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HomeMy WebLinkAbout03-1894JACK F. KELLEY and SANDRA L. WHITCOMB as Agents for Mildred E. Kelley Under General Durable Power of Attorney Plaintiff VS. ALLIANCE HOME OF CARLISLE t/d/b/a CHAPEL POINTE OF CARLISLE, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : · ' CIVIL ACTION - LAW/,~. . ~~ : No. 2003 L',o,.'f., : : : ACTION FOR DECLARATORY JUDGMENT : : : : : NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUR WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 JACK F. KELLEY and SANDRA L. WHITCOMB as Agents for Mildred E. Kelley Under General Durable Power of Attorney Plaintiff VS. ALLIANCE HOME OF CARLISLE : t/d/b/a CHAPEL POINTE : OF CARLISLE, : Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAWN ,~~ ACTZON ~OR DECL~RATOR¥ EDDG~N? COMPLAINT AND NOW, come the Plaintiffs, Jack F. Kelley and Sandra L. Whitcomb, in their fiduciary capacities as Agents for their Mother, Mildred E. Kelley, under General Durable Power of Attorney, by their attorney, Dale F. Shughart, Jr., Esquire and make the following Complaint: 1. Plaintiff, Jack F. Kelley, is an adult individual who resides at 9 Kitzell Drive, Carlisle, PA 17013 and is an Agent for Mildred E. Kelley under General Durable Power of Attorney dated November 11, 2002. 2. Plaintiff, Sandra L. Whitcomb, is an adult individual who resides at 27 Greenfield Drive, Carlisle, PA 17013 and is an Agent for Mildred E. Kelley under General Durable Power of Attorney dated November 11, 2002. 3. Mildred E. Kelley (hereinafter "Resident,,) is an adult individual who resides at the skilled nursing care facility of the Defendant, located at 770 South Hanover Street, Carlisle, PA 17013. 4. The Defendant is the Alliance Home of Carlisle, Pennsylvania, a PennsylVania non-profit corporation trading and doing business as Chapel Pointe at Carlisle (hereinafter "Chapel Pointe"), located at 7701South Hanover Street, Carlisle, PA 17013. 5. On February 7, 2000 Mildred E. Kelley entered an "Apartment Residence Agreement,, with Chapel Pointe for Apartment No. 304, Bedford Terrace, a true and correct copy of which is attached hereto, made a part hereof and marked Exhibit "A" (herein the "Agreement,,). 6. The Resident Paid the full entrance fee required and assumed occupancy of the Apartment. 7. On October 18,2002 the Resident was placed in Chapel Pointe's skilled nursing care facility (also referred to as the "Health Center,,) at 77i0 South Hanover Street, Carlisle, PA following her discharge from the hospital. 8. It was determined by the Resident,s physician that the Resident's medical condition reasonably required that she be placed permanently in a skilled nursing care facility. The Resident subsequently aPplied for and was admitted to Chapel Pointe Health Center. The Resident h~s remained in Chapel Pointe's skilled nursing care facility since that time. 9. On November 6, 2002, the Resident vacated her Apartment at No. 304, Bedford Terrace, and delivered possession thereof to Chapel Pointe. -2- 10. Pursuant to Section 9.2 of the Agreement the Resident is entitled to a refund of the unamortized portion of her original entrance fee, which is the sum of $24,750. This sum is not disputed by Defendant. 11. On or about early March 2003, the Resident's Agent, Sandra L. Whitcomb, was advised by Linda Amsley, Sales Manager for Chapel Pointe, that the Resident's apartment had been reoccupied, but that the Resident would not be entitled to actual payment of her refund until she died or left the facility. 12. A portion of Section 9.4, Page 17 of the Agreement provides as follows: As long as Resident continues to occupy any living accommodation within the Community, including accommodations in the Personal Care Residence or Health Center, no refund shall be paid until the death, permanent transfer outside of the Community, discharge or voluntary departure outside the Community by Resident and the termination of this Agreement. 13. By letter dated March 12, 2003 the Resident's undersigned attorney advised Chapel Pointe in writing of his legal opinion that this provision is void as violative of State and Federal Law and Regulations requiring Residents to effectuate a spend down of their assets, as well as allowing other permitted transfers, until their non-exempt financial resources are exhausted, and they qualify for Medical Assistance; and demanded an immediate payment of the refund of the $24,750 unamortized portion of Resident's entrance fee. 14. The Resident's undersigned attorney received a letter in response dated March 27, 2003 from Cappozi & Associates, P.C., --3-- attorneys for Chapel Pointe at Carlisle which stated in part: So long as Mrs. Kelley remains a Resident at the Chapel Pointe Campus, Chapel Pointe is entitled to retain her entrance fee unless or until Mrs. Kelley's assets reach a point that require the entrance fee to be used to pay for her care. On the other hand, should Mrs. Kelley decide to relocate to a different facility, she will be entitled to a prorated refund of her entrance fee. 15. The Resident's undersigned attorney responded to Chapel Pointe's attorney in writing by letter dated April 1, 2003 stating his opinion that the Resident is entitled to an immediate payment of the refund in pertinent part as follows: It is our position that the portion of Section 9.4 of the Residence Agreement which purports to withhold reimbursement of a Resident's entitlement to a refund until after he or she leave Chapel Pointe or die is invalid as contrary to law. The provision, as you interpret it, prevents the Resident from exercising her right to effectuate a spend down or to make permitted transfers. Under Section 15 (Severability), this invalid provision drops out of the Agreement. 16. The Resident's undersigned attorney's letter further advised the attorney for Chapel Pointe that Mrs. Kelley did not desire to leave the facility in order to obtain payment of the refund and that, on counsel's advice, she would apply the unamortized balance of her entrance fee against monthly bills from Chapel Pointe. 17. The Resident has applied a portion of her credit balance against her monthly bills from Chapel Pointe dated March 1 and April 1, 2003 by noting the application according and returning the invoices, copies of which are attached hereto, made a part hereof, and marked Exhibit "B". -4- 18. By Notice dated April 10, 2003, but first faxed to the Resident's undersigned attorney on April 16, 2003 and received by him in the mail on April 18, 2003, Chapel Pointe's attorneys provided the Resident with a "Notice of Intention to Discharge In 30 Days", for Non-payment of Fees" 19. The Resident is simultaneously herewith appealing this Discharge Notice to the Bureau of Hearings and Appeals of the Pennsylvania Department of Public Welfare, requesting a stay of the proceedings pending a resolution of the legal issue between the parties regarding the provision of the Agreement, above quoted, which purports to deny the Resident her right to a refund until after her death or discharge from the facility, which is the subject of the action. A copy of that Appeal is attached hereto, made a part hereof and marked Exhibit ,,~,,. 20. It is believed and therefore averred that the above quoted portion of Section 9.4 of the Agreement is void as contrary to the laws of the Commonwealth of Pennsylvania and the United States of America which require patients in skilled nursing care facilities to spend down all of their resources, except for certain exempt resources, in order to qualify for Medical Assistance when their resources are exhausted, and which also allow such residents to make certain transfers and pay certain other expenses during the "Spend Down Period". 21. The position taken by the attorneys for Chapel Pointe purports to change the language of the contract to provide that the -5- Resident would be refunded her down payment when her non-exempt personal resources are exhausted. By taking this position the attorneys for Chapel Pointe are attempting to change the terms of the contract. 22. Section 15 of the Agreement is a severability clause expressly provides that invalid provisions drop from the Agreement and does not provide Chapel Pointe a right to modify the Agreement. 23. The Resident's undersigned Agents believe and therefore aver that the portion of the Agreement, which purports to deny the Resident an immediate refund of her unamortized entrance fee until her death or departure from the facility, should be declared void and unenforceable, and that Chapel Pointe be ordered and directed to refund the remaining balance of the refund to the Resident. 24. The Resident by her undersigned Agents request Your Honorable Court to declare that their application of the refund against the monthly bills from the facility to be a reasonable response to the failure of the facility to refund her the unamortized portion of her entrance fee and is in fact full payment of the fees due Chapel Pointe by Resident. WHEREFORE, Plaintiffs pray Your Honorable Court to grant the following Declaratory Relief: A. To declare the portion of Section 9.4 of the Agreement purporting to permit Defendant to withhold refund of the unamortized portion of the entrance fee to the Resident until after her death or departure from the facility null and void; --6-- B. To order and direct Chapel Pointe to immediately refund unto Mildred E. Kelley the sum of $24,750 together with interest thereon; and C. To declare that Mildred E. Kelley properly applied her credit available from the unamortized portion of her entrance fee against the monthly bills of Chapel Pointe pending resolution of this dispute to be a reasonable means of meeting her responsibility to make payment of such bills and to order the Defendant not to discharge Resident. Respectfully submitted By: ~le F. vShu~h~r j preme Co~rt~~ 35 East High Street, Carlisle, PA 17013 Phone: (717) 241-4311 Fax: (717) 241-4021 i373 Suite 203 Attorney for Plaintiffs VERIFICATION Jack F. Kelley and Sandra L. Whitcomb, Agents, for Mildred E. Kelley under General Power of Attorney, hereby verify that the facts set forth in the foregoing Appeal of Intent to Discharge are true and correct to the best of their knowledge, information and belief, and uhderstands that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications. DATE: April~ , 2003 -8- RESIDENCY AGREEMENT APARTMENT ChpaoPi 1 at Carlisle 770 South Hanover Street Carlisle, PA 17013 Issue Date: 06/30199 TABLE OF CONTENTS Page DEFINITIONS OF WORDS AND PHRASES ............................ Attachment 1 SECTION 1: LIVING ACCOMMODATIONS AND FACILITIES 1.1 Living Accommodations and Term Furnishings ........................................ - ..............1 1.3 Optional/Additional Furnishings/Appliances ............................. 2 1.4 Structural Changes and Redecoration 1.5 Common Facilities ................................. 2 1.6 Laundry Facilities ................................................. 2 1.7 Storage Facilities ................................................. 2 1.8 Personal Care Residence ........................................... 2 Health Care Center ................................................ 2 1.10 Designated Occupancy Date ........................................ 3 SECTION 2: SERVICES 2.1 Utilities ....................................................... 2.2 Assessments ...................................... 3 2.3 Telephone ....................................................... 3 2.4 Cable Television .............................................. 3 2.5 Maintenance and Repair of Equipment ......... ' ' ' ' 3 2.6 Maintenance of Grounds 2.7 Insurance ............................................ 3 2.8 Administration .................................................... 4 2.9 Food and Meals · 4 (b) Guest Meals 2.10 Housekeeping ................................................ 4 2.11 Transportation .................................................... 4 2.12 .................................................... 4 Parking ......................................................... 4 2.13 Additional Miscellaneous Services .................................... 4 2.14 Changes in Service SECTION 3.1 3.2 3.3 3.4 3.6 3.7 3-' HEALTH AND PERSONAL CARE SERVICES The Health Care Center and Personal Care Residence .................... 4 Emergency Health Care Services ..................................... 5 Temporary Nursing or Companion Services in the Apartment Unit ........... 5 Hospitalization 5 3.5 Accident'(:;r'lil~;;; ~,;~ ~o~ ~'(~n~l~l'ni~'iiiiiiiiiiiiiiiiiiiiiiill 5 Mental Illness and Other Limitations on Care ............................ Costs in the Health Center or Personal Care Residence ................... {~ (a) Exclusions (not covered by the Monthly Fee) ...................... 6 (b) Ancillary Services ............................................ 6 © Apartment Unit Reservation Costs ............................... 6 SECTION 4: FEES 4.1 (I) .. Temporary Transfer ..................................... .... (A) . Single Occupancy ........................... ...... 6 (B) . Double Occupancy ................................6 (ii)' i i Permanent Transfer ..................................... 6 (A) . Single Occupancy ................................. 7 (B) . Double Occupancy ........................ : ....... 7 7 Reservation and Entrance Fees ........................ ; .......... 7 (a) Reservation Fee .......... . .. (b) Entrance Fee ...... ' .................................. 7 (ii) .. Final Payment ...................................... .. 7 4.2 Amortization of Entrance Fee ..................................... i ' ' 8 4.3 Limitations on Increases in the Entrance Fee ..........................8 4.4 Use of Entrance Fee .................................. . ..........i ' 8 4.5 Fee for Optional/Additional Furnishings or Appliances ....... ' ............ ~ 8 4.6 Monthly Fee .................................................... 8 (a) Amount ......................................... . ...... . 8 (b) Payment and Due Date .... 8 4.7 Other Charg,e_s .................................................. 8 4.8 Co-Resident s Fee Responsibility ................................... .. 9 4.9 Service Charge for Late Payment ................................... ~ 1 9 4.10 Disclosure of Financial Information ....................................9 9 SECTION 5: FINANCIAL ASSISTANCE POLICY 5.1 Inability to pay 9 5.2 Deductions From Any Unamortized Portion of the Entrance Fee 9 5.3 Qualifications for Financial Assistance and Resident's Obligations 5.4 Possible Limitations on Assistance ........... 10 ................ 10 5.5 Other Resources and Recovery of Community's Subsid; i i ................. 11 5.6 Disclosure of Financial Resources .................................... 12 SECTION 6: MARRIAGE AND/OR ADDITIONAL OCCUPANTS 6.1 Non-Resident 6.2 Other Apartment Resid;~i ' i i i i ...................................... 11 6.3 Personal Care Resident ............................................ 