affidavit of merit attached - eadie hill trial lawyers...2019/01/24 · an affidavit of merit is...

IN THE COURT OF COMMON PLEAS CUYAHOGA COUNIY, OHIO

THE ESTATE OF PATRICK GALLAGHER, by and through Suzanne M. Ring, Estate Administrator,

Plaintiff,

vs.

BEACHWOOD COMMONS ASSISTED LMNG,LTD 3995 Green Rd. Beachwood, OH 44122

and

LIFESERVICES MANAGEMENT CORP. c/ o Registered Agent Mentor Equity LLC 7685 Lakeshore Blvd. Mentor, OH 44060

and

MENTOR EQUITY, LLC c/ o Registered Agent Salida Woods Assisted Living, Ltd 7685 Lakeshore Blvd Mentor, OH 44060

and

BEACHWOOD EQUITY, LLC c/ o Rene Owens 399 Bishop Rd. Highland Heights, OH 44113

) CASENO. ) ) JUDGE ) ) ) COMPLAINT ) With Jury Demand ) ) Affidavit of Merit Attached ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

______ D_e_fe_n_d_a_n_ts_. ______ )

Now comes Plaintiff, the Estate of Patrick Gallagher, through Suzanne M. Ring, its

duly appointed Administrator, and for Plaintiffs Complaint against the above-named

Defendants states and avers upon information and belief as follows:

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INTRODUCTION

1. Patrick Gallagher died on January 25, 2018. He was 71 years old.

2. Patrick Gallagher had a history of dementia, incontinence, and unsteady

gate making him a high fall risk. All of this information was known by Defendants when

he entered their assisted living facility, called Beachwood Common and located at 3995

Green Road, Beachwood, OH 44122. Patrick Gallagher died under the care of Defendants

who were ethically, morally, and legally obligated to protect him.

3. In the weeks leading up to his death, Patrick demonstrated numerous sign

and symptoms of malnutrition, dehydration, and infection increasing the likelihood he

would fall and increasing the need for Defendants to protect him.

4. Patrick Gallagher fell on January 23, 2018 suffering a severe head injury.

Patrick Gallagher died of that head injury three days later, on January 25, 2018.

5. The Cuyahoga County Medical Examiner's Office certified the official and

legal cause of death as "blunt impact to the head with subdural hematoma."

6. This is a recklessness, medical negligence, and wrongful death action

involving Patrick Gallagher' care at Beachwood Commons regarding Defendants' action

and inaction leading to Patrick's severe injuries and death.

7. Plaintiff requests a trial by jury.

8. An Affidavit of Merit is attached as Exhibit 1.

9. A copy of the Resident Agreement is attached as Exhibit 2.

10. Plaintiff seeks punitive damages in an amount necessary to punish the

above-named Defendants and deter Defendants from engaging in similar conduct in the

future.

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11. Plaintiff also requests attorneys' fees and the costs of this litigation.

12. Suzanne M. Ring is the duly appointed Executor of the Estate of Patrick

Gallagher.

13. Plaintiff brings this action on behalf of the Estate of Patrick Gallagher, the

next of kin of Patrick Gallagher, and anyone else entitled to compensation for the harms

and losses sustained as the result of Defendants' conduct described herein or discovered

during the course of the litigation.

DEFENDANTS

14. Defendant Beachwood Commons Assisted Living, Ltd. is an Ohio for-profit

corporation that holds itself out to the public as a residential care facility/ assisted living

facility and provider of medical, nursing, and homecare, including but not limited to,

rehabilitation, skilled nursing, and home health care, through its agents, operatives,

affiliates, and / or employees. Defendant Beachwood Commons Assisted Living, Ltd.

operates an assisted living facility, also called a residential care facility, called Beachwood

Commons.

15. Defendant LifeServices Management Corp. is a foreign for-profit

corporation that holds itself out to the public as a residential care facility/ assisted living

facility and provider of medical, nursing, and homecare, including but not limited to,

rehabilitation, skilled nursing, and home health care, through its agents, operatives,

affiliates, and / or employees. Defendant LifeServices Management Corp. operates an

assisted living facility, also called a residential care facility, called Beachwood Commons.

16. Defendant Beachwood Equity, LLC is a foreign for-profit corporation that

holds itself out to the public as a residential care facility / assisted living facility and

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provider of medical, nursing, and homecare, including but not limited to, rehabilitation,

skilled nursing, and home health care, through its agents, operatives, affiliates, and / or

employees. Defendant Beachwood Equity, LLC operates an assisted living facility, also

called a residential care facility, called Beachwood Commons.

17. Defendant Mentor Equity, LLC is a foreign for-profit corporation that holds

itself out to the public as a residential care facility / assisted living facility and provider of

medical, nursing, and homecare, including but not limited to, rehabilitation, skilled

nursing, and home health care, through its agents, operatives, affiliates, and / or

employees. Defendant Mentor Equity, LLC operates an assisted living facility, also called

a residential care facility, called Beachwood Commons.

18. Patrick Gallagher and his family looked to the Defendants for care based

upon their representations.

19. The Defendants are vicariously liable for the negligent actions of their

employees and agents (respondeat superior and agency liability) and/ or independent

contractors (Clark v. Southview agency by estoppel).

JURISDICTION AND VENUE

20. This Court has Jurisdiction over the Defendants because, among other

things, all Defendants do, and all times relevant did, reside or have their domicile in the

State of Ohio, purposefully avail themselves of the laws of the state of Ohio, and / or

commit tortious acts within the state of Ohio.

21. Venue is proper in this County under Civil Rule 3(B) because, among other

reasons: (a) Defendants reside, domicile, carry on their principal place of business, or

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practice medicine/ nursing, in this County; and /or (b) part of the claim for relief arose

in this County, in which county Patrick Gallagher was injured and died.

COMMON FACTS

22. Defendants are business enterprises that provide residential care, skilled

nursing, and myriad supplemental services on a short and long-term basis in exchange

for payment.

23. Patrick Gallagher paid approximately $6,500 per month for Defendants'

medical, nursing, and related services.

24. For long-term care facilities, including nursing homes and assisted living

facilities, generally, the largest individual revenue source is residents (filling beds), and

the largest individual expense is the cost of employing nursing staff to provide care to

those residents. This creates a financial incentive to take on more residents with greater

care needs than the nursing staff can properly care for, a regulatory violation regarding

staffing levels.

25. The Defendants jointly employ and control the nursing staff at Beachwood

Commons.

26. The Defendants jointly exercise actual control over Beachwood Commons

management and operations to maximize profits, including control over facility-level:

a. Policies and procedures, including regarding resident care;

b. Finances, including obtaining credit and loans, guaranteeing loans (both at the corporate and individual facility level), maintaining funds and banking, obtaining, owning, and leasing facility land and buildings, and capital expenditures.

c. Budgeting, including controlling the amount of funds available for staffing facilities;

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d. Personnel management, including hiring and firing, or having authority to hire and fire, the supervisory and management personnel in each facility;

e. Supervision of management, care providers, and staff in each facility, including compliance with federal and state regulations;

f. Employment, such as setting pay scales, shifts, and time and vacation policies;

g. Systems for training, monitoring, and supervising staff;

h. Medical record systems and management;

1. Financial control systems, including budgeting and payment processing;

J. Marketing, including setting the image and expectations residents and their family should expect at Liberty, and even the name of the facility;

k. Reporting procedures, including reporting to Medicare as to individual resident care and facility-wide issues.

27. As the result of this control, the Defendants make decisions that affect the

day-to-day care of Beachwood Commons' residents, such as the resources available for

providing nursing staff and care to residents like Patrick Gallagher, meaning it is

responsible for the foreseeable harm that results from careless decisions while voluntarily

exercising that control.

Defendants' Obligations to Patrick Gallagher as Operator of a Residential Care Facility

28. Beachwood Commons is a Residential Care Facility (also known as an

assisted living facility) pursuant to Chapter 3721 of the Ohio Revised Code and Section

3701-17-50 et seq. of the Ohio Administrative Code, and subject to those state laws and

regulations.

29. During his stay, Patrick Gallagher was a "resident" as defined by Ohio

Revised Code section 3721.10, and the Facility was a "home," as defined by Ohio Revised

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Code section 3721.01, affording Patrick Gallagher the Resident Rights in Revised Code

section 3721.13, including the right to have Defendant provide:

a. "a safe ... living environment"; and

b. "adequate and appropriate medical treatment and nursing care and to other ancillary services that comprise necessary and appropriate care consistent with the program for which the resident contracted";

30. Beachwood Commons is required under the Ohio Administrative Code to

ensure an initial written health assessment and periodic assessments thereafter were

completed for Patrick Gallagher, to ensure that all components of the assessments were

completed, and that Patrick Gallagher did not require accommodations or services

beyond those that the residential care facility provides.

31. Beachwood Commons was required under the Ohio Administrative Code to

enter into a Residential Care Agreement with Patrick Gallagher meeting certain

requirements, and fulfil those requirements.

32. Beachwood Commons was obligated to act reasonably in setting staffing

levels and ensuring "sufficient staffing" to meet the residents' needs, including providing

sufficient funding to have adequate staff to meet resident care and assistance needs.

Systemic Understaffing and Patrick Gallagher's Care

33. Defendants failed to ensure, through their operational, budgetary,

consultation and managerial decisions and actions, that Beachwood Commons was

sufficiently staffed to meet the individual needs of Patrick Gallagher.

34. Defendants engaged in a systemic practice to understaff the Beachwood

Commons facility to maximize profits at the expense of its residents' care.

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35. This lack of sufficient staff directly resulted in Patrick Gallagher not

receiving basic and necessary services to prevent, among other things, neglect leading to

injury and death.

The Defendants Fail to Meet Their Legal and Contractual Duties to Patrick Gallagher

36. Patrick Gallagher was a resident of Beachwood Commons.

37. Defendants agreed to provide care and support for Patrick Gallagher in

exchange for monetary payment.

38. The Defendants represented themselves as a memory care facility catering

to residents with memory disorders caused by dementia, Alzheimer's disease, traumatic

brain injury, and other conditions who can no longer care for themselves in an effort to

solicit consumers to place their loved ones in their care.

39. At the time he entered Beachwood Commons, Defendants were aware that

Patrick Gallagher had a memory disorder called dementia, was incontinent, and was had

difficulty walking requiring that he use an assistive device called a walker and needed

assistance with transfers and mobility.

40. As a result of these conditions, Defendants were on notice that Patrick

Gallagher was a high fall risk.

41. In January 2018, in addition to the above-mentioned medical conditions,

Patrick Gallagher began exhibiting signs and symptoms consistent with an infection.

42. Beachwood Commons improperly assessed Patrick Gallagher's needs and

its ability to meet those needs, and retained his as a resident when they could not meet

those needs.

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43. Among other conditions, Patrick Gallagher had a memory care disorder,

physical limitations, and was unable to advocate for his own safety. Like many memory

care patients, Patrick Gallagher relied on Defendants for safety and protection.

44. Defendants failed to provide periodic assessments of Patrick Gallagher as

required by law and its resident agreement resulting in Patrick Gallagher not receiving

necessary care and treatment.

45. Patrick Gallagher suffered numerous falls as he became weakened by

dehydration, malnutrition, and infection and as a result of his underlying condition. This

was the direct result of Defendants' failure to assess and reassess Patrick Gallagher and

appropriately staff the facility with competent staff.

46. Patrick Gallagher suffered a deadly fall on January 23, 2018-a fall that

caused a severe head injury called a subdural hematoma (where blood pools between

lining of the brain called the "dura" and the brain tissue itself creating increasing pressure

and eventual death).

47. Patrick Gallagher died on January 25, 2018. The Cuyahoga County Medical

Examiner's Office certified the legal and official cause of death as the blunt impact from

the fall.

48. Defendants failed to ensure a safe environment for its residents as required

bylaw.

49. As a direct and proximate result of the action and inaction of Defendants,

Patrick Gallagher suffered conscious pain and suffering, incurred medical and medical

related expenses, and death.

