fair hearing to challenge the Facility’s proposed transfer or discharge. Aa? Resident Trust ame Acc so \ The Facility offers a Resident und Management Service RFMS") which Is a service provided by National Datacare Corporation which provides a separate FDIC Insured interest bearing bank account for the Resident. The Resident will have an individually numbered resident fund or burial account within the Facifity master resident fund account. The Resident may have his or her recurring checks direct deposited {6 his or her resident fund account, may make deposits and withdrawals from his or her resident fund account at the Facility, and will receive a statement of account at least quarterly. The Resident may elect fo flave a resident fund transferring account In which case the amount stipulated by Resident or required or permitted under federal, state or local law be withheld monthly for personal use and the remainder transferred to the Facility for the payment of Resident's care costs. In the event of the death of the Resident, any funds owed to or advanced by the Facillly are to be paid to the Facility and eny remaining balance in the resident fund account transferred fo the Resident's estate. ‘The Resident may leave personal spending money with the Facilty. If the Resident wants a trust account ainiained by the Facility, the Resident must sign the Resident Fund Management Service Authorization and Agreement to Handle Resident Funds, which is attached as Addendum 6. The Facility will not charge an additional fee for this service. The Facility or its contractor will hold the Resident's funcis in trust in accordance with applicable federal and state laws. At least every three (3) months, the Facility shalt furnish the Resident or the Responsible Party a complete and verified statement of the funds on deposit. interest will bs credited to the Resident's account according to state and federal regulations, in the event of the death of the Resident, the Facility will return all refunds and funds held in trust to the Resident's personal representative, if one has been appointed at the time the Facility disburses the funds, and if not to the Resident's spouse or adult next of kin named in a beneficiary designation form, which Is affached as Addendum 7, In the event the Resident has no spouse or adult next of kin or such person cannot be located, the property being held in trust will be disposed of pursuant to state and federal law. However, if Resident has an outstanding balance with the Facility any funds remaining in the Resident's trust account wilt only be distributed to the personal representative of the Resident's estate. “4.08 Complaints and Grievances, — . sn — _ The Facillty encourages the Resident to submit grievances to enable the Facility to resolve an issue when if and when it arises in a timely manner. The Facilily's Grievance and Complaint Procedure which explains how fo pursue redress of 2 grievance, the names, job titles, and telephane numbers of the employees responsible for implementing the grievance procedure, the integrity assurance hot-ting, and the toll-free telephone hotline of thea Ombudsman or the Agency fer Health Care Administration to report the unresolved grievance, is attached as Addendum §, The Facility wil provide assistance to the Resident if the Resident cannot prepare the grievance without help. In addition, the Resident may file a complaint with the state survey and certificatlon agency regarding grievances against the Facility, including allegations of resident abuse, neglect, misappropriation of property or Facility noncompliance with advance directive requirements. ———~- EK HH ITA V. RESIDENT PRIVACY of Pr tected jealth Inform: tion. The Facility ‘will Taaintain ihe confidentiality of the Resident's protecte i heal th information, which includes 5ut Is not limited to Information contained in the Resid lent's medical and financial records,