12 6.4 Additional Occupant Addendum 12 SECTION 7: TERMINATION OF AGREEMENT 7.1 Termination by Resident (a) Rescission Period iiiiiiiii ................................... 13 © After Occupancy .......................................... iii 13 7.2 Termination by Community ........................ ............... 13 (a) Prior to Occupancy ............................ -.-... ... 13 (b) After Occupancy ..... . ........ 13 13 7.3 Termination by Death 7.4 Surrender .............................................. 13 SECTION 8: LEVEL OF CARE TRANSFERS OR TRANSFERS TO AN OUTSIDE FACILITY 8.1 Conditions of Apartment Unit Occupancy 8.2 Decision to Transfer ............................... 14 (b) Role of Community's Medical Director .... ' .......... 14 14 8.3 Transfers Within the Community's Facilities · 15 (a) Transfer to Personal Care Residence (b) Transfer to Health Center ...................................... 15 8.4 Transfer to Hospital or Other Outside Facility ............................15 15 8.5 Costs Related to Transfer to An Outside Facility ......................... 15 (a) Single Occupancy ........................................... 15 (b) Double Occupancy ............... 8.6 Release Of Or Return to Apartment Unit A'ft'e'r ~r;~;1;t;;r' i iiiiiii ii ii i iiii '" 16 16 (a) Temporary Transfer (b) Permanent Transfer .......................................... 16 .......................................... 16 SECTION 9: LIMITED REFUND OF ENTRANCE FEE ............................... 9.1 Termination Before Occupancy ....................................... 17 17 9.2 Termination for Any Reason Other Than Death .......................... 17 9.3 No Accrual of Interest 9.5 Distribution of Refund Upon Death 17 .................................... 18 SECTION 10: LIMITED OPTION TO MOVE TO ANOTHER APARTMENT 10.1 Option After Occupancy ............................................ 10.2 Costs of Election to Move ........................................... 18 10.3 Option to Move Addendum .......................................... 18 18 SECTION 11: ARRANGEMENTS FOR GUARDIANSHIP AND FOR ESTATE 11.1 Legal Guardian ................................................... 18 11.2 Will and Funeral Arrangements 11.3 Advance Directives ...................................... 19 (a) Power of Atto i i 19 (b) Living Will ...... SECTION 12: RIGHTS AND OBLIGATIONS OF RESIDENT 12.1 Right of Self-Organization ........................................... 12.2 Right to Receive Disclosure Statements., .............................. 19 19 12.3 Guest Privileges .......................................... 12.4 Rights to Property/Subordination ........ 20 12.5 Inspection of Apartment and Right 'ofE~r;t~ iiiiii ii ii iii ii iii ii 20 12.6 Housekeeping/Housecleaning Responsibilities ......... 12.7 Health Insurance and Third Party Payments .......................... 20 (a) Required Insurance ............................ 20 21 12.8 Automobile Insurance .................................... 12.9 Reduction of Income or Other Resources ................... i .........21 12.10 Medical Examinations .............................................. 21 21 12.11 Responsibility for Property Damage to Community ........................ 21 (a) Responsibility for Condition of Apartment Unit Upon Termination .......21 (b) Property Damages Caused by Resident .......................... 22 12.12 Release Regarding Conduct of Other Residents or Guests 12.13 Responsibility for Resident's Personal Property 22 (a) Responsibility for Loss or Damage ............................... 22 (b) Obligations Upon Termination .................................. 22 12.14 Rules, Regulations, Policies and Procedures ............................ 22 12.15 Rights of Resident Are Personal and Non-Transferrable ................... 22 SECTION 13: AVERAGE ANNUAL COST OF PROVIDING SERVICES ................. 23 SECTION 14: CASUALTY LOSS SECTION 15: SEVERABIUTY SECTION 16: ACTS OF FORBEARANCE ........................................ 2:3 SECTION 17: ENTIRE AGREEMENT SECTION 18: INDEMNIFICATION SECTION 19: SUBROGATION NOTICE M sc ,L,. ous .ows.o.s Resident's Continuing Disclosure Obii~);ii~)l~ ............................. 24 Receipt of Disclosure Statement and Resideni h~l'n~l'b'o'o'k' i i i i i i i i i i i i i i i i i i 25 25 Community's Modification of Agreement and Policies ..................... 25 Binding Effect Governing Law'i i ifll ill .......................................... 25 Disclaimer .......................................... 25 SECTION 20: SECTION 21: 21.1 21.2 21.3 21.4 21.5 21.6 NOTICE OF RIGHT TO RESCIND Apt Aomeme~t - Attachment ~ DEFINITIONS OF WORDS AND PHRASES ADDITIONAL OCCUPANT: An individual who, after Resident takes occupancy, applies and is accepted for admission to the Community to occupy as a Co-Resident the apartment unit. ASSIGNMENT OF INSURANCE: The granting of authority to the Community to apply for and collect insurance benefits from Resident's insurance carrier(s) for services furnished to Resident or on Resident's behalf by Community. CONTINUING CARE: The provision by Chapel Pointe of living accommodations and care for Resident in a residential apartment unit and, if available, in the Personal Care Residence or Health Center, until the termination of this Agreement. CO-RESIDENT: One of two individuals who signs as Resident to occupy initially one apartment unit. DESIGNATED OCCUPANCY DATE: The date designated by Chapel Pointe on which Resident must accept occupancy of the apartment unit. DOUBLE OCCUPANCY: Two individuals initially residing in an apartment unit as Co- Residents. DOUBLE OCCUPANCY FEE: The additional fee for a second occupant of the apartment unit. This charge is included in the Monthly Fee. ENTRANCE FEE: The charge for admission to Chapel Pointe. The amount of the Entrance Fee is based on the type of the apartment unit. FINANCIAL ASSISTANCE POLICY: The Community's policy regarding the possibility of providing financial assistance or subsidy to Resident in accordance with this Agreement. EXECUTIVE DIRECTOR: The individual responsible for the day-to-day operations of Chapel Pointe at Carlisle. HEALTH CENTER: The licensed nursing care facility of the Community. LIVING ACCOMMODATION: The apartment unit, or personal care room or nursing care bed provided for occupancy by Resident. MEDICAL DIRECTOR: The physician designated by Chapel Pointe to supervise the medical affairs of the Community and residents. MONTHLY FEE: The monthly charge for occupancy of an apartment unit. The amount of the Monthly Fee is based on the number of occupants of the apartment unit. In situations of double occupancy, it includes the Double Occupancy Fee. OCCUPANCY: The right to possession and use of the living accommodation. DAILY ROOM AND BOARD RATE: The daily charge for rourine personal or health care services. It does not include charges for ancillary or miscellaneous services. Routine health care services are in semi-private accommodations. There is an additional charge for private accommodations. RATE SCHEDULE: A Chapel Pointe publication reflecting current charges for services rendered by Community. REFURBISHMENT FEE: The charge for transferring and moving from the apartment unit designated under this Agreement to another apartment unit. RESERVATION FEE: The fee paid for placement of applicant's name on the Waiting List which assures priority access to the designated apartment unit over other applicants. RESIDENT HANDBOOK: A Chapel Pointe publication reflecting the rules, regulations, policies and administrative procedures of the Community. Resident is obligated to comply with the Community's rules, regulations, policies and procedures reflected in this publication. The Resident Handbook should not be construed as a contract. It does not grant any contractual rights, and it is sUbject to change from time to time. SINGLE OCCUPANCY: One individual initially residing in the apartment unit. SURRENDER: To cease to occupy a living accommodation, to remove all possessions from it, and to return all keys for it. CHAPEL POINTE AT CARLISLE APARTMENT RESIDENCY AGREEMENT THIS APARTMENT RESIDENCY AGREEMENT (called "Agreement"), made this 1-t day of February, 2000 between The Alliance Home of Carlisle, PA, a Pennsylvania non-profit corporation doing business as CHAPEL POINTE AT CARLISLE, (called "Community") and Mildred Evelyn Kelley (called "Resident", and when two individuals sign this Agreement for double Occupancy, they are called collectively "Resident" where the context permits, and individually "Co-Resident") for admission of Resident to the Community for occupancy of Buildin¢~: Bedford Terrace, Apartment# 304 RECITALS: Chapel Pointe is affiliated with The Christian and Missionary Alliance International, a church denomination, and both the Community and The Christian and Missionary Alliance are exempt from the payment of income taxes in accordance with the provisions of Section 501(c)(3) of the Internal Revenue Code. Chapel Pointe operates a continuing care retirement community consisting of a licensed health care facility, a licensed personal care facility and residential living apartment units; and, Resident has applied for admission to the residential apartment units; and, The Community has reviewed and accepted Resident's application subject to the execution of this Agreement. ' In consideration of the mutual promises contained in this Agreement, and intending to be legally bound, the Community and Resident agree as follows: SECTION 1: LIVING ACCOMMODATIONS AND FACILITIES 1.1 Living Accommodations and Term Chapel Pointe shall provide Resident with the living accommodations, common facilities and services specified in this Agreement, beginning on the Designated Occupancy Date or actual date of occupancy, whichever is earlier, and continuing until the termination of this Agreement. 1.2 Furnishin,qs. Chapel Pointe shall provide an apartment unit with Stove, Refrigerator, Washer/Dryer, and Garbage Disposal subject to the provisions of this Agreement regarding transfer to other accommodations. 1.3 Optional/Additional Fumishinqs/Appliances. The Community shall provide at additional cost optionai appliances, furnishings, or services requested by Resident, subject to approval by the Community: Apartment Agreement - June 30, 1999 - I Optional furnishings, appliances or services are not included in the Entrance or Monthly Fee. If requested prior to occupancy, the cost of ~any optional/additional furnishings/appliances shall be paid on or before the Designated Occupancy Date or prior to Occupancy, whichever is earlier. If requested after occupancy, the costs for any optional/additional furnishings/appliances shall be paid in the discretion of the Community, prior to or at the time of installation. Upon installation all additional/optional furnishings and appliances immediately become the property of the Community and shall remain in the apartment unit after the termination of this Agreement. An addendum to this Agreement reflecting all optional or additional items ahd their cost shall be signed by Resident. 1.4 Structural Changes and Redecoration. Any structural or physical change of any kind or redecoration within the living accommodation may be made only after obtaining written approval from the Community. The cost of any redecoration or structural change requested by Resident, and restoration to original condition, shall be paid by Resident unless otherwise agreed in writing by the Community. The selection of a contractor for structural changes shall be made by the Community. Resident shall be responsible for maintenance of any approved structural changes or redecoration. 1.5 Common Facilities. Resident may use in common with others the dining rooms, social and recreational facilities, library, grounds, and other facilities provided by the Community for all residents. 1.6 Laundry Facilities. Common area laundry facilities are available on the lower level of the Colonial Apartments for residents of that building only. All other apartment units are furnished with a washer/dryer. 1.7 Storage Facilities. Shared storage facilities (the size of which shall be determined solely by the Community) shall be available to Resident in a designated location. The use of the storage facilities shall be subject to the directions and supervision of the Community. 1.8 Personal Care Residence. Chapel Pointe shall operate a licensed Personal Care facility for the provision of personal care services, which shall be available on a priority access basis. 1.9 Health Care Center. Chapel Pointe shall operate a Health Care Center consisting of a licensed health care facility for the delivery of health care services, which shall be available on a priority access basis. 1.10 Desi,qnated Occupancy Date. The Community expects that the apartment unit will be available for occupancy February 7, 2000 (the "Designated Occupancy Date"). If the apartment unit is available for occupancy before the Designated Occupancy Date, Resident may take Apartment Agreement - June 30, 1999 - 2 possession on the first available date. The obligation to pay the .Monthly Fee shall begin on the Designated Occupancy Date or upon occupancy, whichever is earlier, and the Entrance Fee must be paid in full prior to occupancy. ..SECTION 2: SERVICE-~ 2.1 Utilities. Chapel Pointe shall provide hot and cold water, heat, electricity, sewer and weeklY refuse collection at a designated loCation. These services are included in the Monthly Fee. The Community reserves the right to establish maximum usage levels on utilities, and to charge Resident for any excessive or unreasonable usage. 2.2 Assessments. The Community is assessed real estate taxes. Real estate taxes are included in the monthly fee. Monthly fee adjustments will reflect any increase in future assessments. Payment of a pro-rata portion of any real estate tax assessment does not give the Resident any interest in the land, improvements, or real estate of the Community. 2.3 ..Telephone. Chapel Pointe shall provide each apartment unit with access to telephone service. All telephOne service charges, including connection charges, are not included in the Monthly Fee and shall be paid by Resident. 2.4 Cable Television. All costs for Cable television service are included in the Monthly Fee. The Community shall provide each apartment unit with access to cable television connection(s) with basic cable service. 2.5 Maintenance and Repair of Equipment. The Community shall provide necessary repairs, maintenance and replacement of the Community's property, equipment and appliances. Repairs, maintenance, and replacement of Resident's property and furnishings shall be the responsibility of Resident and are not included in the Monthly Fee. Redecoration will be at the discretion of Chapel Pointe and will be implemented as part of the Community's preventive maintenance program and is included in the Monthly Fee. 2.6 Maintenance of Grounds Chapel Pointe shall provide groundskeeping, lawn care, snow removal and grounds lighting. These services are included in the Monthly Fee. 2.7 Insurance. Chapel Pointe shall provide insurance on the Community's property only. Resident is responsible to insure personal property and for the cost of such insurance. 