FIRST CAUSE OF ACTION (MEDICAL NEGLIGENCE / RECKLESSNESS)

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50. Plaintiff incorporates all other paragraphs of this Complaint as if fully

rewritten herein.

51. Patrick Gallagher and Defendants had a special relationship where he

depended on the Defendants, and their respective nursing, medical, and non-medical

staff, for medical, nursing, and non-nursing care, treatment, evaluation, assistance, and

for his general safety.

52. The Defendants, including their medical, nursing, and non-medical staff,

failed to provide proper care and treatment to Patrick Gallagher, which they knew or

should have known he required, resulting in his injury and death.

53. The Defendants' failure to provide proper care and treatment included, but

is not limited to:

a. Choosing not to appropriately assess and reassess Patrick Gallagher to ensure that he was an appropriate candidate for assisted living;

b. Choosing not to provide appropriate care to Patrick Gallagher after he moved to the Assisted Living Facility in November 2017;

c. Failing to implement appropriate interventions to monitor and the supervise residents to protect their safety;

d. Failing to ensure the rights and safety of its residents, including Patrick Gallagher, as required by Ohio and federal regulations;

e. Failing to appropriately train its staff on how to assess and reassess residents, implement appropriate safety interventions, and sufficiently staff the facility to ensure the rights and safety of its residents.

f. Choosing to provide too few, and / or underqualified nursing and non-nursing staff members for the resident needs at the facility to protect and provide adequate care to residents like Patrick Gallagher;

g. Choosing to not provide accurate, adequate, or timely information to Patrick Gallagher's family;

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h. Choosing to violate state and federal regulations governing care and staffing levels in facilities by which residents like Patrick Gallagher are a member of the class of persons intended to be protected from injuries like he suffered; and

1. Such other acts or omissions described in this Complaint or discovered during litigation.

54. The Defendants and their nursing and non-nursing staff provided care to

Patrick Gallagher that fell below the standard of care expected of long-term care

organizations, including residential care facilities, under the same or similar

circumstances.

55. As a direct and proximate result of the negligence described above, Patrick

Gallagher sustained permanent injury and loss including, but not limited to, conscious

pain, suffering, and disability and these physical injuries and his untimely and wrongful

death.

WHEREFORE, Plaintiff demands judgment against the Defendants, jointly, in an

amount more than Twenty-Five Thousand Dollars ($25,000.00), for Patrick Gallagher's

conscious pain and suffering, medical expenses, loss of enjoyment, together with costs of

suit, attorney's fees and expenses, punitive and exemplary damages, and any other relief

to which the decedent may be entitled to and / or that the court finds is appropriate and

/ or equitable.

SECOND CAUSE OF ACTION {WRONGFUL DEATH)


rewritten herein.

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57. Plaintiff brings this Cause of Action pursuant to Ohio's Wrongful Death

Statute for the benefit of Patrick Gallagher's heirs and next of kin who have suffered loss

and damage due to Patrick Gallagher's wrongful and untimely death

58. As a direct and proximate result of the unreasonable conduct described

above, Patrick Gallagher sustained physical injuries that caused his untimely and

wrongful death.

59. Patrick Gallagher's next-of-kin, including his children and grandchildren

suffered damages as set forth in the Ohio Wrongful Death statute, including mental

anguish and grief, medical and funeral expenses, and loss of decedent's support, services,

society and companionship.


amount more than Twenty-Five Thousand Dollars ($25,000.00) to compensate the

decedent's next of kin and heirs at law, together with costs of suit, attorney's fees and

expenses, exemplary damages, and any other relief the court finds is appropriate and / or

equitable.

THIRD CAUSE OF ACTION {NURSING HOME RESIDENT RIGHTS VIOLATION R.C. 3721.13)


rewritten herein.

61. Defendants, directly or through their employees or agents, violated Patrick

Gallagher's rights as a resident of the Defendants' facilities, as enumerated in R.C.

3721.13, including, but not limited to, the right to adequate and appropriate medical

treatment and nursing care.

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62. These violations constitute negligence per se and give rise to a statutory

cause of action.

63. As a direct and proximate result of Defendants' violations of R.C. 3721.13,

Patrick Gallagher endured conscious pain and suffering and disability, incurred medical

expenses, suffered his untimely death, and was otherwise harmed.


amount in excess of Twenty-Five Thousand Dollars ($25,000.00), together with costs of


to which the court finds is appropriate and / or equitable.

FOURTH CAUSE OF ACTION (FRAUD)


rewritten herein.

92. Defendants concealed facts concerning their staffing levels, pay, and the

amount of care they were actually capable of providing at Beachwood Commons.

93. Not only did Defendants conceal this information, they publicly and

privately represented that they provide exceptional memory care services in an effort to

induce the family of Patrick Gallagher and other potential customers to place their loved

ones in their care and custody.

94. These inducements were made falsely, with knowledge of their falsity, or

with such utter disregard and recklessness as to whether they were true or false that

knowledge may be inferred with the intent of misleading Patrick Gallagher's family and

other potential customer's into placing their loved ones in the care and custody of

Defendants.

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95. Patrick Gallagher and family members of other potential customers

reasonably relied on Defendants' representations and concealments regarding the degree

of care they provide.

96. The result of these inducements and concealments was that Patrick

Gallagher's family, and the family of numerous other residents, allowed their loved one

to be placed in Defendants' facility.

97. As a direct and proximate result of Defendants' actions, representations,

and concealments, Patrick Gallagher suffered conscious pain and suffering, assault, and

death.

98. As a direct and proximate result of Defendants' action, representations, and

concealments, Patrick Gallagher's next-of-kin have experienced harms and losses as a

result of his death, including those damages set forth in Ohio's wrongful death statute-

R.C. 2125.02.


amount in excess of Twenty-Five Thousand Dollars ($25,000.00), together with costs of


to which the court finds is appropriate and/ or equitable.

SIXTH CAUSE OF ACTION (BREACH OF CONTRACT)


rewritten herein.

65. Defendants, directly or through their employees or agents, violated their

contractual obligations in the Residential Agreement, a copy of which is attached as

Exhibit 2.

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66. As a direct and proximate result of those violations, Plaintiff's decedent

suffered harm.

WHEREFORE, Plaintiff demands judgment against Defendants in an amount

more than Twenty-Five Thousand Dollars ($25,000.00), together with costs of suit,

attorney's fees and expenses, punitive and exemplary damages, and any other relief to

which the court finds is appropriate and/ or equitable.

A TRIAL BY JURY IS HEREBY DEMANDED.

/sf Michael A. Hill MICHAELA. HILL (0088130) WILLIAM B. EADIE (0085627) EADIE HILL TRIAL LA WYERS 3100 East 45th St., Suite 400 Cleveland, Ohio 44127 (216) 777-8856 Co) I (216) 216-716-2502 CO [email protected] [email protected] https: //www.eadiehill.com

Counselfor Plaintiff

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mailto:[email protected]

mailto:[email protected]

https://www.eadiehill.com

ST ATE OF OHIO

CUYAHOGA COUNTY

) ) ) ) )

AFFIDAVIT OF MERIT

Affiant MARK SHOAG, M.D., having been first duly sworn, states:

l. I am an adult, with no known disability preventing my truthful testimony, and have personal knowledge of the matters contained within this affidavit.

2. I am a full-time practicing physician in the fields of Geriatric and Internal Medicine, licensed in the state of Ohio, board certified in Internal Medicine. and a medical director of a long-term acute care hospital, spending more than 50% of my professional time providing direct patient care.

3. Through my specialized knowledge, skill, training, experience, and education, I am familiar with the standard of care applicable to the medical and nursing care and treatment that was provided to Patrick Gallagher in January 2018 while a resident of Beachwood Commons Assisted Living.

4. I have reviewed all medical records reasonably available to the Estate of Patrick Gallagher concerning the allegations of negligence causing his death.

5. To a reasonable degree of medical probability, it is my opinion that the medical and nursing care and treatment provided to Patrick Gallagher deviated from the established standard of care and the breach caused injury to Patrick Gallagher, including his fall, subdural hematoma. and death.

FURTHER AFFJAN-r;;:::_;~~ HOAG,M.D.,

SWORN TO BEFORE ME and subscribed in my presence this~ day of January 2019.

NOT ARY PUBLIC


Lif eServices Assisted Living BEACHWOOD COMMONS ASSISTED LIVING RESIDENCY AGREEMENT

THIS AGREEMENT ("Agreement") is made effective as of the ___ day of __________ , 20__ by and between Beachwood Commons (hereinafter referred to as "the Community", a Limited Partnership, formed under the laws of the Commonwealth of Pennsylvania, and _____________________ _ (hereinafter referred to as "Resident").

WHEREAS, the Community, located in Beachwood, Ohio is an assisted living community consistent with licensure requirements as a Residential Care Facility (RCF) under the applicable laws and regulations of the State of Ohio which are available for Resident review upon request; and

WHEREAS, the Resident is making application for residency to an apartment within the Community under the terms set forth herein; and

WHEREAS, the Resident's personal physician has formally determined that the Resident is appropriate for residency in a licensed Residential Care Facility as documented on the Community's Medical Evaluation form; and

WHEREAS, the Community has further determined through the Ohio Residential Care Facilities regulations and the Community's Resident Care Review that the Resident is appropriate for residency in an assisted living apartment; and

WHEREAS, all of the terms and conditions of residency have been fully agreed upon between the parties hereto;

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows:

I. HOUSING A. Apartment Selected. The Resident has selected and will reside in Apartment No. __ ,

a _____________ style apartment (the "Apartment"), in consideration of the fees, charges and covenants set forth in this Agreement. The Community agrees that, subject to the provisions of this Agreement, the Resident shall have the right to occupy the Apartment Home during the Term of this Agreement as long as the Resident's health status complies with the assistance capable of being provided by the Community and the Resident meets all other terms and conditions outlined in this Agreement.

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B. Use and Occupancy of Apartments. The Community shall provide the Resident with use and occupancy of the Apartment Home for residential purposes and related services only. A maximum of two persons may occupy the Apartment Home if prior written approval by the Community is first obtained, the persons are related parties, and both persons agree to share the Apartment Home. The Monthly Fee as described in Section V of this Agreement does not reflect any additional Monthly Fee to be owed to the Community for each additional person, such as spouse, or other relative, occupying the Apartment Home. Such person shall be required to enter into a separate agreement with the Community under which they agree to (i) pay an incremental rate for Hospitality and/or Personal Care Services as listed in the current Schedule of Fees and Charges Exhibit B, (ii) pay the Monthly Fee for the Apartment upon the death of, or termination of the Residency Agreement by the primary occupant, (iii) immediately execute and deliver to the Community Director their acceptance of the schedule of charges for the particular apartment occupied, and (iv) secure the Residency Agreement with the payment of a security deposit as described in Section V below.

C. No Tenancy Interest or Management Rights. This Agreement gives the Resident the right to live in the Community and utilize the Apartment Home, the designated Commons areas, and prescribed services and care as outlined in this Agreement. However, it does not give the Resident the rights of a "tenant" as Ohio law defines that term. The Community reserves the sole right to provide management of the Community in the best interests of all Residents and reserves the right to manage or make decisions concerning the residency, terms of initial residency or termination of residency, of any and all Residents consistent with Ohio Residential Care Facility regulations, Ohio Law governing Residential Care Facilities, and the business interests of the Community.

D. Furnishings. The Apartment Home shall be furnished by the Community with a refrigerator, microwave, carpeting, shower curtain and mini-blinds and shall remain the property of the Community. The Resident shall have the right, and typically choose, to provide all other fixtures, appliances and furniture. The Community must approve all additional fixtures and appliances prior to being placed in the Apartment Home and the same shall be the responsibility of the Resident to maintain and insure. The Resident shall bring the following furnishings for their Apartment Home: a bed equipped with springs and a clean flame resistant mattress or clean mattress with a flame resistant mattress cover; bed linens which shall include at least two sheets, bed pillow(s) and pillow case(s), a bedspread, and one blanket in good condition; a water proof material to cover mattress if the Resident is incontinent; a bedside table; personal reading lamp; dresser; waste basket with liners; a chair with a padded back and seat and arms for lateral support; bath linens which shall include at least two full towels, two face towels, and two washcloths; and basic toiletry items and paper products. If the Resident chooses not to provide furnishings, the Community shall provide furnishings for an additional expense. Toiletry items and paper products are the responsibility of the Resident. Any physical changes to the Apartment Home identified as the walls, ceiling, floor, carpeting, vinyl, ceramic tile, light fixtures, cabinetry, plumbing, heating, electrical and equipped appliances require prior written approval of the Community, as provided exclusively by the Community Director, and shall be made at Resident's expense. If Resident obtains such approval, Resident or his/her estate shall be responsible for restoring the original decor when Resident vacates the Apartment Home, unless the Community specifically exempts Resident from this requirement. The Community shall assist the Resident in

Page 2 of 22

obtaining furnishings for use, if necessary, for an additional charge. The Community also recommends to the Resident that the Resident independently obtain renter's insurance or other insurance the Resident deems necessary for the protection of their possessions and property. THE RESIDENT HEREBY RELEASES THE COMMUNITY FROM ANY AND ALL RESPONSIBILITY FOR THE INSURANCE OF OR DAMAGE OR LOSS TO RESIDENT'S PERSONAL PROPERTY ON THE PREMISES.

E. Keys. The Community shall provide three (3) keys to the Resident. One key shall provide access to the main entrance of the Community and the Resident's Apartment Home. The second shall access the Apartment Home's mailbox. The third shall secure a cabinet drawer in the Resident's Apartment Home. The Resident is responsible to maintain the keys in their possession and is required to report any lost key immediately. The Resident is responsible to return the keys to the Community at vacancy or pay a replacement fee to the Community. The Resident is not to copy keys without the prior approval of the Community Director.

F. Private Locks or Locking Devices. For the Resident's safety in cases of emergency, the Resident shall not use any private locks or locking devices other than those provided by the Community with the Apartment Home.

G. The Community's Right o{Entry. The Community respects and protects the Resident's right to privacy in their Apartment Home and the Resident's private life as part of the Community's service and care to the Resident. Every reasonable effort shall be made to schedule, at mutually convenient times, the Community's representative's entry into a Resident's Apartment Home for routine and non-routine events. The Community representatives, prior to entry, shall be trained to knock on the Resident's Apartment Home door, announce themselves, and request permission to enter for a stated purpose unless the Resident expresses an interest in an alternate approach as evidenced in the Resident's Service Plan. The Community shall have the right to enter the Apartment Home at any time to provide personal care services, respond to suspected medical emergencies, for inspections, for pest control, to make repairs or alterations, to clean the Apartment Home, and for any other lawful purpose. The Community shall also provide access to the Apartment Home to government regulatory agencies as required by the State of Ohio.

H. Maintenance. The Community shall provide service and repairs, at the Community's expense, for all electrical, mechanical, and plumbing equipment servicing the Apartment Home, including the furnishings provided by the Community described above, except for repairs necessitated by the Resident's negligent or willful acts. The Community shall clean and maintain all hallways and Commons areas, both inside and outside. The Community shall provide all grounds maintenance. The Resident shall use the parts of the premises in a reasonable manner considering the purposes for which they were designed and intended. The Resident shall allow for all areas of the premises under control of the Resident in every part to be kept clean, sanitary and free from all accumulations of debris, filth, rubbish and garbage as the condition of the premises permits. The Resident shall allow for all garbage, rubbish and other waste to be disposed of in a clean and safe manner. Damages, which result from improper disposal of waste materials and charges to repair same, shall be charged to the Resident. The Resident shall use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating,


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air conditioning, and other facilities and appliances on the premises. The Resident shall not destroy, deface, damage, impair or remove any part of the premises or knowingly permit any person to do so. Damages, which result from improper use of premises and/or contents, shall be charged to the Resident.

I. Utilities. The Community, at the Community's expense, shall furnish water, electricity, heat, air-conditioning, trash collection, satellite television, and telephone service including unlimited domestic long-distance. A telephone is also available to residents at a location in the Commons area as required by Ohio Residential Care Facility regulations. Enhanced television and Internet services can be arranged, if desired by the Resident, through the Community service provider to the Resident at an additional expense.

J. Use of Common Space. The Resident shall have the ability to use the Commons area of the Community, which include all lounges, living room areas, dining room, private dining room, activities room, resident laundry room, and any other areas of the Community formally designated as Commons area. The Resident shall behave in a manner and require other persons permitted on the premises with the Resident's and the Community's consent to behave in a manner that will not disturb their neighbors' peaceful enjoyment or the operation of the Community.

K. Resident Storage. Storage of personal items shall be provided within the Apartment Home. Storage of the Resident's ambulation devices, such as wheelchairs and electric scooters, must be kept in the Apartment Home and may not be stored or placed in hallways or common areas when not in use.

L. Parking. The Community shall provide as available, one reserved, non-covered parking place for one automobile owned and operated by the Resident as designated by the Community on the Community's grounds. The Community accepts no responsibility for the security and use of the vehicle.

M. Pets. The Community shall allow pets as approved in advance by the Community and in compliance with the Community Pet Policy Agreement. The Community Pet Policy Agreement shall be an Addendum to this Agreement and shall include an additional deposit as determined by the Community.

N. Smoking. Residents are permitted to smoke in the indoor and outdoor areas formally designated by the Community as available for smoking. The Resident's Service Plan shall identify assistance needed regarding smoking and the Resident's smoking privileges shall be consistent with the Resident Service Plan. Residents and their guests shall comply with the rules regarding smoking found in the Community Resident Handbook, Exhibit A to this Agreement.

II. SERVICES A. Hospitality Services. In consideration of the Monthly Fee, the Community shall provide

Hospitality Services as outlined in this Section: 1. Dining Services. The Resident shall receive three nutritionally well-balanced meals

daily as a normal and routine service. Resident shall be provided menu choices at mealtime. The Community provides most therapeutic diets and shall make every reasonable effort to do so. The Resident must have a physician's order for

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therapeutic diets. The cost, if any, of needed physician-ordered nutritional supplements shall be charged to the Resident. Snacks are also available to the Resident. The Community shall provide dining service in the Dining Room with service to the Resident's table or, if medically required, on a temporary basis in the Resident's Apartment Home. The need for specific food preparation, provision of therapeutic diets or special dietary services shall be identified in the Resident Care Review, incorporated into the Resident Service Plan, and applied to the designated Level of Care as only Regular Diets are considered Hospitality Services. Dining room service for guest meals shall be available on a fee-for-service basis as specified in the Schedule of Fees and Charges, Exhibit B of this Agreement and shall be paid at time of service or added to the Resident's monthly statement. Private Dining Room accommodations are available to the Resident on a scheduled basis at no charge.

2. Housekeeping. The Resident agrees to maintain the Apartment Home in a clean and orderly manner. The Community shall provide housekeeping to the Resident's Apartment Home on a weekly basis. Any supplemental housekeeping due to Resident's personal needs or habits shall be identified in the Resident Care Review, incorporated into the Resident Service Plan, and applied to the designated Level of Care.

3. Laundry. The Resident shall have the right to provide the Resident's linens, including bedding and towels. If the Resident chooses to do so, the Resident shall furnish at least two sets of sheets, a pillow and pillowcase, a bedspread, one blanket, and two sets of towels. If the Resident chooses not to provide linens, including at least two sets of sheets, a pillow and pillowcase, a bedspread and one blanket, and two sets of towels, the Community shall provide them as an additional expense. Flat linen and towel laundering are provided weekly. A Resident Laundry Room is available for the Resident to use for personal laundry. Personal laundry services, which consist of a maximum of two loads per week, are available once a week at an additional charge according to the Schedule of Fees and Charges, Exhibit B of this Agreement. Additional personal laundry and flat linen service needed will be identified in the Resident Care Review, incorporated into the Resident Service Plan, and applied to the designated Level of Care. The Community accepts no responsibility for lost or damaged articles.

4. Transportation. The Community shall provide or arrange scheduled, local transportation to medical appointments, shopping centers, and social events according to a planned schedule developed by the Community for those Residents who may need such assistance. Escorted transportation may be provided based on availability of the Community's driver at an additional fee to the Resident according to the Schedule of Fees and Charges, Exhibit B of this Agreement. A minimum of a 24-hour notice is required for individualized transportation. All other transportation is the Resident's responsibility.

5. Emergency Assistance. The Community shall provide 24 hour supervision, monitoring and emergency assistance. The Community shall provide a personal emergency alert system in the Apartment Home, and in the Commons area connected to a central system for monitoring and shall coordinate emergency

Page 5 of 22

responses when called upon to do so. The Resident is required to wear or possess on their person, the emergency alert pendant/bracelet at all times.

6. Social and Recreational Program. The Community shall provide a program of planned activities, designed to promote the Resident's active involvement, with other residents, family, and the greater outside community. The services are designed to meet Resident's physical, social, intellectual, recreational, and spiritual needs.

1. Security. The Community is restricted to those persons who have a legitimate reason to be on the premises. All visitors must sign in when they arrive and sign out when they leave in order to monitor the persons present in the Community. All exterior doors will be secured from outside entry each evening until approximately 7:00 AM each morning. An entry alert is available in the foyer for visitors during the time the doors are secured.

8. Beauty & Barbershop Services. Beauty and barbershop services will be available to the Resident on specified days and by appointment. Charges for these services are separate and may be paid at the time of service or added to the Resident's monthly statement. The Resident acknowledges that the salon operators are contracted parties and the Community is released from any and all liability and obligations for their performance.

B. Personal Care Services. The Community shall provide the personal care services outlined in this Section and considers up to one hour and fifteen minutes per day of these services purchased by the Resident and included in the Monthly Fee. The scope of personal care services is those services normally and customarily provided in a licensed residential care facility located within the State of Ohio. The amount, frequency and duration of these services shall also only be provided to the Resident consistent with these referenced regulations and what is considered to be normal and customary service. The Community defines these services within the formally organized Resident Care Review and Resident Service Plan specifically for the Resident. The Resident Service Plan is made a part of this Agreement, as Addendum D, and may be amended from time to time, as the Resident's needs materially change. The following personal care services are provided to each Resident as needed:

1. Daily Living Tasks. The Community shall provide personnel to assist the Resident in daily living tasks, including bathing, environmental management, grooming, dressing, ambulation/transfer, AM/PM preparation, toileting, mentation, socialization, behavior management, dining, health management, and medication management. The Community shall provide assistance in scheduling personal needs, as requested by the Resident, such as a doctor or dentist appointment. The Community shall have the responsibility to undertake such scheduling assistance only to the extent required by the Resident and verified in the Resident Service Plan.

2. Financial Management. The Community may assist the Resident with routine financial management including such tasks as interpreting documents, assisting with simple correspondence, or basic bookkeeping tasks. The Community also provides Cash Accounts to Residents who choose to keep an account at the Community. This account is not to exceed one hundred dollars and is to be funded by the Resident. The Community shall record all transactions to this account and shall provide the

Electronically Filed 01/15/2019 13:50 I I CV 19 909616 / Confirmation Nbr. 1599389 / CLLMD

Page 6 of 22

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Resident with a monthly statement of the account. These services, if desired by the Resident, shall be identified in the Resident Care Review, incorporated into the Resident Service Plan, and applied to the designated Level of Care. The Community is unable to serve as Power of Attorney, Legal Guardian, or Trustee, for any Resident as required by the Residential Care Facility regulations of the State of Ohio.

3. Medication. The Community shall, upon written direction by the Resident's physician, monitor, assist, or administer medications for the Resident if the Resident has been determined by their physician and the Community to require this service. All medication assistance, medication administration, and medication storage shall be provided consistent with state nursing laws and the Ohio Residential Care Facility regulations. When the Community is assisting or administering a Resident with medications, the Resident is prohibited from having prescription or over the counter medication in the Apartment Home without the prior approval of the Resident's Physician and the Community. The Community shall make arrangements for the Resident's use of a pharmacy service. If the Resident chooses to utilize another pharmacy service, medication must be provided in compliance with the Community Outside Pharmacy Provider Agreement. The Community Outside Pharmacy Provider Agreement shall be an addendum to this Agreement.