2.8 Administration. Chapel Pointe shall provide administrative support services to implement the provisions of this Agreement. Administrative services are included in the Monthly Fee. Apartment Agreement - June 30, 1999 - 3 2.9 Food and Meals. (a) Resident Meals. The Community shall make available at an additional charge, three meals in the Community's dining facilities. Food and meals are not included in the Monthly Fee and must be purchased at rates established by the Community, which are subject to change from time to time. (b) Guest Meals. Guest meals will be available at an additional charge at rates determined by the Community. 2.10 Housekeeping. Chapel Pointe shall make available a limited housekeeping service for an additional fee. 2.11 Transportation. Chapel Pointe shall make available local transportation service accordance with the schedule established by the Community for an additional fee. in 2.12 Parking. The Community shall provide one parking space for each apartment unit. Authorization for parking is contingent upon Resident registering the automobile with Chapel Pointe. 2.13 Additional Miscellaneous Services. Other miscellaneous services are available at an additional charge and are not included in the Monthly Fee. 2.14 Changes in Services. Chapel Pointe reserves the right to alter services and will provide thirty (30) days advance notice of any changes in services. SECTION 3: HEALTH AND PERSONAL CARE SERVICER 3.1 The Health Center and Personal Care Residence. Chapel Pointe shall operate fully approved health care and personal care facilities licensed by the Commonwealth of Pennsylvania and shall make available on a priority access basis and at an additional charge routine health care or personal care services for temporary or permanent illnesses. Resident shall sign an admission Agreement upon transfer to the health center or personal care facilities, which agreement(s) will supplement the terms of this Agreement. ~ There is no guarantee that space will be available in the Community's Personal Care Residence or Health Center at such time as resident may require personal or nursing care services. 3.2 Emergency Nursing Services. Emergency nursing intervention or initial nursing assessment by the Community in the event of an accident/emergency is available and will be provided for an additional fee. Further information concerning the Community's health care services is contained in the Resident Handbook. Apartment Agreement - June 30, 1999 - 4 3.3 Temporery Nursin,q or Companion Services in the Apartment Unit. The use of private duty nurses, companions or individuals providing personal services must be approved in writing by Chapel Pointe. All private duty nurses or companions must provide the Community with an appropriate release and Indemnification Agreement, as well as proof of liability insurance as a condition of the Community's approval. Resident must make all arrengements and is responsible to pay the cost for such services. To the extent required by law, Resident may be required to provide worker's compensation insurance. The Community reserves the right to approve/disapprove all nurses and companions and to prohibit the use of such serviceS. 3.4 Hospitalization. Chapel Pointe does not provide hospital or acute care. The Community will arrange for the prompt transfer of Resident to a hospital on order of a physician. The costs of ambulance or emergency transportation for transfer to a hospital or other acute care provider and the costs of such hospitalization and acute care are not included in this Agreement and shall be the responsibility of Resident. 3.5 Accident or Illness Away From Chapel Pointe. In the event Resident suffers an accident or illness while away from the Community, and Resident relies on health care and support services available in the area where the accident or illness occurred, Resident's health insurance or other personal resources available to Resident must be used for payment for such services. 3.6 Mental Illness and Other Limitations on Care. The Health Center and Personal Care Residence are not designed to care for persons who are afflicted with serious mental illness or who require specialized psychiatric care or services not authorized or permitted under the health center or personal care licensure regulations. Ifthe Community determines that Resident's mental or physical condition is such that Resident's, or in the case of double occupancy, one Co-Resident's continued presence in the Community is either dangerous or detrimental to the life, health, safety of Resident, or in the case of double occupancy, a Co-Resident, or other residents or the peaceful enjoyment of the Community by other residents, the Community may transfer Resident or in the case of double occupancy, a Co-Resident, to an appropriate outside care facility. The Community's determination shall be made in writing and signed by the Medical Director and the Executive Director or designee of the Community. If the transfer is for a temporary period, then the Resident shall continue to pay the applicable Monthly Fee and also shall be responsible to pay for the cost of Resident's, or in the case of double occupancy, Co-Resident's care in such other facility. If the transfer is to be permanent, then the termination provisions of this Agreement shall apply, except that only such notice of termination as is reasonable under the circumstances shall be given in any situation where the Resident is a danger to self or others, or to the health, safety or peace of the Community. 3.7 Costs in the Health Center or Personal Care Residence (a) Exclusions (not covered by the Monthly Fee). There will be an additional charge for all personal, medical, health and nursing care services. The 'cost of personal and nursing care services are not included in the Monthly fee, and Resident shall be responsible to pay the charges and costs for all health and related services, including, Apartment Agreement - June 30, 1999 - 5 but not limited to routine personal or nursing care services in the Personal Care Residence or Health-Center, therapist or rehabilitation services, physician services, diagnostic services, dental services, drugs and medications, pdvate duty nurses or companions, care for psychiatric conditions, podiatry, refractions, eyeglasses, hearing aides, orthopedic appliances, incontinence supplies, personal care supplies, specialized treatment or any other health or medical service provided under this Agreement. Resident shall pay the Daily Room and Board Rate for personal or health center services as that charge is reflected in the Description of Current Charges and Fees in the Community's Disclosure Statement. (b) Ancillary Services. All miscellaneous charges and fees for ancillary services not covered or included in the Daily Room and Board Rate are an additional charge and shall be paid by Resident. A description of the routine personal and health care services covered by and included in the Daily Room and Board Rate and ancillary services not covered by or included in the Daily Room and Board Rate is contained in the Community's current Disclosure Statement. © Apartment Unit Reservation Cost.~. Resident shall pay the then current Daily Room and Board Rate for routine personal or health center services as reflected in the Disclosure Statement and the charges for reserving the apartment unit as set forth below. (I) Temporary Transfer. (A) Sin.qle Occupancy. During any period of temporary transfer, Resident shall be charged and shall pay the Daily Room and Board Rate for routine personal or health center care and any other additional charges for ancillary or miscellaneous services in the Personal Care Residence or Health Center, and shall continue to pay the then current applicable Monthly Fee for reservation of the apartment unit. There will be no reduction in the Monthly Fee upon temporary transfer to the Personal Care Residence or Health Center. Chapel Pointe reserves the right to declare the transfer permanent at any time in accordance with Section 8.2 of this Agreement. (B) Double Occupancy. During any period of temporary transfer, the Co-Resident in the Personal Care Residence or Health Center shall be charged and shall pay the then current Daily Room and Board Rate for routine personal or nursing care, and any other additional charges for ancillary or miscellaneous services. The Co-Resident remaining in the apartment unit shall be charged and shall pay the Monthly Fee for Single Occupancy. In the event both Co-Residents are temporarily transferred, each Co-Resident shall be charged and shall pay the Daily Room and Board Rate for personal or nursing care services and any additional charges for ancillary or miscellaneous services in the Personal Care Residence or Health Center, and collectively shall be charged and shall pay the then cUrrent Monthly Fee for Single Occupancy. Each Co-Resident remains jointly and severally liable for each other's charges. Chapel Pointe reserves the right to declare any transfer permanent at any time in accordance with Section 8.2 of this Agreement. (ii) Permanent Transfer. (A) Sin.qle Occupancy. Upon the permanent transfer of Apartment Agreement - June 30, 1999 - 6 Resident to the Personal Care Residence or Health Center and surrender of the apartment unit, the obligation to pay the Monthly Fee shall cease, and Resident shall pay only the Daily Room and Board Rate for personal or nursing care services and the other additional charges for ancillary or miscellaneous services. (B) Double Occupancy. At the time one Co-Resident is permanently transferred to the Personal Care Residence or Health Center, the Monthly Fee for the apartment unit shall be reduced to the Monthly Fee for Single Occupancy. The Co-Resident in the Personal Care Residence or Health Center shall be charged and shall pay the applicable Daily Room and Board Rate for routine personal or nursing care and any additional charges for ancillary or miscellaneous services, and' the Co-Resident remaining in the apartment unit shall be charged and shall pay the Monthly Fee for Single Occupancy. In the event both Co-Residents are permanently transferred to the Personal Care Facility or Health Center, each Co-Resident shall be charged and shall pay the Daily Room and Board Rate for personal or nursing care services and any other additional charges for ancillary or miscellaneous services. Each Co-Resident remains jointly and severely liable for each other's respective charges. The obligation to pay the Monthly Fee shall cease upon permanent transfer of both Co-Residents and surrender of the apartment unit. SECTION 4: FEES 4.1 Reservation and Entrance Fees. (a) Reservation Fee. Resident shall pay the sum of $5,500.00 to Chapel Pointe as a Reservation Fee upon the Community's approval of Resident's application or at such other time as is designated by the Community. If Resident accepts occupancy of the apartment unit on or before the Designated Occupancy Date, February 7, 20110 the Reservation Fee payment will be credited towards the initial Entrance Fee payment. Failure to accept occupancy on or before the Designated Occupancy Date may result in the termination of this Agreement, the loss of all rights to occupancy, and the loss of four (4%) percent of the Entrance Fee, which will be retained by Chapel Pointe. (b) Entrance Fee. The amount of the Entrance Fee is based on the type of apartment unit selected. Resident shall pay to Chapel Pointe the sum of $$$,000.00 as an Entrance Fee. (ii) Final Payment. The sum of $49,500.00 as the final payment will be made after the sale/closing of the Resident's private home. Interest at the rate of 8% per annum will be charged on the unpaid Entrance Fee balance until it is paid in full. 4.2 Amortization of Entrance Fee. The Entrance Fee shall be amortized and earned by the Community at the Apartment Agreement - June 30, 1999 - 7 rate of twenty (20%) percent each year pro-rated monthly for a period of five years from the date of occupancy. At the conclusion of the five year amortization pedod, the Entrance Fee shall be earned in full by Chapel Pointe. 4.3 .Limitations on Increases in the Entrance Fcc. After the signing of this Agreement by Resident and payment of the initial payment, there will be no increases in the Entrance Fee prior to occupancy. 4.4 Use of Entrance Fee. The entire Entrance Fee after payment shall be used by Chapel Pointe for any corporate purpose and in any manner deemed appropriate by the Community in its sole and absolute discretion consistent with law. No portion of the Entrance Fee shall be held in Trust for Resident and the Community assumes no fiduciary obligations to Resident with respect to any amounts paid for admission to or continued occupancy in the Community. 4.5 Fee for Optional/Additional Furnishin.qs or Aooliances If applicable, the fee of -0- for any optional or additional furnishings or appliances, as reflected in the attached addendum, must be paid on or before the Designated Occupancy Date or prior to occupancy, whichever is eadier. 4.6 Monthly Fee. (a) ..Amount. Resident shall pay to Chapel Pointe a Monthly Fee of $597.00 in advance each month for SINGLE occupancy of the apartment unit. The amount of the Monthly Fee is based on the number of occupants of the apartment unit. In situations of Double Occupancy, the Monthly Fee includes the Additional Occupant Fee. (b) payment and Due Date. Payment of the first Monthly Fee is due on the date Resident accepts occupancy or the Designated Occupancy Date, whichever is eadier. The Monthly Fee shall be pro-rated if Resident assumes occupancy after the first of the month. Resident shall receive a monthly invoice on or about the third day of each subsequent month. Ail subsequent Monthly Fee payments are due on the seventh day of each month thereafter. If any Monthly Fee or other charges for care or for miscellaneous or ancillary services are not paid within thirty (30) days of the due date, then, subject to the Chapel Pointe's Financial Assistance Policy as described in this Agreement or as it may be periodically revised, the Community may elect to exercise its available rights and remedies under this Agreement, including termination. © Adiustments in Monthly Fee. The Monthly Fee may be adjusted from time to time. Chapel Pointe will provide at least thirty (30) days advance written notice of any changes in the Monthly Fee. The Community shall maintain its Monthly Fees at levels consistent with sound financial management, quality service, and the attainment of the Community's goals and objectives. 4.7 Other Char.qes. The monthly invoice shall reflect all other charges for routine personal or nursing care and for miscellaneous, ancillary or other services in addition to the Monthly Fee. Payment for all other charges also is due on or before the seventh day of the month Apartment Agreement - June 30, 1999 - 8 of receipt of the invoice. 