4. Skilled Nursing. Skilled nursing tasks shall be available as permitted by state nursing licensure law and Ohio Residential Care Facility regulations. The Community offers most skilled services permitted in a Residential Care Facility and the Community shall make every effort to do so. The Resident must have a physician order for the skilled services.

Health Promotion. The Community shall provide, as needed, a program designed to promote good health which may include, but not be limited to, monitoring of vital signs, visits on an individual basis with a licensed nurse, consultation with Resident's physician, education in understanding medications, coordination of Resident's supplemental health care services as needed and chosen by the Resident, seminars on health promotion topics, exercise programs, cognitive therapy programs, and ongoing coordination with Resident's physician. The amount of health promotion provided shall be identified in the Resident Care Review, incorporated into the Resident Service Plan, and applied to the designated Level of Care. Nursing related services not available from the Community may be obtained through the use of other providers as long as the third party provider is properly licensed and certified under the law, complies with all applicable government rules, and is approved by the Community as appropriate for service in a licensed residential care facility setting. The Resident agrees to be responsible for charges incurred by the third party provider and formally releases the Community from any and all liability for the cost of the service, the outcomes of any actions, or decisions of the third party provider. The Community has no agreement with any outside providers or responsibility for their performance.

D. Enhanced Care Options. The Community represents that some Residents, during their term of residency, may have a substantial change in their health status and other Residents, at initial residency, may have service and care needs that are greater than what is able to be provided within the one hour and fifteen minutes of daily service defined as Level One Care. Those needs, however, can still be appropriately met by a Residential

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Care Facility licensed within the State of Ohio with additional service and care time. This additional service and care time may be provided by the Community if those additional services adequately meet the Resident's care needs according to the Resident Care Review, are specified in the written Resident Service Plan, would assist the Resident in continuing to reside at the Community without risk or compromise to the Resident or other residents of the Community, and the Resident continues to be formally designated by the Resident's personal Physician as appropriate for a residential care facility as evidenced by the Community's Medical Evaluation form signed by the Resident's Physician. It is at the Community's sole discretion to determine whether or not the Community can provide the additional needed services and care to the Resident. These additional services, known as Enhanced Care, are designated as Level Two, Level Three, and CarePlus services. Level Two services exceed one hour and fifteen minutes per day, but can be met within two hours and fifteen minutes per day. Level Three services exceed two hours and fifteen minutes per day, but can be met within three hours and fifteen minutes per day. In the event that a Resident Service Plan exceeds three hours and fifteen minutes per day of personal care and assistance, the Resident is deemed as needing CarePlus services. CarePlus services are provided in additional one-hour increments for each hour above three hours and fifteen minutes per day. The need for these additional services will be identified through the Resident Care Review.

E. Additional Services. In addition to Hospitality and Personal Care Services, the Community shall provide certain additional services upon the Resident's request or consent. The Community's current list of Additional Services is found on the Schedule of Fees and Charges, which is attached to this Agreement as Exhibit B and the Schedule of Fees & Charges for Non-Routine Services Exhibit C

F. Excluded Services. Except as otherwise expressly stated in this Agreement, the Resident is responsible for furnishing or paying for any of the Resident's health and medical care services, including, without limitation, hospital services, physician's services, nursing services including skilled nursing facility charges, medications, vitamins, nutritional supplements, eye glasses, eye examinations, hearing aids, ear examinations, dental work, dental examinations, orthopedic appliances, laboratory tests, x-ray services, oxygen, any rehabilitative therapies, or other services not specifically identified above.

III. MEDICAL SERVICES

The Resident acknowledges that the Community has no obligation to provide health services or medical treatment to the Resident other than those detailed in the Resident Service Plan.

The Community shall recommend medical care if, in its opinion, it is needed. The Community shall not be liable, however, for any injuries suffered by the Resident in the event the Community is not aware of a change in the Resident's health needs or of the Resident's need for medical attention. The Resident authorizes the Community to order necessary medical care or assistance for the Resident in the event of any emergency. The foregoing authorization specifically includes but is not limited to: engaging the services of a medical doctor to administer treatment, injections or other medications which in the judgment of the attending medical doctor are deemed advisable or necessary; ordering an ambulance; or other services necessary to adequately care for Resident. The Resident

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IV.

shall pay the expenses of any examination, treatment, medication, equipment or other medical care or assistance ordered for the Resident by the Community.

In obtaining medical service pursuant of this authorization, the Community shall first attempt to arrange for medical care from the medical doctor or other person designated by the Resident for such purpose. If such person cannot provide needed medical services or if the Community is unable to communicate with such person, the Resident agrees that the medical doctor, service or care deemed necessary by the Community shall be selected by the Community's staff in its sole discretion.

REQUIRED MEDICAL EVALUATION AND RESIDENT CARE REVIEW FOR RESIDENCY

A. Resident Medical Evaluation. The Resident agrees to participate by obtaining a personal physician medical evaluation and to have the evaluation documented on the Community's Medical Evaluation Form. This form is required by the Ohio Department of Health and completed by the Resident's Physician no more than 90 days prior to residency and annually thereafter, or if the condition of the Resident changes prior to the annual medical evaluation. The Resident also agrees to provide a copy of the Resident's Physician Medical Evaluation to the Community.

B. Tuberculosis Testing. The Resident also agrees to comply with all Ohio Residential Care Facility regulations associated with testing for tuberculosis prior to and during residency.

C. Resident Assessment and Resident Service Plan. The Resident Assessment is completed within 30 days prior to commencement of residency, as needed based on the Resident's changing medical and care needs, and at least annually. The Resident agrees to participate in and share all needed information with the Community to complete the assessment. The purpose of the assessment is to determine the Resident's appropriateness for residing in a residential care facility and the type, frequency, and duration of services required to meet the Resident's current long term care needs. The Community and the Resident in cooperation with the Resident's Designated Person if desired by the Resident, shall participate in the Resident Assessment that determines the Resident's specific service and care needs, taking into consideration the needs and preferences of the Resident. The Resident assessment process results in a formal Resident Service Plan, which is completed within 30 days prior to the commencement of residency, within the first 30 days of residency, as needed based on the Resident's changing medical and care needs, and at least annually. The Resident Service Plan is made a part of this Agreement, as Addendum D. The Resident Service Plan outlines the Resident's services, care tasks, preferences, and a cumulative amount of time based on clock minutes to perform all of the services and tasks. Based upon this Review and cumulative time, the Resident shall receive a formal designation of Level One, Level Two, Level Three, or CarePlus services. The Level of Care shall be clearly defined and specified within the Resident Service Plan. Level One Care is included in the Monthly Fee. If the Resident assessment process results in a Level Two, Level Three, or CarePlus designation, these "Enhanced Care" services need to be purchased by the Resident consistent with the terms and conditions of the Agreement outlined in Section V. The signature of the Resident documents approval of the Resident Service Plan and on any

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executed Amendment to this Agreement outlining changes in service and associated fees. If the Resident disagrees with any adjustment of Fees related to "Enhanced Care" services, the Community shall make every reasonable effort to negotiate with the Resident as to Service Plan adjustments that resolve such differences as long as the Resident does not require the Community to ignore care tasks the Community believes are necessary for the health and welfare of the Resident. The Community shall also make available to the Resident the Community Appeal Process should the Resident choose to appeal "Enhanced Care" adjustments. If, after the above process is completed, the Resident chooses to not accept the Community's determination of changes in the Level of Care as referenced above and the associated fees, the Resident acknowledges that such refusal is cause for termination of residency by the Community based upon non-payment of fees.

V. CHARGES & FEES Security Deposit. Upon the execution of this Agreement, the Resident shall pay an amount equal to $1,000.00, which shall be a Security Deposit (the "Security Deposit"). The Security Deposit shall be retained as security throughout the term of this Agreement. The $1,000.00 Security Deposit is refundable depending upon the condition of the Apartment Home after the Resident has removed any belongings, returned all keys, laundry bag(s), emergency alert bracelet or pendant, and any other property and has no outstanding charges. Payment of the Security Deposit is due prior to or at move in. The Security Deposit shall be used to reimburse the following: (a) any repairs to return the Apartment Home to original condition at move-in or to other areas of the Community damaged by the Resident; (b) replacement of damaged, lost or removed items which were in the Apartment Home at the time of move in; ( c) any unpaid charges. All charges assessed will be included on the monthly billing statement and are due and payable upon receipt. Any refund due after all final charges have been assessed shall be paid within thirty (30) days of move out as described in Section VII.

B. Monthly Fee. The Resident shall pay a Monthly Fee in advance and on the first day of each subsequent month during the Term hereof in the amount of$ ___ (the "Monthly Fee"). The first month's fee shall be due upon execution of this Agreement. ___ _ _____ (Name of Payer) shall pay the Monthly Fee at the administrative office of the Community during regular business hours or send by U.S. Postal Service in the self-addressed return envelope provided with the invoice monthly. In return for this payment, the Community shall provide to the Resident use of the Apartment Home, all utilities including satellite television and telephone, an emergency alert system, weekly housekeeping, weekly flat linen service, three meals/day and snacks, scheduled transportation, use of the Commons, scheduled activities, and Level One personal care as set forth throughout this Agreement. The Monthly Fee is found on the Schedule of Fees and Charges, which is attached to this Agreement as Exhibit B.

C. Enhanced Care Options. "Enhanced Care" options shall be made available to the Resident on a fee-for-service basis. The fee for Enhanced Care shall be billed to the Resident monthly in accordance with the current Schedule of Rates and Charges Exhibit B made available by the Community and shall be payable when the Monthly Fee is due. Enhanced Care options are determined by the health conditions of the Resident which

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can change unexpectedly and therefore, are not subject to the thirty (30) day written notice as described in Section IV, E. below.

D. Additional Services. The Resident shall pay the rates set forth in the attached Schedule of Fee and Charges Exhibit B for any Additional Services. Payment is due by the first of each month.

E. Changes to Fees. All monthly Fees and Charges specific to the Resident are outlined on the Resident Specific Fees and Charges Schedule that is attached and incorporated into this Agreement as Addendum E to this Agreement. All charges, fines, and penalties that shall be assessed against the Resident are noted in the Agreement. The Community reserves the right to increase the Monthly Fee from time to time, upon giving thirty (30) days advance notice to the Resident and Payer, if different than the Resident.

F. Services of Other Providers. The Resident agrees to be responsible for charges incurred by any third party provider and not to hold the Community liable in any manner for the cost or performance of the services.

G. Late Charges and Cost of Collection. Any charges not paid by the Resident by the tenth day of the month shall be subject to a late charge equal to five (5%) percent of the amount due per month, payable on demand, to cover the Community's charges and expenses in connection with administering and collecting same, and such payment shall not constitute a waiver of the Community's other rights and remedies under this Agreement. In the event that the Community initiates any legal action or proceedings to collect payments due from the Resident under this Agreement, the Resident shall be responsible to pay all attorney's fees and costs incurred by the Community in pursuing the enforcement of the Resident's financial obligations. If the bank for insufficient funds or for any other reason returns any Resident check or payment unpaid, the Resident agrees to pay the Community a service charge of $25.00 within 30 days. The parties agree that said service charge is for the extra costs and expenses incurred with the collection, handling, and processing of such returned check.

H. Monthly Fee Refunds. Refunds are made upon unused days, not fractions of day: 12:01 AM starts the day, and 12:00 AM ends the day. If the Resident is residing at the Community when the day begins, then the Resident is not entitled to a refund for that day. Refunds are made upon the permanent vacating of the Community by the Resident. Refunds are not made for temporary absences from the Resident's Apartment Home. The Community considers the Apartment Home occupied by the Resident until all personal belongings are removed and the Apartment Home keys, emergency alert bracelet or pendant, laundry bag and other items for which the deposit was made are returned to the Community. Any unpaid charges shall be included on the final monthly statement and are due and payable upon receipt. Any refund due after all final charges have been assessed shall be paid within thirty (30) days of move out as described in Section VII.

I. Absence of Resident. The Resident is responsible for paying the Monthly Fee when the Resident is absent from the Apartment Home or Community, including, but not limited to, times when Resident is on vacation or when Resident has been transferred temporarily to a skilled nursing facility, or if Resident has been transferred to an outside health care facility. The Resident is not entitled to any discount on the Monthly Fee during such absences. The Monthly Fee shall continue during hospitalization or an

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extended absence as a charge for holding the selected Apartment Home. The Community shall credit to the Resident a pro-rated share of any Level of Care charges, beyond Level One Care included in the Monthly Fee, for each day after the seven-day period the Resident remains away from the Community.

J. Obligation to Keep the Community Informed. The Resident understands that the Resident is under a continuing obligation to keep the Community informed of changes in the Resident's financial status, insurance coverage, or other third party financial coverage, and to immediately inform the Community of such changes that may affect the Resident's ability to pay for the goods and services provided by the Community. This obligation includes providing the Community with an accurate financial statement upon request. The parties agree that if the Community is not paid for goods and services rendered, then this Agreement may be immediately terminated at the option of the Community and that the Community reserves the right to take all appropriate legal action.

K. Disputed Debts. The Resident is responsible for payment in full of all amounts due and owing to the Community. Notwithstanding, disputed fee(s) or charge(s) does not relieve the debtor from their responsibility of payment on any and all undisputed fee(s) and charge(s) as provided for in this Agreement. However, if the Resident disputes a debt, then all communications, including an instrument tendered as full satisfaction of a debt, are to be sent directly to the Community Director. The Community Director shall then meet with the Resident and the Resident's Designated Person in an effort to amicably resolve such dispute. If a refund is due to the Resident upon the Community Director's decision, the refund shall be credited to the next month's payment or refunded to the Resident within 30 days.

L. Indemnification. The Resident is responsible to pay for any damages or injuries caused by the Resident to the Community's property, residents, staff or other persons, and shall indemnify and hold the Community harmless from any claims, actions or proceedings against the Community resulting from the Resident's actions or omissions.

M. No Legal or Equitable Interest. The Resident has no legal or equitable interest in the real or personal property of the Community. The privileges under this Agreement are personal to the Resident and may not be assigned, sold or transferred by the Resident.

VI. TRANSFER OF RESIDENT TO LONG-TERM HEALTH FACILITY A. Agreement to Transfer. The Community must discharge or transfer a Resident when the

Resident needs skilled care beyond the services offered by the Community or able to be arranged at the Community. The Resident agrees to transfer to a facility offering the appropriate level of care if the physician Medical Evaluation or Resident Assessment indicates that the Resident's care needs cannot be met in the Community and there is a need for a higher level of care such as a long-term care nursing facility. A plan for other placement shall be made as soon as possible by the Resident or the Designated Person, if any, or both. The Community shall assist with relocation to the extent reasonably requested and necessary. The Resident is free to choose the long term care facility of Resident's choice to the extent admission is available at that facility and does not unnecessarily delay transfer of Resident from the Community.

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B. Waiver to 30-Day Advance Notice. If the Resident becomes incapacitated to the extent that the Resident needs a higher level of care immediately for the protection of their own health and welfare or their incapacity risks the health and welfare of other Residents at the Community, the Resident agrees that arrangements for the Resident's transfer to facilities such as long term nursing or psychiatric care may be made without a 30 day notice. Written notice shall be provided to the extent time allows without risking the Resident's health and welfare and/or the health and welfare of the other residents at the Community.

VII. CONDITIONS FOR TERMINATION AND NOTICE REQUIREMENTS A. Term. This Agreement shall remain in effect from the date first set forth above unless

terminated as described herein, and shall continue in force from month to month thereafter unless terminated by either party by written notice to the other as described in this Section VII, or if a new Agreement is executed with the Community.

B. By Resident.

1. The Resident may terminate this Agreement at any time, with or without cause, by giving thirty (30) days written notice to the Community Director. The notice must identify the date when the termination is to become effective and that date must be at least thirty (30) days after the date of notice. The Resident shall be responsible for all Monthly Fees, charges for Enhanced Care, and any other fees due for 30 days after notice is given whether or not the resident remains in the Community for the entire period.

2. If the Resident moves out without giving the required notice, the Resident owes the Community for each day covered by the required 30-day notice period.

3. If the Resident is transferred permanently to a long term care facility because the Resident needs a higher level of care than available at the Community, the Resident shall be assessed for a fourteen (14) day notice period or be assessed for all Monthly Fees applicable to this Agreement for the number of days the Resident's belongings occupy the Apartment and the Apartment is not available to another Resident, whichever is greater. The Resident shall be refunded a prorated amount of any Monthly Fee and Level of Care Fees if prepaid by the Resident, following the removal of the Resident's belongings from the Apartment, the return of all keys, emergency alert bracelet or pendant, laundry bag, other items for which the deposit was made, and any costs associated with returning the Apartment to the original condition at move-in.

C. By Community. 1. The Community may terminate this Agreement at any time, with or without cause,

by giving thirty (30) days written notice, including the reason for termination of residency, to the Resident and Designated Person, if applicable. In addition, it is the policy of the Community to terminate for reasons including, but not limited to, the following: Resident failure to pay Monthly Fee or additional charges for services within ten (10) days of the due date; Resident failure to comply with State or local law governing the operation of the Community after receiving written notice of the alleged violation; Resident failure to comply with the Community's rules and


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regulations as described in this Agreement and the Resident Handbook attached to this Agreement as Exhibit A; Resident failure to abide by all the terms and conditions of this Agreement; determination by the Community that the Community is inappropriate for Resident's care needs; Resident ceases to satisfy health and safety standards required by the Community; or Resident requires services or accommodations beyond that which the Community is licensed to provide under Residential Care Facility regulations or the care needs are beyond that which the Community actually provides.

2. Notwithstanding the foregoing, the Community may terminate this Agreement immediately, upon notice, and the Resident shall be required to immediately vacate the premises if: the Resident is engaging in behavior which is deemed detrimental to the mental or physical health or safety, or peaceful lodging of the Resident or other Residents at the Community; if the Resident requires medical or nursing care of a higher level than may be available at the Community or may be permitted by state licensure in Ohio; or if the Resident is at any time afflicted with a dangerous or contagious disease that cannot be effectively treated or managed in a manner that safely protects other residents and staff from disease.

3. Upon receipt of notice of termination, the Resident must surrender and leave the Apartment Home by no later than the date specified in the written notice. If the Resident disagrees with the notice of termination, the Resident can appeal the decision in a manner consistent with Ohio regulations governing operation of a residential care facility. The Community shall have all rights under the laws of the State of Ohio in the event Resident defaults on any of the Resident's obligations under this Agreement.

4. If the Resident moves out before the thirty (30) days are over, the Resident shall be refunded a prorated amount of any Monthly Fee prepaid by the Resident, following the removal of the Resident's belongings from the Apartment Home and the return of all keys, emergency alert bracelet or pendant, laundry bag, and other items for which the Security Deposit was made. Also, the refund is less any costs associated with returning the Apartment Home to the condition at move-in and any fees or charges remaining due and payable.

D. Medical Assistance. The Community is not a participant in the medical assistance program administered by the State of Ohio. Consequently, the Resident shall be issued a termination of residency notice if the Resident is unable to pay for the services provided by the Community.

E. Death. In the event of death of the Resident, the Resident's estate shall pay the prorated share of the Monthly Fee for the number of days until such time the Apartment Home is vacated. The Apartment Home is considered vacated when the Resident's possessions are removed and the keys, emergency alert bracelet or pendant, laundry bag, and other items for which the deposit applies are returned to the Community. The Resident's estate shall also pay the portion of any Level of Care Fees for the number of days in the month until the date of the Resident's death, less any Level of Care Fees that have been credited per Article V, Section I, entitled "Absence of Resident." The associated refund of any payments made for a given month shall be payable by the Community within 30 days from the date the Apartment Home is vacated.

Page 14 of 22

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F. Resident's Property. In the event of the Resident's death or permanent transfer from the Community, the Community shall exercise ordinary care in temporarily safekeeping Resident's personal property. The Community shall contact the Resident's Designated Person or legal representative within 24 hours of the Resident's death to arrange for an inventory of personal property. After such inventory, the Community may choose to store the Resident's personal property at the Resident's expense for a period of 30 days after which the Community shall formally notify the Resident's Designated Person that, if the property is not removed within 15 days, the Community shall dispose of that property with no further obligation to the Resident's estate.

G. Condition of Apartment. Upon termination of this Agreement for any reason, the Resident shall leave the Apartment Home in a clean and orderly condition, with exception to ordinary wear and tear, and shall leave the furnishings and fixtures provided by the Community. The cost for any cleaning, repairs or replacement done by the Community as a result of Resident's failure to comply with the foregoing shall be first withheld from the Security Deposit and the balance, if any, shall be paid by the Resident.

H. Release from Obligations. Any termination of this Agreement shall terminate the Community's obligation to furnish accommodations and services to the Resident. Upon payment of any refund provided for in this Agreement, the Community shall be discharged from any further obligations to the Resident under this Agreement.

VIII. DUTY TO MAINTAIN AND OTHER OBLIGATIONS OF RESIDENT A. The Resident shall use the kitchenette located in the Apartment Home for light cooking

only, and the Community Director may remove such equipment if it is determined that the presence of the equipment interferes with the safety and enjoyment of the Resident and/or other Residents.

B. The Resident shall provide suitable and sufficient clothing and personal necessities at the Resident's own expense. The Community shall not be liable or responsible for any expense incurred or debt or obligation of any nature or kind contracted by the Resident. The Resident shall be liable for any charges incurred for grocery store charges, salon services, off-premises entertainment, personal purchases, and newspaper deliveries.

IX. RESIDENT RIGHTS AND RESPONSIBILITIES

A. Resident Rights. As a Residential Care Facility licensed by the Ohio Department of Health, the Community shall ensure the Resident is provided all the rights accorded them as defined by the Ohio Revised Code governing Residential Care Facilities. The Community shall provide copies of the Resident Rights policy and procedures to the Resident and Designated Person, if any, prior to residency.

B. Resident Rules. The Resident agrees to abide by and conform to the rules, regulations, policies and principles as they now exist for the operation and management of the Community and such reasonable amendments to the above as the Community may subsequently adopt. A copy of the Community's rules and regulations is provided with this Agreement as Exhibit A, Resident Handbook, and is incorporated by reference as a part of this Agreement.

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C. Resident's Rights Subordinate. The Resident's rights under this Agreement, except those listed in the Resident's Rights Policy of the Ohio Revised Code, shall at all times be subordinate and inferior to the rights of the holder of any lien against the Community in Beachwood, Ohio. The Resident further agrees to execute, acknowledge and deliver: (i) such subordination agreement or agreements as such lender or lenders may require in order to establish the priority of such mortgage as a lien against such property, including the Apartment Home; and (ii) such estoppel certificates as such lender or lenders may reqmre.

D. Resident's Right to Rescind. The Resident shall have the irrevocable right to rescind this Agreement without the retention of any processing fees or other fees whatsoever by the Community within seven (7) days after the execution of this Agreement and before occupancy.

X. MISCELLANEOUS A. Representations of Resident. The Resident represents and warrants to the Community

that the Resident's age, medical information and financial information heretofore submitted by the Resident to the Community is accurate. The Resident agrees that if such information is not accurate, such inaccuracy constitutes a material omission, giving the Community the right to immediately terminate this Agreement.

B. Incorporation of Other Documents. The following documents are hereby incorporated into this Agreement by reference: Exhibit A-Resident Handbook; Exhibit B-Schedule of Fees and Charges; Exhibit C - Schedule of Fees & Charges for Non-Routine Services; Addendum C- Pet Policy; Addendum D - Resident Service Plan; Addendum E- Resident Specific Fees and Charges Schedule; the Application for Residency; and all other documents provided to the Community as part of the Resident's application for residency to the Community and all documents that the Resident signed or received during the application for residency process to the Community.

C. Nondiscrimination. The Community offers its services to persons whose needs can be met by the Community, without regard to race, creed, sex, age, national origin, handicap, or disability.