4.8 Co-Resident's Fee Responsibility. In situations of Double Occupancy, each Co-Resident, shall be jointly and severally liable for all payments due under this Agreement. If one Co-Resident dies or leaves the facility, the remaining Co-Resident shall be responsible for payment of the applicable Monthly Fee and any other charges. 4.9 Service Char.qe For Late Payment. A service charge of one and one-quarter (1 1/4%) percent per month will be added to amounts past due in excess of thirty (30) days. Resident is obligated to pay all actual attorneys fees and costs incurred relative to the collection of any amounts past due in excess of ninety (90) days. 4.10 Disclosure of Financial Information. Chapel Pointe reserves the right to require Resident upon request to update the financial information disclosed in the application for admission. Disclosure allows the Community to monitor and project financial assistance needs. SECTION 5: FINANCIAL ASSISTANCE POLICY 5.1 !nability to Pay. It is the policy of Chapel Pointe not to terminate this Agreement solely because a Resident's inability to pay the Monthly Fee and other charges, so long as Resident qualifies for, and the Community is capable of providing financial assistance as set forth in this Agreement. It is Resident's responsibility to demonstrate an inability to meet monthly financial obligations to the Community. In the event that Resident°s income is or becomes insufficient to pay for monthly expenses incurred, Resident shall immediately apply for financial assistance either from Resident's family, church, or public welfare agencies which may be in a position to render financial assistance. Resident is required to apply for, and the Community shall have the right to apply for and obtain, if Resident qualifies, financial assistance for Resident from any appropriate governmental agency. 5.2 Deductions From Any Unamortized Portion of the Entrance Fee If financial assistance is not available from any other sources, and Resident's income and assets are no longer sufficient to pay the Monthly Fee and any other financial obligations under this agreement, then the Community shall deduct from any funds otherwise due Resident as a refund, amounts necessary to fulfill all of Resident's financial obligations under this agreement. Resident hereby authorizes such deductions from any unamortized portion of the Entrance Fee. The Community shall make such deductions from any refunds otherwise due under this agreement at such time as any amounts due the Community under this agreement have been unpaid for more than thirty (30) days from the payment due date. The Community shall continue to make such deductions from any amounts otherwise due as a refund under this agreement on a monthly basis to offset any unpaid financial obligations of Resident until all funds otherwise due Resident as a refund have been exhausted and paid to the Community. Apartment Agreement - June 30, 1999 - 9 5.3 ...Qualifications for Financial Assistance and Resident's Obli,qations. In order to qualify for consideration for financial assistance, Resident's inability to pay the Monthly Fee or related charges must not be the result of any fault, negligence or mismanagement of assets represented to be available by Resident or others representing Resident to pay for Resident's financial obligations. Additionally, the financial information provided by Resident in the application documents for admission, in documents subsequently requested by the Community, or with Resident's request for financial assistance must not contain any material misrepresentations or omissions. It is Resident's responsibility to look to all other available sources of financial assistance before making application to the Community. If Resident's family has adequate resources to provide financial assistance to Resident, that fact will be taken into consideration in determining whether any financial assistance should be granted by the Community, and if so, in what amount. If Resident transfers or unreasonably depletes assets or resources represented in the application documents for admission to be available to meet Resident's financial obligations under this agreement, Resident shall not be considered for financial assistance. Resident has an affirmative obligation to apply for financial assistance and to make Resident's financial needs and resources known to the Community at least one hundred and twenty (120) days in advance of the need for funds. 5.4 Possible Limitations on Assistance. Following the exhaustion and payment to Chapel Pointe of all funds otherwise due as a refund under this agreement, and if no funds are available from any other sources to fulfill Resident's financial obligations under this agreement, and Resident adequately demonstrates to the Community the financial inability to pay the Monthly Fee and other charges; then, subject to the Community's Financial Assistance Policy expressed herein, which may change from time to time, and the availability of'funds, the Community, upon Resident's request, shall consider Resident for financial assistance. Although there is no absolute guarantee that a resident who qualifies for consideration for financial assistance will receive any financial assistance, the Community will endeavor to provide it to the extent reasonably possible without jeopardizing the ability of the Community to care for its other residents. The ability of the Community to provide financial assistance is contingent upon a number of factors, including the availability of charitable gifts, and the financial condition of the Community. The Community retains the absolute discretion to deny requests for financial assistance and to limit the amount of financial assistance. If the Community determines that Resident qualifies for financial assistance, then the Community may provide such assistance as is necessary to enable the resident to meet the Monthly Fee obligation or other charges, provided that such assistance can be granted or continued without impairing the financial ability of the Community to provide housing and care to its other residents and the ability of the Community to operate or continue on a sound financial basis. If financial assistance is initially granted, there is no guarantee that such assistance can or will continue indefinitely, or for any specific period of time. 5.5 Other Resources and Recovery of Community's Subsidy. If Resident receives financial assistance from the Community, Resident shall not sell or otherwise transfer property without the written consent of the Community. If Resident owns any property at the time of death not disclosed on Resident's financial statements in the application documents, or acquires property subsequent to the making Apartment Agreement - June 30, 1999 - 10 of such financial statements and does not disclose its acquisition to the Community, then the Community shall be entitled to so much of such property, up to the whole value thereof, as is equal in value to the total amount of financial assistance provided Resident by the Community. This agreement shall operate as an assignment, transfer and conveyance to the Community of so much of such property, as is equal in value to the total amount of financial assistance provided by the Community, and the assignment may be enforced against Resident's estate. Resident's estate shall be liable to the Community in an amount equal to the amount of any financial assistance provided and accrued interest. The assignment herein shall apply whether or not Resident is occupying a residential unit at the Community at the time of Resident's death. Resident shall ~cooperate with the Community, including execution and delivery of instruments and documents, to implement the provisions of this paragraph. 5.6 Disclosure of Financial Resources. The Community may from time to time request verified financial statements and copies of tax returns from Resident if Resident has applied for, or is receiving financial assistance from the Community. SECTION 6: MARRIAGE AND/OR ADDITIONAL OCCUPANT~ 6.1 Non-resident. In the event that a single Resident wishes to marry or have another person not admitted to Chapel Pointe under an Apartment Residency Agreement share Resident's apartment unit as a Co-Resident, the proposed Additional Occupant must file an application for admission and meet all age, medical and other requirements for admission applicable to residents of the residential apartment unit. Admittance of an Additional Occupant shall be at the sole discretion of the Community. If the proposed Additional Occupant receives approval to occupy the apartment unit, this Agreement will be amended and the Additional Occupant shall pay one-half of the Entrance Fee in effect at the time Additional Occupant moves into the apartment unit, and the Monthly Fee shall be increased to be equivalent to the Monthly Fee for double occupancy of the apartment unit. The Entrance Fee paid by the Additional Occupant shall be amortized at the rate of twenty (20%) percent per year from the date of occupancy. After the lapse of five (5) years or upon the death of Additional Occupant the Entrance Fee shall be earned in full by the Community. In the event that the Additional Occupant dies or otherwise terminates Additional Occupant's agreement with the Community during the five (5) year amortization period, any applicable refund shall be paid to the Additional Occupant or his/her estate. In the event that the proposed Additional Occupant does not meet the requirements for admission, then the proposed Additional Occupant may request admission under such other terms and conditions as may be acceptable to the Community. If an agreement can not be reached regarding the admission of the proposed Additional Occupant, Resident may exercise the option to terminate this Agreement in accordance with its termination provisions. 6.2 ..Other A~)artment Resident In the event that Resident desires to marry another resident admitted under a separate Apartment Residency Agreement, and thereafter occupy a single apartment unit, Resident first must select and designate in writing at least sixty (60) days in advance of the proposed move, which one of the two apartment units occupied by each Resident, Apartment Agreement - June 30, 1999 - 11 shall be thereafter occupied jointly. The apartment unit not designated for joint occupancy must be surrendered on or before the date of the proposed move to the designated apartment unit. Upon transfer the Monthly Fee for double occupancy of the designated or alternative apartment unit shall be paid. The Apartment Residency Agreements shall be amended to reflect the change in the apartment unit, the change in the Monthly Fee, and any other matters reasonably necessary for the transfer of the Resident to the designated or alternative apartment unit. Upon transfer to the designated or alternative apartment unit, any unamortized portion of the Entrance Fee paid by Resident shall continue to be amortized and shall be subject to refund only in accordance with the refund provisions of this Agreement relating to Co-Residents. 6.3 Personal Care Resident. In the event that Resident desires to marry a resident of the Personal Care Residence admitted under a separate Personal Care Admission Agreement, Resident first must provide the Community with notice in writing at least sixty (60) days in advance of the proposed transfer of the personal care resident to the apartment unit. The resident occupying the Personal Care Residence and intending to transfer must be capable of satisfying the health and other conditions of occupancy of the apartment unit. If the resident proposing to transfer cannot satisfy the conditions of occupancy of the apartment unit as determined in the sole discretion of Chapel Pointe, then the Community reserves the right to deny the request to transfer to the apartment unit. If the Community denies the request to transfer, Resident may request transfer to the Personal Care Residence or alternatively may exercise the option to terminate this Agreement in accordance with its termination provisions. The transfer fee then in effect must be paid prior to the transfer of the additional occupant from the Personal Care Residence to the Apartment Unit. The transfer fee is subject to change from time to time by the Community. Upon transfer the Monthly Fee for double occupancy of the apartment unit shall be paid. The Apartment Residency Agreement shall be amended to reflect the Co-Residency of the additional occupant, the change in the Monthly Fee, and any other matters reasonably necessary for the transfer. Any unamortized portion of the Entrance Fee paid by Resident shall continue to be amortized and shall be subject to refund only in accordance with the refund provisions of this Agreement relating to Co-Residents. 6.4 Additional Occupant Addendum. If the proposed Additional Occupant's application for admission is approved, this Agreement shall be amended, and Resident and the proposed Additional Occupant shall sign an addendum. SECTION 7: TERMINATION OF AGRF~=MENT 7.1 Termination by Resident. (a) Rescission Period. Resident may terminate this Agreement within seven (7) days of execution by signing the attached Notice of Right to Rescind and delivering it to Chapel Pointe. (b) Prior to Occupancy. After the lapse of the seven (7) day rescission period, but prior to the Designated Occupancy Date, Resident may terminate this Agreement by delivering wdtten notice to Chapel Pointe prior to occupancy. In such event, and so long as Resident is not precluded from taking occupancy of the apartment unit on Apartment Agreement - June 30, 1999 - 12 the Designated Occupancy Date by illness, injury, incapacity or death, the Community shall retain and Resident shall forfeit the Reservation Fee. © After Occupancy. After occupancy, Resident may terminate this Agreement by delivery of written notice to Chapel Pointe at least sixty (60) days pdor to termination, and by the surrender of the living accommodation. Termination shall be effective after the lapse of the sixty (60) day notice period and surrender of the living accommodation. 7.2 Termination by Community. (a) Pdorto Occupancy. Chapel Pointe may terminate this Agreement at any time prior to occupancy by providing written notice to Resident prior to the Designated Occupancy Date if for whatever reason the Community elects to discontinue operations. All payments, including the Reservation Fee, shall be refunded to Resident. (b) After Occupancy. Chapel Pointe may terminate this Agreement upon a determination of just cause and delivery of thirty (30) days written notice or such written notice as is reasonable under the circumstances to Resident or Resident's representative. Just cause shall include, but not be limited to, a default in payment subject to the Community's Financial Assistance Policy, the submission of any material false information in the application documents, the failure of Resident to abide by the Community's rules, regulations, policies and procedures, the breach of any of the other terms of this Agreement, or a good faith determination in writing by the Community that continued occupancy in the living accommodation by Resident creates a serious threat or danger to the life, health, safety or peaceful enjoyment of Resident or other residents or persons in the Community. In situations where continued occupancy threatens the life, health, safety or peaceful enjoyment of the Resident or other residents, only such notice as is reasonably practicable under the circumstances will be provided Resident or Resident's representative, and termination may be effective immediately. The refund provisions of this Agreement shall apply to terminations for just cause in the same manner as such provisions would apply to any other termination. 