D. Disabled or Potentially Disabled Resident. The Community promotes accessibility and the removal of barriers for the Resident in compliance with legal and regulatory requirements. The Resident may request a reasonable accommodation in the Community programs or policies or a reasonable modification to the physical structure of the property. A request for a reasonable accommodation shall be granted unless the request would place an undue burden on the Community, amount to a fundamental alteration of a program, or pose a threat to others. If the Community is unable to accommodate the Resident's request, the Resident is referred to an organization that may be able to accommodate the Resident's needs.

E. Advance Directives. The Community does not require advance directives as a condition of residency nor does the Community otherwise discriminate against a Resident based on whether or not there are executed advance directives. The Community encourages the Resident to consider executing advance directives so that their wishes can be followed in event of a serious medical condition.

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F. Amendments. The Community is not liable for, nor bound in any manner by, any statement, representations or promises made by any person representing or purporting to represent the Community, unless such statements, representations or promises are set forth in writing and incorporated into this Agreement. Modification of this Agreement may be made only by agreement of both/all the parties in writing; provided, however, the Community reserves the right to amend policies, fees, etc., as otherwise noted in this Agreement.

G. Waiver. The failure of the Community in any one or more instances, to insist upon strict compliance by the Resident with, or its waiver of any breach of, any of the terms or provisions of this Agreement shall not be construed to be a waiver by the Community of its rights to insist upon strict compliance by the Resident to all of the terms and provisions of this Agreement.

H. Severability. Should any part of this Agreement be rendered or declared invalid by a court of competent jurisdiction of the State of Ohio, such invalidation of such part or portion of this Agreement should not invalidate the remaining portions thereof, and they shall remain in full force and effect.

I. Mandatory Arbitration. The Community and/or any designated management agent and the Resident and/or the Resident's Agent agree to submit to binding arbitration all

· disputes, claims and/or controversies (collectively "disputes") of any kind, whether in contract or in tort, statutory or common law, personal injury, property damage, legal or equitable that may arise between them and that in any way relate to this Residency Agreement or the Resident's stay at or receipt of services from the Community and/or any designated management agent. Each party waives its right to file a court action relating to any matter covered by this mandatory arbitration paragraph. This Agreement does not apply to any claim by the Community for unpaid charges which the Parties agree may be heard by a Court of competent jurisdiction in the city or county where the Community is located. This Agreement to arbitrate disputes does not prevent the Resident from filing a complaint with the Community or with any government agency regarding Resident's care at the Community.

A request for arbitration shall be made in writing, sent to the other party by certified mail, and shall be submitted in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The party filing the arbitration shall be solely responsible for payment of the initial arbitration filing fee in accordance with the Rules of the American Arbitration Association fee schedules. The arbitrator(s) shall be entitled to award recovery of the arbitration fees, attorney fees, and out-of-pocket expenses incurred by the prevailing party up to a maximum total award of five thousand dollars ($5,000.00). The arbitrator shall also have the authority to issue interlocutory and final injunctive relief. The arbitrator's decision shall be binding on the parties and conclusive as to the issues addressed, and may be entered as a judgment in a court of competent jurisdiction and not subject to further attack or appeal except in instances of fraud, coercion, or manifest error. During the pendency of any arbitration proceeding, the Community and the Resident shall continue to perform their respective obligations under this Agreement, subject, however, to the right of either party to terminate this Agreement as established herein. The obligation of the Community and the Resident to arbitrate all claims or disputes shall survive termination of the Agreement.

Page 17 of 22

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J. Nonpayment of Charges. Any legal controversy, dispute, disagreement or claim of any kind arising out of, or related to this Agreement, or the breach thereof, regarding nonpayment by the Resident for payments due to the Community shall be first resolved by the Resident and the Community following the Community Grievance Policies and Procedures. Failing to find resolution by application of these Policies and Procedures, the Community and the Resident agree the dispute shall be adjudicated in a court of law as per paragraph X.I. above

K. Absence by Resident. When Resident plans to be away from the Apartment Home for an overnight period or longer, notice shall be given to the Community during business hours at the office of the Community Director. The Community shall not be responsible for the care and well-being of the Resident when the Resident leaves the Community's premises. The Resident and the Resident's relatives, visitors, and friends shall follow procedures established by the Community for signing in and out of the premises.

L. Loss or Damage to Community's Property. Resident shall be responsible for any loss or damage suffered as a result of negligent or willful acts of the Resident or the Resident's guests or visitors. The Community reserves the right to recover from the Resident any loss caused by fire, vandalism, or any other acts of the Resident and/or the Resident's guests or visitors and the Community may assign such right to its insurance carrier.

M. Property of Resident. The Community shall not be responsible for the loss of, or damage to, the Resident's personal property, valuables, personal effects or money brought into the Community by the Resident or any visitors, including but not limited to, dentures, hearing aids, eyeglasses, due to theft, fire, water, vandalism, or any other cause, unless such damage or loss is caused by the willful misconduct or gross negligence of the Community's staff. If the Resident wishes to purchase insurance in the event of damage to his/her property or the loss of his/her property, the Resident is responsible for purchasing and maintaining such insurance. The Community encourages the Resident to purchase such insurance.

N. Benefits and Obligations. This Agreement shall bind and inure to the benefit of, only the parties hereto, their successors, heirs, legal representatives and assigns.

0. Notice. Any notice which may or shall be delivered under the terms of this Agreement, shall, unless otherwise provided herein, be in writing and shall be either delivered by hand or sent by United States mail, postage prepaid, to the addresses specified below. Either party may change such addresses from time to time by giving written notice as provided above. Notice shall be deemed given when delivered (if delivered by hand) or three (3) business days after the date when postmarked (if sent by mail).

1. If to Community:

2. If to Resident:

Beachwood Commons

3995 Green Road

Beachwood, Ohio 44122

Attention: Community Director

Page 18 of 22

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Attention:

P. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.

Q. Captions. The captions of this Agreement are for the convenience of reference only and shall not define or limit any of the terms or provisions.

R. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be original, but such counterparts shall together constitute but one and the same instrument. One original shall be maintained by each of the parties to this Agreement.

S. Contingency. This Agreement is contingent upon the Resident's eligibility for a Residential Care Facility as defined by the Resident's personal Physician and the Resident Assessment completed by the Community Director or designee .

T. Risks of daily living. The Resident understands and agrees that the services provided by the Community and/or its designated management agent and other persons within the Community are not designed to protect the Resident from the everyday, normal risks and responsibilities of living, including, but not limited to, such general accidents and situations such as falling, choking on food, and weight loss and/or dehydration resulting from the Resident's failure or refusal to partake of food and drink. Additionally, the Resident understands and agrees that the services provided by the Community do not include one-on-one monitoring of the Resident, and that the Resident's expectations shall be consistent with this understanding. The Community shall exercise reasonable care toward the Resident based on his or her known condition(s). However, the Resident agrees that the Community is not an insurer of the Resident's welfare and safety. The Resident agrees that the Resident shall exercise due care to protect himself/herself from harm.

The Resident, Designated Person, and the Resident's Power of Attorney acknowledge that the Community is a residential living environment, not a skilled care or medical facility. Residents may suffer falls or other injuries from choosing to live in a residential environment, but this does not constitute inadequate care, negligence, or any other fault on the part of the Community and/or its designated management agent, its staff, administrators, and owners. The Resident recognizes that the Community, its staff, administrators, and owners do not have total control over the acts of other residents, visitors, or outside subcontractors, or the ability to provide total assurance of physical safety from injuries. The Resident plays a significant role in his or her own care and safety, and the Community does not make any guarantees regarding the health of residents. In spite of best efforts by the Community, it is possible for the Resident to be injured just as if the Resident were living in the Resident's own home. The Resident, the Resident's heirs, assigns, POAs, or Designated Person, waive all claims for injuries to the Resident or any other person in and about the Community and shall hold the Community harmless for any damage or injury to any person arising from the use of the premises by the Resident.

Residents with a diagnosis of dementia and/or behavior of eloping from the building are at risk to injuries and/or death from a variety of possible causes, including the weather, automobiles, accidents, etc. that are beyond the control of the Community. The Resident, his or her heirs, assigns, POA's, or Designated Persons, waive all claims for injuries to person in and about the Community and shall hold the Community harmless

Page 19 of 22

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for any damage or injury to any person arising from the elopement from the premises by the Resident.

U. Waiver of Liability and Release of the Community. The Resident shall indemnify and hold harmless the Community, its owners, officers, directors, members, affiliates, employees, contractors and agents (collectively "Owners") from and against any and all costs, expenses, damages, losses, claims, demands and liabilities of any kind (including reasonable attorney's fees)(collectively "Damages") arising from or in connection with any acts or omissions of the Community or the Resident, unless such Damages resulted solely from the willful or grossly negligent misconduct of the Community. Such Resident acts or omissions shall include, but not be limited to, the Resident's refusal to accept personal or nursing care, medical or other treatment or any other item or service deemed necessary by the Community or by any other treating health professional. The Resident hereby specifically releases the Community and its Owners from any Damages that may result by reason of the Resident's temporary or permanent absence from the Community against the advice of his or her attending physician, including, but not limited to, a transfer or discharge from the Community.

XI. ASSURANCE OF CONFIDENTIALITY A. Resident Records. The Community acknowledges that the Resident's records are

confidential, and except in emergencies, may not be opened to anyone other than the Resident, the Designated Person, if any, agents of the Ohio Department of Health and the Long-Term Care Ombudsperson without the express written consent of the Resident, an individual holding the Resident's power of attorney for health care, the Resident's Designated Person, or by court order. The Resident acknowledges that the Resident records are the property of the Community and remain with the Community during and after the Resident's residency as the personal property of the Community ..

B. Release of Records. The Resident agrees by signature on the Agreement that such records can be released to persons or institutions entrusted to provide the Resident with medical care.

XII. ACKNOWLEDGMENTS

A. The Resident gives permission to the Designated Person to sign any and all documents that are part of the move in process to the Community on the Resident's behalf as the Resident's agent. The Resident agrees that in signing on the Resident's behalf, the Designated Person binds the Resident to all duties imposed by such documents as if the Resident had signed them, including the duty to pay the Community for services rendered.

B. The Resident acknowledges that this Agreement has been reviewed and explained to the Resident and the Designated Person, if any.

C. The Community shall provide Resident and Designated Person, if any, written notice at least thirty (30) days in advance of change of this Agreement.

D. The parties agree that there are no actual or intended third party beneficiaries of this Agreement other than those persons or entities whose names are signed below. The

Page 20 of 22

person(s) signing below have read all of the terms of this Agreement, and has had an opportunity to ask questions regarding those terms. The parties do for themselves, their heirs, administrators and executors; agree to the terms of this Agreement in consideration of the Community's acceptance of and rendering services to the Resident.

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IN WITNESS WHEREOF, the Community and Resident have caused this Agreement to be duly executed on the date first set forth above. In signing this Agreement, the Resident indicates receipt of an executed copy of the Residency Agreement, the Community Resident Handbook (Exhibit A) which contains the Community policies, rules, and procedures, and the current Schedule of Fees and Charges (Exhibit B). All parties as signed below attest to having had adequate opportunity to review this Agreement, Resident Handbook, and Schedule of Fees and Charges and their contents and are in Agreement with all terms and conditions, and agree to be legally bound to the terms set forth in the referenced documents.

Resident Signature Date Signed

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If all payments related to this Agreement are being made on behalf of the Resident by another party, the party is identified below as Payer. By signature below, the Payer agrees to all terms and conditions of Agreement.

Name of Payer: _______________ _

Address:------------------------------------Relationship to the Resident: __________ _

Signature of Payer Date Signed

If a Resident is unable to sign his/her name, Resident should show his/her mark below:

Resident's Mark Dated Marked

Witness to Mark Date Witnessed

Witness's Printed Name

Page 22 of 22

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Ohio Residential Care Facility

RESIDENTS' BILL OF RIGHTS

Ohio Revised Code Sections 3721.10-3721.17

Provided by

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3721.11 Director to adopt rules. (A) The director of the department of health shall adopt rules under Chapter 119. of the Revised Code to govern procedures for the implementation of sections 3721.10 to 3 721.17 of the Revised Code. (B) The director may adopt, amend, and repeal substantive rules under Chapter 119. of the Revised Code defining with reasonable specificity acts that violate division (A) of section 3 721.13 of the Revised Code. Effective Date: 01-09-1979

3721.12 Duties of nursing home administrator concerning residents' rights. (A) The administrator of a home shall: ( 1) With the advice of residents, their sponsors, or both, establish and review at least annually, written policies regarding the applicability and implementation of residents' rights under sections 3 721.10 to 3721.17 of the Revised Code, the responsibilities of residents regarding the rights, and the home's grievance procedure established under division (A)(2) of this section. The administrator is responsible for the development of, and adherence to, procedures implementing the policies. (2) Establish a grievance committee for review of complaints by residents. The grievance committee shall be comprised of the home's staff and residents, sponsors, or outside representatives in a ratio of not more than one staff member to every two residents, sponsors, or outside representatives. (3) Furnish to each resident and sponsor prior to or at the time of admission, and to each member of the home's staff, at least one of each of the following: (a) A copy of the rights established under sections 3 721.10 to 3 721.17 of the Revised Code; (b) A written explanation of the provisions of sections 3 721.16 to 3 721.162 of the Revised Code; (c) A copy of the home's policies and procedures established under this section; (d) A copy of the home's rules; ( e) A copy of the addresses and telephone numbers of the board of health of the health district of the county in which the home is located, the county department of job and family services of the county in which the home is located, the state departments of health and medic aid, the state and local offices of the department of aging, and any Ohio nursing home ombudsman program. (B) Written acknowledgment of the receipt of copies of the materials listed in this section shall be made part of the resident's record and the staff member's personnel record. (C) The administrator shall post all of the following prominently within the home: (1) A copy of the rights of residents as listed in division (A) of section 3721.13 of the Revised Code; (2) A copy of the home's rules and its policies and procedures regarding the rights and responsibilities of residents; (3) A notice that a copy of this chapter, rules of the department of health applicable to the home, and federal regulations adopted under the medicare and medicaid programs, and the materials required to be available in the home under section 3721.021 of the Revised Code, are available for inspection in the home at reasonable hours; ( 4) A list of residents' rights advocates; (5) A notice that the following are available in a place readily accessible to residents: (a) If the home is licensed under section 3721.02 of the Revised Code, a copy of the most recent licensure inspection report prepared for the home under that section; (b) If the home is a facility, a copy of the most recent statement of deficiencies issued to the home under section 5165 .68 of the Revised Code. (D) The administrator of a home may, with the advice of residents, their sponsors, or both, establish written policies regarding the applicability and administration of any additional residents' rights beyond those set forth in sections 3 721.10 to 3 721.17 of the Revised Code, and the responsibilities of residents regarding the rights. Policies established under this division shall be reviewed, and procedures developed and adhered to as in division (A)(l) of this section. Amended by 130th General Assembly File No. 25, HB 59, § 101.01, eff. 9/29/2013.

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(b) A violation of an existing or former law of this state, any other state, or the United States that is substantially equivalent to any of the offenses listed in division (C)(l)(a) of this section. (2)

-; (a) A home or an adult day-care program may employ conditionally an applicant for whom a criminal records check request is required under division (B) of this section prior to obtaining the results of a criminal records check regarding the individual, provided that the home or program shall request a criminal records check regarding the individual in accordance ·with division (B)(l) of this section not later than five business days after the individual begins conditional employment. In the circumstances described in division (1)(2) of this section, a home or adult day-care program may employ conditionally an applicant who bas been referred to the home or adult day-care program by an employment service that

:: supplies full-time, part-time, or temporary staff for positions involving the direct care of older adults and

0 for \Yhom, pursuant to that division, a criminal records check is not required under division (B) of this < section.

(b) A home or adult day-care program that employs an individual conditionally under authority of g division (C)(2)(a) of this section shall terminate the individual's employment if the results of the criminal records check requested under division (B) of this section or described in division (I)(2) of this section, other than the results of any request for information from the federal bureau of investigation, are not g obtained within the period ending thirty days after the date the request is made. Regardless of when the

=;' results of the criminal records check are obtained, if the results indicate that the individual has been [ convicted of or pleaded guilty to any of the offenses listed or described in division (C)(l) of this section, ~r the home or program shall terminate the individual's employment unless the home or program chooses to

employ the individual pursuant to division (F) of this section. Termination of employment under this division shall be considered just cause for discharge for purposes of division (D)(2) of section 4141.29 of the Revised Code if the individual makes any attempt to deceive the home or program about the

w OJ individual's criminal record. co -. (D)

( 1) Each home or adult day-care program shall pay to the bureau of criminal identification and investigation the fee prescribed pursuant to division (C)(3) of section 109.572 of the Revised Code for each criminal records check conducted pursuant to a request made under division (B) of this section. (2) A home or adult day-care program may charge an applicant a fee not exceeding the amount the home or program pays under division (D)(l) of this section. A home or program may collect a fee only if both of the following apply: (a) The home or program notifies the person at the time of initial application for employment of the amount of the fee and that, unless the fee is paid, the person will not be considered for employment; (b) The medicaid program does not reimburse the home or program the fee it pays under division (D)(l) of this section. (E) The report of any criminal records check conducted pursuant to a request made under this section is not a public record for the purposes of section 149.43 of the Revised Code and shall not be made available to any person other than the following: (1) The individual who is the subject of the criminal records check or the individual's representative; (2) The chief administrator of the home or program requesting the criminal records check or the administrator's representative; (3) The administrator of any other facility, agency, or program that provides direct care to older adults that is owned or operated by the same entity that owns or operates the home or program; ( 4) A court, hearing officer, or other necessary individual involved in a case dealing with a denial of employment of the applicant or dealing with employment or unemployment benefits of the applicant; (5) Any person to whom the report is provided pursuant to, and in accordance with, division (I)(l) or (2) of this section; (6) The board of nursing for purposes of accepting and processing an application for a medication aide certificate issued under Chapter 4 723. of the Revised Code; (7) The director of aging or the director's designee if the criminal records check is requested by the chief

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the criminal records check, promptly shall send a copy of the results to the home or adult day-care 21 program, and division (C)(2)(b) of this section applies regarding the conditional employment. [ Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th GeneralAssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012 and 1/1/2013. Effective Date: 09-26-2003; 06-30-2005

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'.:: 3721.122 Screening and accommodations for sex offenders. Before an individual is admitted as a resident to a home, the home's administrator shall search for the

'.: individual's name in the internet-based sex offender and child-victim offender database established under

0 division (A)(! I) of section 2950.13 of the Revised Code. If the search results identify the individual as a < sex offender and the individual is admitted as a resident to the home, the administrator shall provide for

the home to do all of the followin2:: © (A) Develop a plan of care to protect the other residents' rights to a safe environment and to be free from abuse;

0 © a, a, -- (B) Notify all of the home's other residents and their sponsors that a sex offender has been admitted as a g resident to the home and include in the notice a description of the plan of care developed under division =;' (A) of this section; [ (C) Direct the individual in updating the individual's address under section 2950.05 of the Revised Code g and, if the individual is unable to do so without assistance, provide the assistance the individual needs to

update the individual's address under that section. ...., Added by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014. (Jl © ©

3721.13 Residents' rights. (A) The rights of residents of a home shall include, but are not limited to, the following: (1) The right to a safe and clean living environment pursuant to the medicare and medicaid programs and applicable state laws and rules adopted by the director of health;

0 (2) The right to be free from physical, verbal, mental, and emotional abuse and to be treated at all times \Vith courtesy, respect, and full recognition of dignity and individuality; (3) Upon admission and thereafter, the right to adequate and appropriate medical treatment and nursing care and to other ancillary services that comprise necessary and appropriate care consistent with the program for which the resident contracted. This care shall be provided without regard to considerations such as race, color, religion, national origin, age, or source of payment for care. ( 4) The right to have all reasonable requests and inquiries responded to promptly; (5) The right to have clothes and bed sheets changed as the need arises, to ensure the resident's comfort or sanitation; (6) The right to obtain from the home, upon request, the name and any specialty of any physician or other person responsible for the resident's care or for the coordination of care; (7) The right, upon request, to be assigned, within the capacity of the home to make the assignment, to the staff physician of the resident's choice, and the right, in accordance with the rules and wntten policies and procedures of the home, to select as the attending physician a physician who is not on the staff of the home. If the cost of a_physician's services is to be met under a federally supported program, the physician shall meet the federal laws and regulations governing such services. (8) The right to participate in decisions that affect the resident's life, including the right to communicate with the physician and employees of the home in planning the resident's treatment or care and to obtain from the attending physician complete and current information concerning medical condition, prognosis, and treatment plan, in terms the resident can reasonably be expected to understand; the right of access to all information in the resident's medical record; and the right to give or withhold informed consent for treatment after the consequences of that choice have been carefully explained. When the attending physician finds that it is not medically advisable to give the information to the resident, the information

7

community groups at the resident's or the group's initiative; (21) The right upon reasonable request to private and unrestricted communications with the resident's family, social worker, and any other person, unless not medically advisable as documented in the resident's medical record by the attending physician, except that communications with public officials or with the resident's attorney or physician shall not be restricted. Private and unrestricted communications shall include, but are not limited to, the right to: (a) Receive, send, and mail sealed, unopened correspondence; (b) Reasonable access to a telephone for private communications; ( c) Private visits at any reasonable hour. (22) The right to assured privacy for visits by the spouse, or if both are residents of the same home, the right to share a room within the capacity of the home, unless not medically advisable as documented in the resident's medical record by the attending physician; (23) The right upon reasonable request to have room doors closed and to have them not opened without knocking, except in the case of an emergency or unless not medically advisable as documented in the resident's medical record by the attending physician; (24) The right to retain and use personal clothing and a reasonable amount of possessions, in a reasonably secure manner, unless to do so would infringe on the rights of other residents or would not be medically advisable as documented in the resident's medical record by the attending physician; (25) The right to be fully informed, prior to or at the time of admission and during the resident's stay, in \\Titing, of the basic rate charged by the home, of services available in the home, and of any additional charges related to such services, including charges for services not covered under the medicare or medicaid program. The basic rate shall not be changed unless thirty days' notice is given to the resident or, if the resident is unable to understand this information, to the resident's sponsor. (26) The right of the resident and person paying for the care to examine and receive a bill at least monthly for the resident's care from the home that itemizes charges not included in the basic rates; (27) (a) The right to be free from financial exploitation; (b) The right to manage the resident's own personal financial affairs, or, if the resident has delegated this responsibility in writing to the home, to receive upon written request at least a quarterly accounting statement of financial transactions made on the resident's behalf. The statement shall include: (i) A complete record of all funds, personal property, or possessions of a resident from any source whatsoever, that have been deposited for safekeeping with the home for use by the resident or the resident's sponsor; · (ii) A listing of all deposits and withdrawals transacted, which shall be substantiated by receipts which shall be available for inspection and copying by the resident or sponsor. (28) The right of the resident to be allowed unrestricted access to the resident's property on deposit at reasonable hours, unless requests for access to property on deposit are so persistent, continuous, and unreasonable that they constitute a nuisance; (29) The right to receive reasonable notice before the resident's room or roommate is changed, including an explanation of the reason for either change. (30) The right not to be transferred or discharged from the home unless the transfer is necessary because of one of the following: (a) The welfare and needs of the resident cannot be met in the home. (b) The resident's health has improved sufficiently so that the resident no longer needs the services provided by the home. ( c) The safety of individuals in the home is endangered. ( d) The health of individuals in the home would otherwise be endangered. ( e) The resident has failed, after reasonable and appropriate notice, to pay or to have the medicare or medicaid program pay on the resident's behalf, for the care provided by the home. A resident shall not be considered to have failed to have the resident's care paid for if the resident has applied for medicaid, unless both of the following are the case:

Electronically Filed 01/15/2019 13:50 / / CV 19 909616 / Confirmation Nbr. 1599389 I CLLMD 9