7.3 Termination by Death. Following the death of Resident this Agreement shall terminate when the living accommodation has been surrendered to Chapel Pointe. 7.4 Surrender; The obligation to pay the Monthly Fee shall continue until the apartment unit has been surrendered by Resident, or in the case of death, by the estate or family of Resident. Surrender of the living accommodation shall be complete when Resident has ceased to occupy it, has removed all possessions from it, and has turned over to Chapel Pointe the keys for it. SECTION 8: LEVEL OF CARE TRANSFERS OR TRANSFER TO AN OUTSIDE FACILITY 8.1 Conditions of Apartment Unit Occupancy. Resident shall have the right to occupy the apartment unit for so long as Resident Apartment Agreement - June 30, 1999 - 13 satisfies the health and other conditions of occupancy. Continued occupancy of the apartment unit shall, in general, be controlled by Resident's physical and mental condition. Chapel Pointe may require Resident to obtain at Resident's expense at least one annual medical examination, or letter from Resident's attending physician confirming that Resident does not need personal or health center services, and can otherwise satisfy the Community's conditions for apartment occupancy. 8.2 Decision To Transfer. (a) Authority to Transfer. Chapel Pointe may transfer Resident from and between the apartment unit and its health center or personal care facilities, or any other appropriate care facility if it determines that such a move should be made because of the health of the Resident, for the proper operation of the Community, to comply with regulations of the Pennsylvania Department of Public Welfare, the Pennsylvania Department of Health, local regulations of the Fire Department, or any other duly constituted authorities or agencies, or otherwise to meet the requirements of law. If Resident is transferred permanently to the nursing or personal care facilities, or to any other appropriate facility authorized under this Agreement, the Community may declare Resident's apartment unit vacant and reassign the apartment unit to another resident. The decision as to whether a transfer shall be deemed temporary or Permanent shall be made by the Community in its sole discretion. The Community shall consider the opinion of Resident and the advice of a family representative, if available, and, if requested and at the Resident's expense, a private physician. The opinion of Resident and the advice of family and Resident's physician is advisory only and shall not be binding on the Community. The Community's decision regarding the temporary or permanent nature of any transfer may be made prior to the lapse of sixty (60) days from the date of transfer or at any other time deemed appropriate by Chapel Pointe. (b) Role of Chapel Pointe's Medical Director. Chapel Pointe will appoint a medical doctor licensed to practice medicine in the Commonwealth of Pennsylvania as the Community's Medical Director. Upon certification by the Community's Medical Director that Resident is no longer capable of satisfying the conditions for occupancy of the apartment unit and is in need of personal, nursing or related care, Resident or Resident's next of kin, legal representative or agent acting on Resident's behalf, will be notified by the Community that arrangements will be made for Resident's immediate transfer to the Personal Care Residence or Health Center or other appropriate care facility. The Community shall not be liable for acting in accordance with the certification of the Medical Director or attending physician. 8.3 Transfers Within the Community's Facilities. (a) Transfer to Personal Care Residence. If Resident becomes ill or incapacitated, and in the opinion of the Community's Executive Director or designee, with the advice of the Community's Medical Director, the Resident requires personal care, such care will be available on a priority access basis in the Personal Care Residence either on a temporary or permanent basis. If the Community's Executive Director or designee determines that the health of the Resident is such that occupancy in the Personal Care Center will be permanent, Resident's apartment unit will be released (if not occupied by a Co-Resident) and made available for occupancy by another. In the event that the Community decides that the transfer is permanent, Resident shall surrender the apartment Apartment Agreement - June 30, 1999 - 14 unit and cause his/her personal possessions to be removed within thirty (30) days of notice of the Community's decision. (b) Transfer to Health Center. If Resident becomes ill or incapacitated, and in the opinion of Chapel Pointe's Executive Director or designee, with the advice of the Medical Director, the Resident requires nursing care, such care will be available on a priority access basis in the Health Center either on a temporary or permanent basis. If the Community's Executive Director or designee determines that the health of the Resident is such that occupancy in the Health Center will be permanent, Resident's apartment unit will be released (if not occupied by a Co-Resident) and made available for occupancy by another. In the event that the Community decides that the transfer is permanent, Resident shall surrender the apartment unit and cause his/her personal possessions to be removed within thirty (30) days of notice of the Community's decision. 8.4 Transfer To Hospital Or Other Outside Facility. In the event that hospitalization or outside care of the Resident becomes necessary as determined by the Community's Medical Director, Resident will be transferred to a hospital or other acute or outside health care provider. In the event Resident's mental, emotional or physical condition deteriorates to the degree that in the professional opinion of the Medical Director, Resident's presence in the Community is deemed detrimental to the health, safety or peace of other residents, the Community may transfer Resident to an appropriate outside care facility. The Community's Executive Director or designee with the advice of the Medical Director may declare Resident's apartment vacant (unless occupied by a Co-resident) if Resident has been transferred to an outside health care or other special service facility or hospital for health conditions which, in the opinion of the Medical Director or Resident's physician, require permanent or prolonged residence in the outside facilities (i.e. generally sixty (60) days or more). Resident shall surrender the apartment unit and cause Resident's personal possessions to be removed from the apartment unit within thirty (30) days after notice of Community's determination that the transfer will be permanent. 8.5 Costs Related to Transfer to an Outside Facility. (a) Sinflle Occupancy. During any temporary transfer to a hospital or outside facility, Resident shall continue to pay the Monthly Fee and additionally all costs and charges related to the transfer to and occupancy of the outside facility or hospital. Upon permanent transfer to an outside facility, and after surrender of the apartment unit, the obligation to pay the Monthly Fee shall end and this Agreement shall terminate. Any refund due shall be paid in accordance with the refund provisions of this Agreement. Resident is obligated to pay the charges for transfer to and occupancy of any outside facilities including the charges for care in an outside personal or nursing care facility resulting from a transfer because of insufficient space in the Community's Personal Care Residence or Health Center. (b) Double Occupancy. During any temporary transfer of one Co-Resident to a hospital or an outside facility, the Monthly Fee for double occupancy shall continue to be due and payable. Upon the permanent transfer of one Co-Resident to an outside facility, the Monthly Fee shall be reduced to the Monthly Fee for single occupancy of the Apartment Agreement - June 30, 1999 - 15 applicable apartment unit. In the event both Co-Residents are temporarily transferred to an outside facility, the Monthly Fee for double occupancy shall continue to be due and payable. In the event both Co-Residents are permanently transferred to an outside facility, then, after the surrender of the apartment unit, the obligation to pay the Monthly Fee shall end and this Agreement shall terminate. Any refund due shall be paid in accordance with the refund provisions of this Agreement. Resident is obligated to pay all costs and charges related to the transfer to and occupancy of the outside facility or hospital, including care in an outside personal or nursing care facility resulting from a transfer because of insufficient space in the Community's Personal Care Residence or Health Center. 8.6 Release Of Or Return To Apartment Unit After Transfer. (a) Temporary Transfer. If Resident is admitted temporarily to the Community's Personal Care Residence or Health Center, or a hospital or other outside facility, with a medical prognosis of recovery and return to health consistent with the conditions of apartment occupancy, then Resident shall retain possession of the apartment unit for the purpose of resuming residency. During any period of temporary transfer to the Community's Personal Care Residence or Health Center, Resident shall pay the costs for retaining the apartment unit set forth in Section 3.7 of this Agreement. During any period of temporary transfer to a hospital or other outside facility, Resident shall pay the costs for retaining the apartment unit set forth in Section 8.5 above. Resident may return to the apartment unit at such time as the Community determines that Resident can satisfy the conditions of occupancy. (b) Permanent Transfer. If transfer, to the Community's Personal Care Residence or Health Center Residence or a hospital or other appropriate outside facility exceeds sixty (60) days, or if at an earlier time the Community determines that Resident will not be able to satisfy the conditions of occupancy so as to resume residency in the apartment unit, the Community shall have the right to declare the apartment vacant (unless occupied by a Co-resident) and release the apartment unit to another. Resident shall surrender and vacate the apartment unit within thirty (30) days of written notice of the Community's decision to permanently transfer Resident and release the apartment unit. If, in the Community's opinion, Resident subsequently recovers sufficiently to satisfy the conditions of occupancy of an apartment unit, the Community in the exercise of its discretion shall make available as soon as reasonably practicable an apartment unit with a floor plan comparable to the one relinquished. Resident shall be obligated to pay a refurbishment fee prior to re-occupancy which fee is subject to change from time to time. SECTION 9: LIMITED REFUND OF ENTRANCE FEE Upon termination of this Agreement, Community shall refund the Entrance Fee in accordance with the following provisions: 9.1 Termination Before Occupancy. The Reservation and any Entrance Fee payments will be refunded in full if the Resident rescinds this Agreement within seven (7) days in accordance with the Notice Of Right To Rescind. In the event of termination of this Agreement by death of Resident Apartment Agreement - June 30, 1999 - 16 before the Designated Occupancy Date, or in the event Resident prior to the Designated Occupancy Date is precluded from becoming a resident because of illness, injury or incapacity, then the Community shall make a full refund of the Reservation Fee and all Entrance Fee payments less any amounts deducted to cover expenses incurred by the Community at the specific written request of Resident. If Resident does not terminate this Agreement within the seven (7) day rescission period but does terminate prior to the Designated Occupancy Date, while not precluded from taking occupancy by illness, injury, incapacity or death, then the Community shall retain four (4%) percent of the Entrance Fee. Any additional payments shall be refunded to Resident less any amounts deducted to cover expenses incurred by the Community at the specific written request of Resident. 9.2 Termination For Any Reason Other Than Death The Entrance Fee, except as provided in Section 9.5 relating to termination by death of Resident, shall be amortized and accrue to the benefit of the Community at the rate of twenty (20%)percent per year pro-rated monthly for a pedod of five (5) years from the Designated Occupancy Date or date of occupancy, whichever is earlier. After the lapse of five (5) years, the Entrance Fee shall be earned in full by the Community and no part of it will be refunded. In the event of termination by reason other than death of the Resident dudng the five (5) year amortization period, any unamortized amounts pro rated on a monthly basis, less any amounts deducted to cover costs incurred by the Community to refurbish, restore or repair the apartment unit in the event of unreasonable wear and tear, or to cover costs incurred at the specific request of Resident, or to satisfy unpaid charges, shall be refunded to Resident in accordance with Section 9.4. 9.3 No Accrual of Interest. No interest will accrue to the benefit of Resident on any amounts required to be refunded under this Agreement, and no interest will be paid on termination. 9.4 Conditions and Due Date For Refund Payments. Prior to occupancy, all applicable refunds will be made after termination and within sixty days of Resident's request. After occupancy, all applicable refunds will be made only after the Resident's, or in situations of double occupancy, both Co-Residents', vacated apartment unit has been reoccupied by another resident and the Entrance Fee for the reoccupied apartment unit has been paid in full, and this Agreement has been terminated. In the event Resident's vacated apartment unit is reoccupied by a then current resident of the Community through an internal apartment unit transfer, then only at such time as the Community receives an Entrance Fee in full for the apartment unit vacated by the existing resident transferring to Resident's apartment unit under this Agreement, shall a refund be due. As long as Resident or in the case of Double Occupancy, a Co-Resident continues to occupy any living accommodation within the Community, including accommodations in the Personal Care Residence or Health Center, no refund shall be due and no refund shall be paid until the death, permanent transfer outside of the Community, discharge or voluntary departure outside the Community by Resident, or in situations of double occupancy, both Co-Residents, and the termination of this Agreement. The amount of any refund due will be calculated by reference to the date of surrender of the apartment unit. Where an apartment unit is occupied by Co-Residents, there will be no refund, partial or otherwise, upon the death, permanent transfer within or outside Community, discharge or voluntary departure from the Community of only one of the Co-Residents. Apartment Agreement - June 30, 1999 - 17 9.5 Distribution of Refund Upon Death. In the case of single occupancy, refunds to Resident's estate shall be paid to the duly appointed representative of the estate after proof of such appointment is provided to the Community in the form of a certified copy of the testamentary letters confirming such appointment. In situations of double occupancy, any applicable refund shall be paid by the Community to the estate of the last surviving Co-Resident unless otherwise agreed in writing. SECTION 10: LIMITED OPTION TO MOVE TO ANOTHER APARTMENT 10.1 Option After Occupancy. After occupancy, Resident may request to exercise a limited option to move to another apartment unit, if and when another apartment unit becomes available, in accordance with the terms and conditions set forth in this section. A request to move must be based on health, financial conditions, death of a Co-Resident, marriage, or other grounds deemed reasonably necessary by the Community. Resident may elect to move to a smaller apartment, or a larger apartment but not to an apartment of substantially equivalent size in a different location. The Community reserves the right to disapprove Resident's request to move. In the event Resident desires to exercise the option to move to another apartment unit, Resident must notify the Community in writing of the apartment unit desired. 10.2 Costs of Election to Move. If Resident elects a smaller apartment unit, Resident shall pay a Refurbishment Fee in an amount determined from time to time by the Community. There will be no Entrance Fee credit or refund even if the Entrance Fee for the surrendered apartment unit is greater than the Entrance Fee for the selected apartment. If Resident elects to move to an apartment unit which has an Entrance Fee greater than Resident paid for occupancy of the apartment unit initially designated under this Agreement, then Resident shall pay, prior to moving to the selected apartment unit, an additional amount equal to the difference between the initial Entrance Fee paid and the higher Entrance Fee in effect at the time of the move. The additional fee shall be immediately amortized and earned in full by the Community. 10.3 Option To Move Addendum. In the event Resident receives approval from the Community to move to another apartment unit, Resident shall sign an addendum to this Agreement reflecting all costs and charges related to exercising the option to move, including the Monthly Fee for the selected apartment unit. SECTION 11: ARRANGEMENTS FOR GUARDIANSHIP AND FOR ESTATE 11.1 Legal Guardian. If Resident becomes incompetent or unable to properly care for self or property, and no representative has been lawfully designated to act on behalf of Resident or no lawfully designated representative is available or able to act on behalf of Resident, then Chapel Pointe shall have the option to institute legal proceedings to adjudge Resident incompetent and have a guardian appointed for Resident's estate. All costs of such legal proceedings, including actual legal fees, shall be paid by Resident orthe legally appointed guardian of Resident's estate. Apartment Agreement - June 30, 1999 - 18 11.2 Will and Funeral Arrangements. The name of the executor/executrix designated in Resident's will, and the name of the funeral director selected by Resident shall be provided in writing to the Community. In the event that Resident changes the name of the executor/executrix designated in Resident's will or selects another funeral director, Resident shall notify the Community of the changes in writing. The name and address of the designated executor/executrix is Sandra L. Whitcomb, 27 Greenfield Drive, Carlisle PA 17013. 11.3 Advance Directives. (a) Power Of Attorney. Resident shall furnish Chapel Pointe, no later than the date of occupancy, a durable power of attorney executed by Resident which shall be maintained in the files of the Community. The name and address of the designated power of attorney is Jack Kelley, 9 Kitzel DHve, Carlisle PA 17013 and Sandra L. Whitcomb, 27 Greenfield Drive, Carlisle PA 17013. (b) Living Will. If Resident has executed an advance directive in the form of a living will relating to the provision of health care services in the event of terminal or other illnesses/conditions, Resident shall provide the original draft of the living will to Community, and the original draft of any revisions or changes made to the document during Resident's term of occupancy. In the event of transfer to the Health Center, Chapel Pointe shall comply with the instructions or requests of Resident as reflected in Resident's living will, if Resident's advance instructions/requests are consistent with law and the Community's policy, as such policy may change from time to time. If the Community cannot comply with Resident's advance directive as reflected in Resident's living will, then the Community shall assist in arranging for the transfer of Resident to another health care provider, if reasonably available, which will comply with Resident's advance directive. The transfer and cost of care in another health care facility shall be an additional cost, and Resident shall be responsible to pay such costs. SECTION 12: RIGHTS AND OBLIGATIONS OF RESIDENT 12.1 Ri[iht Of Self-Or,qanization. Residents of Chapel Pointe shall have the right of self-organization. A representative designated by the Community's Board of Directors shall hold quarterly meetings with the organization representing the residents known as the "Resident's Council". At least seven (7) days notice of each quarterly meeting shall be given. The purpose of the quarterly meetings shall be to discuss such subjects as the Community's income, expenditures, financial trends and issues, and proposed changes in policies, programs, and services. 12.2 Ri,qht To Receive Disclosure Statements. The Community shall make available to Resident at the time of the execution of this Agreement, and at least annually thereafter, a copy of its disclosure statement required by the Continuing Care Provider Registration and Disclosure Act, Act No. 82 of 1984. 12.3 Guest Privileges. Resident shall be authorized to entertain and accommodate guests in accordance with Chapel Pointe's guest policy as reflected in the Resident Handbook. The Community's policy is subject to change from time to time. Apartment Agreement - June 30, 1999 - 19 12.4 Ri,qhts To Property/Subordination. The rights and privileges granted to Resident do not include any right, title or interest in any part of the personal property, land, buildings and improvements owned or administered by the Community. Resident's rights are primarily for services, with a contractual right of occupancy. Nothing contained in this Agreement shall be construed to create the relationship of landlord and tenant between Chapel Pointe and Resident. Any rights, privileges, or benefits under this Agreement shall be subordinate to any existing or subsequent mortgages or deeds of trust on any of the premises or to any other interest in the real property of the Community and to all amendments, modifications, replacements, or refinancings of any existing or subsequent mortgages or deeds of trust or any other comparable interests. Upon request Resident shall execute and deliver any document which is required by the Community, or by the holder of any such mortgages or deeds of trust or similar interests, to effect such subordination or to evidence the same. 12.5 Inspection of Apartment and Right of Entry. Resident shall permit the Community, or its agents, or any representative of any holder of a mortgage or similar interest on the property, or, when authorized by the Community, the employees of any contractor, utility company, municipal agency or others, to enter the apartment for the purpose of making reasonable inspections and repairs and replacements. Such entry will be made only with reasonable advance notice, except in emergency situations. The Community shall have the right to enter the apartment unit to perform scheduled housekeeping, and to perform routine maintenance and for other reasonably necessary purposes having due regard for Resident's pdvacy. 12.6 Housekeepin,q/Housecleanin,q Responsibilities. Resident shall maintain the apartment in a clean, sanitary, and orderly condition. If Resident does not maintain the apartment in a reasonable manner, the Community, after notice to Resident, shall have the right to maintain the apartment, and the cost of such additional cleaning or maintenance shall be charged to Resident. 12.7 Health Insurance and Third Party Payments. (a) Required Insurance. Chapel Pointe expects that some of the cost of medicines, medical or nursing services or equipment provided for Resident under this Agreement will be paid by present or future federal, state, municipal, or private plans or programs of medical/surgical insurance, including, without limitation, the benefits available through Social Security programs (commonly known as "Medicare A and B"). Resident is encouraged to carry medical and surgical insurance for protection from medical risks and is required to obtain prior to occupancy and maintain in force at Resident's expense maximum coverage available under the federal government social security health insurance program known as "Medicare A and B", or an equivalent policy and at least one supplemental co-pay health insurance policy with Medicare co-insurance coverage for skilled nursing facility care, (commonly known as "medigap" insurance), such as Blue Cross-Blue Shield Security 65 Plans C and H, or an equivalent policy as approved by the Community. For a Resident under age 65, a substitute basic insurance coverage policy is required. If proceeds from Medicare and the co-pay health insurance policies are allowable for nursing or related care provided by the Community, those proceeds shall be paid to the Community directly if billed directly by the Community. Proof of such insurance must be provided at the time of application and prior to admission. In the event Resident Apartment Agreement - June 30, 1999 - 20 fails to maintain in force, because of failure to make premium payments, such health care insurance after occupancy, the Community reserves the right to make such payments for purposes of maintaining such insurance in force for Resident°s benefit. Resident is obligated to reimburse the Community for such payments made on behalf of Resident and the cost of such premium shall be added to and included in the Monthly Fee. (b) Assignment of Required Insurance and Third Party Payments. If Resident becOmes eligible to receive payments from any third party for services provided under this Agreement by the Community, Resident shall at all times cooperate fully with the Community and each third party payor so that the Community may make claim for and receive any applicable third party payments. The Community has the dght to any applicable benefits payable to Community under the insurance coverages required by this Agreement. 12.8 Automobile Insurance. Residents who drive motor vehicles shall maintain their own automobile liability insurance to cover liability and medical expenses arising from injury to themselves and others. 12.9 Reduction Of Income or Other Resources. Resident shall make every reasonable effort to meet his/her financial obligations to Chapel Pointe. Resident shall not transfer control of assets or property or make any gifts subsequent to the date of application for admission and shall not make any transfers or gifts after occupancy, which would substantially impair Resident's ability or the ability of Resident's estate to satisfy Resident's financial obligations to the Community. 12.10 Medical Examinations. Resident must be examined by a qualified physician of Resident's own choosing prior to occupancy, and must make the results of the examination available to Chapel Pointe in writing. If the pre-occupancy medical examination reveals that Resident's health is not consistent with the conditions of occupancy in the residential apartment unit, the Community may terminate this Agreement. Chapel Pointe reserves the right to require Resident, upon request by the Community, to obtain annual medical examinations at Resident's expense and submit the results of the examinations to the Community. 12.11 Responsibility For Property Dama.qe to Community. (a) Responsibility for Condition of Apartment Unit Upon Termination. Upon termination of this Agreement, Resident shall vacate and surrender the apartment unit and leave it in as good condition as the date of occupancy except for reasonable wear and tear. If the apartment unit is damaged beyond ordinary wear and tear, the costs of repair shall be the obligation of Resident and such costs shall be billed directly to Resident or Resident's estate, or alternatively, deducted from any refund that may be due. (b) Property Damaqes Caused by Resident. Any loss or damage to real or personal property of the Community caused by Resident or Resident's guests shall be paid for by Resident. In the event of Resident's death, Resident's estate shall be liable for any loss or damage to the Community's property caused by Resident. Apartment Agreement - June 30, 1999 - 21 12.12 Release Reeardina Conduct of Other Residents or Guests. Chapel Pointe assumes no liability for the conduct of Resident or any other residents or guests, and Resident hereby releases and discharges the Community from any claims for personal injury to Resident or damages to Resident's personal property caused by the conduct of other residents or guests. 12.13 Responsibility For Resident's Personal Property. (a) Responsibility for Loss or Damage. The Community shall not be responsible for the loss or damage due to fire, theft, or other causes of any property belonging to Resident or Resident's estate or Resident's guests, including motor vehicles, unless the care and control of such property is specifically accepted in writing by the Community, and then only for willful or gross negligence in failing to safeguard and account for it. Resident shall have the responsibility to provide such insurance as Resident deems necessary to protect against any such losses. No personal property insurance is provided Resident by the Community, and Resident bears the risk of any damage or loss to personal property held in storage by the Community. (b) Obli,qations Upon Termination. If Resident has become unable to comply with the conditions of occupancy of the living accommodation, or this Agreement has been terminated for any reason, Resident or the duly authorized representative of Resident's estate must remove all personal property from the living accommodation, including property held in storage. If Resident's personal property is not removed by Resident or Resident's representative within thirty (30) days of Resident's permanent transfer from the living accommodation or termination of this Agreement, Chapel Pointe shall dispose of Resident's property in any manner it deems appropriate, and shall not be liable or responsible for any damages to it. Resident or Resident's estate shall be obligated to pay all costs for the removal, storage or disposal of Resident's property. If Resident's property is moved to and stored in a commercial warehouse, the Community shall have no liability or responsibility for Resident's property during the transfer of the property or the storage of it. 12.14 Rules, Re.qulations, Policies and Procedures. Resident shall cooperate fully with Chapel Pointe to maintain the living accommodation and common facilities in a neat and orderly manner, and shall comply with all rules, regulations, policies and procedures established by the Community. The Community's rules, regulations, policies and procedures are set forth in the Resident Handbook, and other publications or documents of the Community, and are subject to change from time to time. 12.15 Rights of Resident Are Personal and Non-transferable The rights and privileges of Resident under this Agreement are personal to Resident and cannot be transferred or assigned. No person other than Resident may occupy or use the living accommodations covered by this Agreement unless approval is obtained in writing from Chapel Pointe. SECTION 13: AVERAGE ANNUAL COST OF PROVIDING SERVICE~ The average annual cost of proViding care and services during the most recent twelve month period for which a report is available for a resident is NIA. Apartment Agreement - June 30, 1999 - 22 SECTION 14: CASUALTY LOSS In the event the living accommodation occupied by Resident, or the building in which the living accommodation is located, is destroyed or so damaged by fire or other casualty so as to render the living accommodation or the building generally unfit for occupancy, Chapel Pointe in its sole and absolute discretion may elect to rebuild and restore the living accommodation and building, or exercise its option to terminate this Agreement. In the event of termination, no further obligation shall rest on either party under this Agreement except those expressed in the refund provisions or described as surviving termination. In the event Resident is unable to occupy the living accommodation for any period of time during any reasonably necessary period of restoration of the living accommodation, the Monthly Fee shall be reduced proportionately, unless a vacant living accommodation is available for temporary occupancy. Resident shall be responsible to locate and pay the costs of any temporary housing or residence during any reasonably necessary period of repairs. The Community shall not be liable for any damage, compensation or claim by reason of inconvenience or annoyance arising from the necessity of repairing any portion of the living accommodation or building, or the interruption in use of the living accommodation, or the termination of this Agreement by reason of the destruction of the living accommodation or building. SECTION 15: SEVERABILITY If any provision of this Agreement is determined by a judicial or administrative tribunal of proper jurisdiction to be invalid or unenforceable, such provision shall be severed and the balance of this Agreement shall remain in full force and effect. SECTION 16: ACTS OF FORBEARANCE No act of forbearance or failure to insist upon prompt performance of any of the terms of this Agreement by Chapel Pointe shall be construed as a waiver of any of the rights granted to Community. SECTION 17: ENTIRE AGREEMENT This Agreement along with any applicable addendum(s) constitute the entire Agreement between Chapel Pointe and Resident. The Community shall not be responsible or liable for any statements, representations or promises made by any person representing or purporting to represent the Community, unless such statements, representations or promises are set forth in this Agreement. Any brochures or advertisements describing the Community are for the purpose of inviting inquiries only and are not to be relied upon as legally or contractually binding. Resident may not amend this Agreement except by a subsequent written Agreement approved by the Community's Board of Directors and executed by the parties. SECTION 18: INDEMNIFICATION Chapel Pointe shall not be responsible or liable for, and Resident shall indemnify, defend and hold the Community harmless from any and all claims, losses, damages, fines, penalties, expenses, judgments, reasonable settlements, or lawsuits, including actual attorneys' fees and all costs incurred in defending against any such claims, arising from or based upon any injury or death to persons or any damages to property caused by, or arising from, or based on, or in any way attributable to or connected Apartment Agreement - June 30, 1999 - 23 with the negligent, reckless, intentional or other acts, conduct or omissions of Resident. Resident's indemnification obligation is payable on demand by the Community. SECTION 19: SUBROGATION In the event Resident is physically injured by an individual or entity not a party to this Agreement, Resident grants to the Community a right of subrogation, and authorizes the Community to bring such demands, claims or legal proceedings in the name of or on behalf of Resident for purposes of recovering from any third party or third party's insurer responsible for Resident's injury, the dollar value of all care provided by the Community to Resident as a result of any such injury. Resident shall cooperate and sign any documents necessary to facilitate the Community's ability to exercise its subrogation right. SECTION 20: NOTICE Notice, when required by the terms of this Agreement, shall be deemed to have been properly given, if and when delivered personally or, if sent by certified mail, return receipt requested, when postmarked, postage prepaid and addressed as follows: To Chapel Pointe: CHAPEL POINTE AT CARLISLE. 770 South Hanover Street Carlisle, PA 17013 Attention: Executive Director To Resident (Before Occupancy): Mildred E. Kelley S. Eastwick Court, CaHisle, PA 17013 After occupancy, notice will be provided to Resident at the living accommodation specified in this Agreement. SECTION 21: MISCELLANEOUS PROVISIONS 21.1 Resident's Continuing Disclosure Obligation. The information regarding Resident°s age, health and financial affairs submitted by Resident in the forms and related application documents constitutes a material part of this Agreement, and said information is incorporated as a part of this Agreement. Resident acknowledges that the submission of false information shall constitute grounds for the termination of this Agreement. Resident must disclose any material changes in the Resident's physical, financial or mental condition. The failure to make such disclosure shall constitute grounds to terminate this Agreement. 21.2 Receipt of Disclosure Statement and Resident Handbook. Resident acknowledges receiving a copy of Chapel Pointe's annual Disclosure Statement and Resident Handbook prior to signing this Agreement. 21.3 Community's Modification of A,qreement and Policies. Chapel Pointe reserves the right to modify unilaterally this Agreement to conform to changes in law or regulation, and to make modifications in its rules, regulations, policies and procedures. Apartment Agreement - June 30, 1999 - 24 21.4 Binding Effect. This Agreement shall bind and serve to benefit the legal representatives, successors and assigns of the Community, and the heirs, executors, administrators and assigns of Resident. 21.5 Governing Law. This Agreement shall be interpreted according to the laws of the Commonwealth of Pennsylvania. 21.6 Disclaimer. The Christian and Missionary Alliance International Church is not responsible for any obligations or liabilities of Chapel Pointe. Resident hereby acknowledges reading this Agreement in its entirety, understanding its provisions, and having been provided an opportunity to consult with personal advisors, including legal counsel, regarding its terms. IN WITNESS WHEREOF, Chapel Pointe has caused this Agreement to be signed by its authorized representative, and the Resident has hereunto affixed his/her/their signature(s), the day and year first above written. Attest: CHAPEL POINTE AT CARLISLE. Executive Oire~'tor I;~esident Date (Seal) Resident Date Apartment Agreement - June 30, 1999 - 25 RESIDENCY AGREEMENT APARTMENT NOTICE OF RIGHT TO RESCIND Date rescission period begins . You may rescind and terminate your Apartment Residency Agreement without penalty Or forfeiture within seven (7) days of the above date. You are not required to move into the Continuing care facility before the expiration of this seven (7) day period. No other agreement or statement you sign shall constitute a waiver of your right to rescind your agreement within this seven (7) day period. To rescind your Apartment Residency Agreement, mail or deliver a signed and dated copy of this notice, or any other dated written notice, letter or telegram, stating your desire to rescind to the following address: CHAPEL POINTE AT CARLISLE. 770 South Hanover Street Carlisle, PA 17013 Attention: Executive Director Not later than midnight of (last day for rescission). Pursuant to this notice, I hereby cancel my Apartment Residency Agreement. Date: PROSPECTIVE RESIDENT'S SIGNATURE Apartment Agreement - June 30, 1999 - 26 4, ?88.50- ;: DATE t'Omt 1 , at Carlisle ' 770 S. HANOVER ST. CARLISLE, PA 17013 (717) 249-1363 'MILDRED E. KELLEY ROOM NUMBER: 015-A Mrs. Sandy Whitcomb 27 Greenfield Drive Carlisle, Pa 17013 For: MI/.DRED E. - DETACH AND RETURN UPPER PORTION W/TH REMITTANCE - TOTAL AMT. DUE ~'., .~69. ~0 Balance Forward: 4,788.50 2/26/2003 CKN PERSONAL C 4,788.50--- 2/04/;E.'¢03 IqAI IR CARE '7.50 SET 2/11/2003 HAIR CARE 7.50 SET E/18/2003 HAIR CARE 7.50 SET/COMB OUT ~/25/2003 HAIR CARE 7.50 SET ~/01--03/31 SEMI-PRIVATE ROOM ~ $169.00 5,239.00 For: MILDRED E. KELLEY O15-A ~ 90 DAYB ' ......... ~ ~ .01Z1 .00 ~ ~ "OIZI I :::30 DAYS : ~--'~"~ i: :i :;~ ;::: CURREN~ ~-~'~ ~ ~ ~-'~'0 I TOTAL DUE ~' 5, 269. 00 7h~el~ at Carlisle 770 S. HANOVER ST. CARLISLE, PA 17013 (717) 249-1363 hi]: L.. C',IR[CD E,, '.'-R O f7 !~1 N!JHB F.].' F~,., :::9' ('?'r-ee',""~fie].c~ T)',"-'j.,~e C;--'~'r.!.isle, Pa .179)13 F'c,',,."~ MIL..DREZ) '.[C.'.~ - DETACH AND RETURN UPPER PORTION WITH REMITTANCE - DATE STATEMENT 3/04/200Z S/0'7/200~ 3/:[ 1/2003 2;/' 18/2002~ 2¢/25/2003 3/2'7 / 2003~; Batar~c.-e FZor.~a.,,.~d: HAZR CARE :-'.~I:-.'.T & COMBOIJT F'HYS l C.: l i:tN .... F'O,C)T ..... P]:Ni<,.iZF~ & F.-~SSC'lfL':, HA! Fi CARE SET.,, CtJT & CC)~iB©U]~ HA .T. R CARE SET & COMBOI.J]' HAt' R CF.~RE SET & COMBOLJ]~ PERSONAL ITENS 1 PR STOCKINGS SE!~II-PR I V;qTE ROOM (HOHE'~ S STOC'I-,.,) ,Z, t._', 6.,,8. 69 !5, 50 7.50 2.50 5.. ~70,, 00 F: o 'r': M I t '] '.~'- ' ..... L I',,::.L) E. KE".LI...Ey TOTAL DUE ~' 10. 448. 19 INTERVENTION REQUESTED BUREAU OF HEARINGS AND APPEALS PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE 2330 VARTAN WAY (SECOND FLOOR) HARRISBURG, PA 17110-9721 APPEAL OF MILDRED E. KELLEY (RESIDENT) FROM NOTICE OF INTENT TO DISCHARGE Ladies and Gentlemen: Mildred E. Kelley, Resident of the skilled nursing care facility at Chapel Pointe of Carlisle, 770 South Hanover Street, Carlisle, PA (hereinafter "Provider"), by her undersigned attorney, Dale F. Shughart, Jr., and her children and Agents under Durable General Power of Attorney, Jack F. Kelley and Sandra L. Whitcomb (copy enclosed), Appeal the attached Notice of Intent to Discharge dated April 10, 2003, mailed to the undersigned attorney on April 16, 2003 and received April 18, 2003, and aver as follows: 1. The Appellant (hereafter "Resident") is Mildred E. Kelley, a Resident of the skilled nursing care facility at Chapel Point of Carlisle. 2. On February 7, 2000 Mildred E. Kelley entered an Apartment Residence Agreement with Chapel Pointe, a copy of which is enclosed. The Resident made the required payment and assumed occupancy of the apartment. 3. The Resident's medical condition deteriorated, and she was admitted to Chapel Pointe's skilled nursing care facility on October 18, 2002 and remains a Resident in that facility. 4. On November 6, 2002 the Resident delivered possession of the apartment to Chapel Pointe and requested a refund of the unamortized entrance fee which, under the terms of the Agreement, is $24,750. This amount is not disputed by Chapel Pointe. 5. In early March 2003 after the Resident's former Apartment had been reoccupied, the Resident's Agent, Sandra L. Whitcomb, inquired regarding refund of the unamortized entrance fee with Linda Amsley of Chapel Pointe. Sandra L. Whitcomb was advised that the refund would not be paid to the Resident unless she left the facility or died. 6. Sandra L. Whitcomb and Jack F. Kelley retained the Resident's undersigned attorney to represent her. After reviewing the Agreement, by a letter dated March 12, 2003 (a copy of which is enclosed) mailed to John Hendrickson, Executive Director of Chapel Pointe, demanded the refund. 7. The undersigned Attorney then received first a verbal response and subsequently a written response dated March 27, 2003, from Michael A. Hynum, Esquire representing Chapel Pointe, a copy of which is enclosed. 8. The undersigned Attorney then responded to the Attorney for Chapel Pointe by letter dated April 1, 2003, a copy of which is enclosed, outlining the position of the Resident. 9. Consistent with the opinion of her undersigned attorney, the Resident and her Agents believe and therefore aver that the provisions of Section 9.4 of the Agreement which purports to permit Chapel Pointe to defer making a refund of the unamortized portion of the entrance fee until after (a) the Resident's death; or (b) her removal from the facility is void as a matter of law, and that she is therefore entitled immediately to her refund. 10. Enclosed are copies of the monthly statements from Chapel Pointe dated March 1, 2003 and April 1, 2003 returned to Chapel Pointe showing the application of credits from the $24,750 apartment refund against the monthly bills. 11. The Resident and her Agents believe and therefore aver that she is in fact making full payment of all charges for her care at Chapel Pointe, by using her credit balance to pay such bills consistent with the advice of her AttOrney. 12. As soon as the credit balance owed by Chapel Pointe to the Resident is reduced to zero, the Resident will resume making payment of the monthly bills; or will, if her non-exempt resources are exhausted prior thereto, apply for Medical Assistance. 13. The Resident and her Agents believe and aver that Section 9.4 of the Agreement between Mildred E. Kelley and Chapel Pointe is void as violative of Federal and State Law and -2- Regulations, and that by virtue of the provisions of Section 15 of the Agreement Chapel Pointe has no authority to rewrite the invalid provision (as was attempted by counsel for Chapel .Pointe). 14. The Resident and her Agents believe and therefore aver that the issue is a matter of contract law to be resolved in the Court of Common Pleas of Cumberland County, Pennsylvania, and have filed a Declaratory Judgment Action, a true and correct copy of which is attached and made a part hereof. 15. The Resident and her Agents believe and aver that applying the credit balance owed to the Resident is in fact full payment of the cost of her care. 16. The Resident hereby requests intervention in the form of an immediate stay of her discharge pending a decision by the Court of Common Pleas of Cumberland County, Pennsylvania in the Declaratory Judgment Action. 17. In the alternative, the Resident requests intervention in the form of an immediate stay of her discharge pending a decision on the matter by the Bureau of Hearings and Appeals, and the scheduling of a prompt hearing before the Bureau of Hearings and Appeals of the Pennsylvania Department of Public Welfare. 18. The Resident and her Agents request the Department of Public Welfare to hold that the Notice of Intent to Discharge is invalid and to cancel it and prevent Resident's discharge. ReSpectfully submitted, By: ale F. Shug~ffir~, J~. Supreme Court I.D. ~9373 35 East High Street, Suite 203 Carlisle, PA 17013 Phone: (717) 241-4311 Fax: (717) 241-4021 Attorney for Appellant VERIFICATION Jack F. Kelley and Sandra L. Whitcomb, Agents, for Mildred E. Kelley under General Durable Power of Attorney, hereby verify that the facts set forth in the foregoing Appeal From Notice of Intent to Discharge are true and correct to the best of their knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications. DATE: April ~ , 2003 -4- PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY. Please list the within matter for the next Argument Court. CAPTION OF CASE (Entire caption must be stated in full) JACK F. KELLEY and SANDRA L. WHITCOMB AS AGENTS FOR MILDRED E. KELLEY UNDER GENERAL POWER OF ATTORNEY (Plaintiffs) VS. ALLIANCE HOME OF CARLISLE t/d/b/a CHAPEL POINTE OF CARLISLE, (Defendant) No. 2003-1894 Civil Term 1. State matter to be argued (i.e. plaintiff's motion for new trail, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to PlaimiWs Complaim 2. Identify counsel who will argue case: (a) for plaimiff.' Address: Dale F. Shughart, Jr. 35 East High Street Suite 203 Carlisle, PA 17013 (b) for defendant: Michael A. Hynum, Esquire 2933 North From Street Harrisburg, PA 17110 I will notify all parties in writing within two days that this case has been listed for argumem. Argument Court Date: July 23, 2003 Dated: May 71(~>3 ~tt om----~y for--~e f~nd~th/' ~ JACK F. KELLEY and SANDRA L. WHITCOMB: IN THE COURT OF COMMON PLEAS AS Agents for Mildred E. Kelley under General : CUMBERLAND COUNTY, PENNSYLVANIA Durable Power of Attorney, : Plaintiffs, VS. ALLIANCE HOME OF CARLISLE t/d/b/a CHAPEL POINTE OF CARLISLE, Defendant. : CIVIL ACTION - LAW : No. 2003-1894 Civil Term : : ACTION FOR DECLARATORY JUDGMENT CERTIFICATION OF SERVICE AND NOW, this 7th day of May, 2003, I, Michael A. Hynum, Esquire, attorney for Defendant, Chapel Pointe of Carlisle, hereby certify that I have served a copy of the Praecipe to List Case for Argument, by mailing a copy of the same by U.S. first class, prepaid mail, addressed as follows: Dale F. Shughart, Jr., Esquire Attorney at Law 35 East High Street (Suite 203) Carlisle, PA 17013 [Attorney for Plaintiffs] CAPOZZI & ASSOCIATES, P.C. Harrisburg, PA 17110-1250 Telephone: [717] 233-4101 [Attorneys for Defendant] JACK F. KELLEY and SANDRA L. WHITCOMB · IN THE COURT OF COMMON PLEAS AS Agents for Mildred E. Kelley under General Durable Power of Attorney, Plaintiffs, VS. ALLIANCE HOME OF CARLISLE t/d/b/a CHAPEL POINTE OF CARLISLE, Defendant. CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 2003-1894 Civil Term ACTION FOR DECLARATORY JUDGMENT NOTICE TO PLEAD TO: JACK F. KELLEY AND SANDRA L. WHITCOMB, Agents, Plaintiffs CIO Dale F. Shughart, Jr., Esquire, Attorney for Plaintiffs You are hereby notified to file a written response to the endorsed Preliminary Objections within twenty (20) days from service hereof or a judgment may be e~red against you. Michael A. Hynum, Es~uir)N, CAPOZZI & ASSOCI/~TES, 'I~.C. 2933 Nodh Front Streb~,,~/) Harrisburg, PA 17110-125"0 Telephone: [717] 233-4101 [Attorney for Chapel Pointe of Carlisle, Defendant] DATE: May 7, 2003 JACK F. KELLEY and SANDRA L. WHITCOMB AS Agents for Mildred E. Kelley under General Durable Power of Attorney, Plaintiffs, VS. ALLIANCE HOME OF CARLISLE t/d/b/a CHAPEL POINTE OF CARLISLE, Defendant. · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION - LAW · No. 2003-1894 Civil Term · ACTION FOR DECLARATORY JUDGMENT PRELIMINARY OBJECTIONS AND NOW COMES DEFENDANT, Chapel Pointe of Carlisle, by its attorneys, pursuant to Pa. R.Civ. P. Rules 1017(a) and 1028, to present Preliminaq! Objections to the Complaint filed in this matter and, in support of same, states: I. Demurrer - PRELIMINARY OBJECTION 1. The Complaint in this matter seeks to have this Honorable Court declare a provision of Section 9.4 of a Residency Agreement ("Agreement") entered into by Mildred E. Kelley and Chapel Pointe of Carlisle (¶¶ 5 and 20 and Request for Relief in Complaint, a copy of the Complaint is attached hereto). 2. The Complaint alleges that Section 9.4 is "void as violative of State and Federal Law and Regulations requiring Residents to effectuate a spend down of their assets, as well as allowing ,other permitted transfers, until their non-exempt financial resources are exhausted, and they qualify for Medical Assistance ...."(¶13 of Complaint) 3. The Complaint cites no specific State or Federal law or regulation that Section 9.4 is alleged to violate. 10. 11. 12. The Complaint does not allege that Mildred E. Kelley is eligible for or applying for Medical Assistance benefit..; pursuant to any State or Federal law or regulation. The Complaint does not allege how Section 9.4 interferes with the ability of Mildred E. Kelley to "spend down". Eligibility for "spend down" under Federal and State laws and regulations related to Medical Assistance is described at 55 Pa. Code §§ 181.13, 181.14. Residents of nursing facilities, such as Mildred E. Kelley are not eligible for "spend down" under 55 Pa. Code § 181.13, but are eligible for "spend down" if they meet the condition..; of 55 Pa. Code § 181.14. The Complaint does not allege that Mildred E. Kelley meets any of the conditions for "spend down" under 55 Pa. Code § 181.14. The Medical Assistance Program does not pay for or regulate residential services or residential services agreements such as those involved in this matter. Section 9.4 does not prevent Mildred E. JK~elley from spending down her available assets in order to qualify for Medical Assistance. Section 9.4 prevents Mildred E. Kelley from accessing any accrued refund amount under the Agreement until and unless the conditions for doing so established by the Agreement exist. Section 9.4 prevents Mildred E. Kelley from using any accrued refund amount to pay for her care at Chapel Pointe's Health Center until and unless Chapel Pointe exercises its rights under Section 16 (Acts of Forbearance) of the Agreement. 3 13. 14. 15. 16. 17. 18. 19. 20. The Complaint, at ¶14, concedes that Chapel Pointe has advised Plaintiffs that Chapel Pointe will forbear the enforcement of Section 9.4 to permit any accrued refund to be used to pay for the care of Mildred E. Kelley at Chapel Pointe's Health Center when and if her assets reach a point that require the use of such refund to pay for her care. The Complaint does not allege that the assets of Mildred E. Kelley have reached a point that require the use of any refund amount to pay for her care. The Complaint does not allege that Mild~'ed E. Kelley does not have sufficient other available assets to make payment to Chapel Pointe at Carlisle for her care in the Health Center'. The dispute involved in the Complaint is about whether Mildred E. Kelley can require Chapel Pointe to refund an a~mount that is not currently due under the express terms of their Agreement so that those funds can be used to pay for her expenses before she uses any of her other available funds to pay for her expenses. There is no Federal or State law or regulation that requires Chapel Pointe to release funds that it holds under an ex:press provision of a written agreement relating to residential services for Mildred E. Kelley in order to permit a party to that contract to use those funds prior to using her own other available funds to pay for her care in a nursing facility. The Complaint alleges no prejudice to Mildred E. Kelley other than requiring her to use her other available funds to pay for her care prior to the funds that are restricted by Section 9.4 of the Agreement. The terms of the Agreement are plain, express and unambiguous. The terms of the Agreement are binding on the parties. 4 21. Since the Complaint does not and cannot state a cause of action for the violation of any State or Federal law or regulation relating to eligibility for Medical Assistance and since the Agreement is not preventing Mildred E. Kelley from accessing any accrued refund amount after utilizing her other available assets to pay for the cost of her care at the Health Center, the Complaint states no cause of action on which relief can be granted. WHEREFORE, Chapel Pointe at Carlisle requests this Honorable Court to SUSTAIN this Preliminary Objection and dismiss the Complaint. II. Lack of Jurisdiction - PRELIMINARY OBJECTION 22. 23. 24. 25. The Complaint, at ~19, pleads that Plaintiffs are seeking relief before the Bureau of Hearings and Appeals of the Pennsylvania Department of Public Welfare (hereinafter, "DPW"). DPW is required by federal Medicaid law (42 U.S.C. § 1396r(e)(3)) to provide a system for appeals by nursing 'l=acility residents to discharges from Medicaid-participating nursing facilities, such as Chapel Pointe's Health Center, including for reasons of nonpayment, which, pursuant to 42 U.S.C. § 1396r(c)(2)(A)(v), is an acceptable basis for discharge. DPW has established the system for resident charge appeals, which is described at 55 Pa. Code, Chapter 1181, Appendix N. See: Grkman v. DPW, 637 A.2d 761 (Pa. Cmwlth. 1994). Pursuant to 1 Pa. Code § 35.19, relating ~lo declaratory orders, DPW may provide declaratory relief to Plaintiffs as t¢) whether their use of credits on accrued but undue refund amounts must be accepted as credits against payment due to Chapel Pointe's Health Center for the care of Mildred E. 5 Kelley. See: Pennsylvania Pharmacists Association v. DPW, 733 A.2d 666 (Pa. Cmwlth. 1999); compare: Citizens Ambulance Services, Inc. v. Gateway Health Plan, 2002 Pa. Super. ;_~78, 806 A.2d 443 (2002) (DPW, the State Medicaid Agency does not have exclusive or primary jurisdiction over contract dispute where it did not have the authority to order compliance). 26. DPW is the single state agency for the administration of the Pennsylvania Medical Assistance Program (62 P.S. § ;;)01). 27. This Honorable Court may refuse jurisdiction over a matter under the Declaratory Judgment Act where there is another appropriate and available remedy. See: Lakeland Joint School District Authority v. School District of Scott Tp., 414 Pa. 451,200 A.2d 748 (1964); Commonwealth, Department of General Services v. Frank Briscoe Co., Inn, 502 Pa. 449, 466 A.2d 1336 (1983); Cherry v. City of Philadelphia, 547 Pa. 679, 692 A.2d 1082 (1997). WHEREFORE, Chapel Pointe at Carlisle requests this Honorable Court to SUSTAIN this Preliminary Objection and dismiss the Complaint. A proposed form of Order and Brief in Support of these Preliminary Objections is attached. DATE: May 7, 2003 Respectfully submitted, Michael A. I--ly~um,~¢s~l,uire Attorney I.D. No. 851~92'",~ 2933 North Front Stre~ Harrisburg, IPA 17110-1250 Telephone: [717] 233-4101 [Attorneys for Defendant] JACK f. KELLEY and SANDRA L. WHITCOMB · IN THE COURT OF COMMON PLEAS AS Agents for Mildred E. Kelley under General · CUMBERLAND COUNTY, PENNSYLVANIA Durable Power of Attorney, Plaintiffs, VS. ALLIANCE HOME OF CARLISLE t/d/b/a CHAPEL POINTE OF CARLISLE, Defendant· · CIVIL ACTION - LAW · No. 2003-1894 Civil Term : · ACTION FOR DECLARATORY JUDGMENT ORDER AND NOW, this day of ,2003, upon the Preliminary Objections filed by Defendant, Chapel Pointe of Carlisle and, after consideration of the response thereto and the arguments of the parties, finding good cause therein, the Preliminary Objection in the form of a demurrer is SUSTAINED and the complaint filed in this matter is DISMISSED. 7 CERTIFICATION OF SERVICE AND NOW, this 7th day of May, 2003, I, Michael A. Hynum, Esquire, attorney for Defendant, Chapel Pointe of Carlisle, hereby certify that I haw.~ served copies of the foregoing Notice to Plea, Preliminary Objections, Form of Order, and Brief in Support, including the attachments, by mailing a copy of the same by U.S. first class, prepaid mail, addressed as follows: Dale F. Shughart, Jr., Esquire Attorney at Law 35 East High Street (Suite 203) Carlisle, PA 17013 [Attorney for Plaintiffs] iAPOZZI &. ASSOCIATES. P.C. ~ichael A. H Attorney I.D. No. 2933 North Front S-'"1'2et5 Harrisburg, PA 17110 0 Telephone: [717] 233-4101 [Attorneys lbr Defendant] 15 SHERIFF'S RETURN - REGULAR CASE NO: 2003-01894 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KELLEY JACK F ET AL VS ALLIANCE HOME OF CARLISLE TDBA RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ATJ,IANCE HOME OF CARLISLE TDBA CHAPEL POINTE the DEFENDANT , at 1508:00 HOURS, on the 24th day of April at 770 SOUTH HANOVER STREET CARLISLE, PA 17013 by handing to MARY LOU BEGLEY, ADMINISTRATOR ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE , 2003 together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18 00 Service 3 . 45 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 31.45 Sworn and Subscribed to before me this q ~ day of Prothonotary 04/25/2003 DALE SHUGHART JR By: Deputy Sheriff JACK F. KELLEY and SANDRA L. WHITCOMB as Agents for Mildred E. Kelley Under General Durable Power of Attorney Plaintiff vs. ALLIANCE HOME OF CARLISLE t/d/b/a CHAPEL POINTE OF CARLISLE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 2003 - 1894 Civil Term ACTION FOR DECLARATORY JUDGMENT PRAECIPE TO DISCONTINUE Dear Sir: Please mark the above captioned action discontinued. TO: Curtis R. Long, Date: July 7, 2003 Prothonotary ~ Dale F. ' Supreme r 373 35 East ' Suite Carlisle, PA 17013 203 cc: Michael R. Hynum, Esquire Attorney for Alliance Home of Carlisle t/d/b/a Chapel Pointe of Carlisle