3721.15 Authorization to handle residents' financial affairs. (A) Authorization from a resident or a sponsor with a power of attorney for a home to manage the resident's financial affairs shall be in writing and shall be attested to by a witness who is not connected in any manner whatsoever with the home or its administrator. The home shall maintain accounts pursuant to division (A)(27) of section 3721.13 of the Revised Code. Upon the resident's transfer, discharge, or death, the account shall be closed and a final accounting made. All remaining funds shall be returned to the resident or resident's sponsor, except in the case of death, when all remaining funds shall be transferred or used in accordance with section 5162 .22 of the Revised Code. (B) A home that manages a resident's financial affairs shall deposit the resident's funds in excess of one thousand dollars, and may deposit the resident's funds that are one thousand dollars or less, in an interest-bearing account separate from any of the home's operating accounts. Interest earned on the resident's funds shall be credited to the resident's account. A resident's funds that are one thousand dollars or less and have not been deposited in an interest-bearing account may be deposited in a noninterest-bearing account or petty cash fund. (C) Each resident whose financial affairs are managed by a home shall be promptly notified by the home ,vhen the total of the amount of funds in the resident's accounts and the petty cash fund plus other nonexempt resources reaches nvo hundred dollars less than the maximum amount permitted a recipient of medic aid. The notice shall include an explanation of the potential effect on the resident's eligibility for medicaid if the amount in the resident's accounts and the petty cash fund, plus the value of other nonexempt resources, exceeds the maximum assets a medicaid recipient may retain. (D) Each home that manages the financial affairs of residents shall purchase a surety bond or otherwise provide assurance satisfactory to the director of health, or, in the case of a home that participates in the medicaid program, to the medicaid director , to assure the security of all residents' funds managed by the home. Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013. Effective Date: 09-05-2001; 06-30-2005

3721.16 Residents' rights concerning transfer or discharge. For each resident of a home, notice of a proposed transfer or discharge shall be in accordance with this section. (A) (1) The administrator of a home shall notify a resident in writing, and the resident's sponsor in writing by certified mail, return receipt requested, in advance of any proposed transfer or discharge from the home. The administrator shall send a copy of the notice to the state department of health. The notice shall be provided at least thirty days in advance of the proposed transfer or discharge, unless any of the following applies: (a) The resident's health has improved sufficiently to allow a more immediate discharge or transfer to a less skilled level of care; (b) The resident has resided in the home less than thirty days; ( c) An emergency arises in which the safety of individuals in the home is endangered; ( d) An emergency arises in which the health of individuals in the home would otherwise be endangered; (e) An emergency arises in which the resident's urgent medical needs necessitate a more immediate transfer or discharge. In any of the circumstances described in divisions (A)(l)(a) to (e) of this section, the notice shall be provided as many days in advance of the proposed transfer or discharge as is practicable. (2) The notice required under division (A)(l) of this section shall include all of the following: (a) The reasons for the proposed transfer or discharge; (b) The proposed date the resident is to be transferred or discharged; (c) Subject to division (A)(3) of this section, a proposed location to which the resident may relocate and a


m (D

8- proposed transfer or discharge, whichever is later, the resident or resident's sponsor may challenge the ~- proposed transfer or discharge by submitting a written request for a hearing to the state department of

health. On receiving the request, the department shall conduct a hearing in accordance with ; section3721.162 of the Revised Code to determine whether the proposed transfer or discharge complies [ with division (A)(30) of section 3 721.13 of the Revised Code.

(B) Except in the circumstances described in divisions (A)(l)(a) to (e) of section 3721.16 of the Revised Code, if a resident or resident's sponsor submits a written hearing request not later than ten days after the resident or the resident's sponsor received notice of the proposed transfer or discharge, whichever is later, the home shall not transfer or discharge the resident unless the department determines after the hearing

(;) that the transfer or discharge complies with division (A)(30) of section 3 721.13 of the Revised Code or (Jl

'.: the department's determination to the contrary is reversed on appeal. -- (C) If a resident or resident's sponsor does not request a hearing pursuant to division (A) of this section,

the home may transfer or discharge the resident on the date specified in the notice required by division (A) of section 3 721.16 of the Revised Code or thereafter, unless the home and the resident or, if the resident is not competent to make a decision, the home and the resident's sponsor, agree to an earlier date. (D) If the resident or resident's sponsor requests a hearing in writing pursuant to division (A) of this section and the home transfers or discharges the resident before the department issues a hearing decision, the home shall readmit the resident in the first available bed if the department determines after the hearing

::::i that the transfer or discharge does not comply with division (A)(30) of section 3721.13 of the Revised

[ Code or the department's determination to the contrary is reversed on appeal. ~r Effective Date: 09-05-2001 z 0-

=- 3721.162 Determining whether transfer or discharge complies. (A) On receiving a request pursuant to section 3721.161 of the Revised Code, the department of health shall conduct hearings under this section in accordance with 42 C.F.R. 431, subpart E, to determine whether the proposed transfer or discharge complies with division (A)(30) of section 3721.13 of the

P Revised Code. r 0

(B) The department shall employ or contract with an attorney to serve as hearing officer. The hearing officer shall conduct a hearing in the home not later than ten days after the date the department receives a request pursuant to section 3 721.161 of the Revised Code, unless the resident and the home or, if the resident is not competent to make a decision, the resident's sponsor and the home, agree otherwise. The hearing shall be recorded on audiotape, but neither the recording nor a transcript of the recording shall be part of the official record of the hearing. A hearing conducted under this section is not subject to section 121.22 of the Revised Code. (C) Unless the parties otherwise agree, the hearing officer shall issue a decision within five days of the date the hearing concludes. In all cases, a decision shall be issued not later than thirty days after the department receives a request pursuant to section 3721.161 of the Revised Code. The hearing officer's decision shall be served on the resident or resident's sponsor and the home by certified mail. The hearing officer's decision shall be considered the final decision of the department. (D) A resident, resident's sponsor, or home may appeal the decision of the department to the court of common pleas pursuant to section 119.12 of the Revised Code. The appeal shall be governed by sectionl 19.12 of the Revised Code, except for all of the following: (1) The resident, resident's sponsor, or home shall file the appeal in the court of common pleas of the county in which the home is located. (2) The resident or resident's sponsor may apply to the court for designation as an indigent and, if the court grants the application, the resident or resident's sponsor shall not be required to furnish the costs of the appeal. (3) The appeal shall be filed with the department and the court within thirty days after the hearing officer's decision is served. The appealing party shall serve the opposing party a copy of the notice of appeal by hand-delivery or certified mail, return receipt requested. If the home is the appealing party, it shall provide a copy of the notice of appeal to both the resident and the resident's sponsor or attorney, if

13

Revised Code, except that an appeal may be made to the court of common pleas of the county in which the home is located. The department of health shall initiate proceedings in court to collect any fine assessed under this section that is unpaid thirty days after the violator's final appeal is exhausted. (F) Any home found, pursuant to an adjudication hearing under division (D) of this section, to have violated sections 3 721.10 to 3 721.17 of the Revised Code, or rules, policies, or procedures adopted pursuant to those sections may be fined not less than one hundred nor more than five hundred dollars for a first offense. For each subsequent offense, the home may be fined not less than two hundred nor more than one thousand dollars. A violation of sections 3 721.l O to 3 721. l 7 of the Revised Code is a separate offense for each day of the violation and for each resident who claims the violation. (G) No home or employee of a home shall retaliate against any person who: ( 1) Exercises any right set forth in sections 3 721.10 to 3 721.17 of the Revised Code, including, but not limited to, filing a complaint with the home's grievance committee or reporting an alleged violation to the department of health; (2) Appears as a ,vitness in any hearing conducted under this section or section 3 721.162 of the Revised Code; (3) Files a civil action alleging a violation of sections 3 721.10 to 3721.17 of the Revised Code, or notifies a county prosecuting attorney or the attorney general of a possible violation of sections 3 721. l O to 3721.17 of the Revised Code. If, under the procedures outlined in this section, a home or its employee is found to have retaliated, the violator may be fined up to one thousand dollars. (H) When legal action is indicated, any evidence of criminal activity found in an investigation under division (C) of this section shall be given to the prosecuting attorney in the county in which the home is located for investigation. (I) (1) ( a) Any resident \Yhose rights under sections 3 721.l O to 3 721.17 of the Revised Code are violated has a cause of action against any person or home committing the violation. (b) An action under division (I)(l)(a) of this section may be commenced by the resident or by the resident's legal guardian or other legally authorized representative on behalf of the resident or the resident's estate. If the resident or the resident's legal guardian or other legally authorized representative is unable to commence an action under that division on behalf of the resident, the following persons in the following order of priority have the right to and may commence an action under that division on behalf of the resident or the resident's estate: (i) The resident's spouse; (ii) The resident's parent or adult child; (iii) The resident's guardian if the resident is a minor child; (iv) The resident's brother or sister; (v) The resident's niece, nephew, aunt, or uncle. ( c) Notwithstanding any law as to priority of persons entitled to commence an action, if more than one eligible person within the same level of priority seeks to commence an action on behalf of a resident or the resident's estate, the court shall determine, in the best interest of the resident or the resident's estate, the individual to commence the action. A court's determination under this division as to the person to commence an action on behalf of a resident or the resident's estate shall bar another person from commencing the action on behalf of the resident or the re~ident's estate. (d) The result of an action commenced pursuant to division (I)(l)(a) of this section by a person authorized under division (I)(l )(b) of this section shall bind the resident or the resident's estate that is the subject of the action. (e) A cause of action under division (I)(l)(a) of this section shall accrue, and the statute of limitations applicable to that cause of action shall begin to run, based upon the violation of a resident's rights under

Electronically filed 01/15/2019 13:50 / / CV 19 909616 / Confirmation Nbr. 1599389 I CLLMD 15

(The following is an "explanation" of sections 3721.16 to 3 721.162 of the Ohio Revised Code)

Resident's rights concerning transfer or discharge. The administrator of the facility is required to give an advance written notice of the proposed transfer or discharge. The vvritten notice is to be given to the resident and is to be sent to the resident's sponsor via certified mail, return receipt requested. A copy shall also be sent to the Ohio Department of Health. The written notice must be given thirty (30) days in advance of the proposed transfer or discharge, unless any of the following circumstances apply:

A) the resident's health has improved sufficiently to allow for a more immediate transfer or discharge to a less skilled level of care;

B) an emergency arises in which the resident's urgent medical needs require a more immediate transfer or discharge;

C) the resident has resided in the facility for less then 30 days; D) an emergency arises in which the safety of the individuals in the facility is

endangered; or E) an emergency arises in which the health of individuals in the home would otherwise be

endangered.

In any of the circumstances described in a-e above, although 30 days notice is not required, the discharge notice should be provided as many days in advance as practicable.

The written notice is required to include:

A) the reasons for the proposed discharge or transfer,· B) the proposed date of discharge or transfer; CJ the proposed location to which the resident will be transferred or discharged; D) notice of the following information:

i. the right of the resident and the sponsor to an impartial hearing at the facility; ii. the manner in which the resident or the resident's sponsor may request a

hearing; iii. the time within which the resident or resident's sponsor may request a hearing

(see 3721.161 below and note that a the statement that "a resident who requests a written hearing request within 10 days of receipt of the discharge notice will not be transferred or discharged unless it is determined at hearing that the transfer or discharge is in compliance with Ohio law" must be in bold type.);

iv. a statement that the resident will not be transferred or discharged before the specified date unless the facility and resident (or sponsor if the resident is not competent to make a decision), agree to an earlier date.

v. the name, address and telephone number of the state designated regional long-term care ombudsperson programs serving the area in which the home is located


LifeServices Management Corporation Beachwood Commons

Authorization for Cash Accounts

Beachwood Commons provides cash account services to residents and families as a convenience for those who want to have cash available for residents, but prefer for Beachwood Commons to manage and handle the funds. Listed below are the details and guidelines of the program.

1. Si!ming for transactions. Beachwood Commons maintains receipts for all withdrawals and deposits to the account. The Resident understands that each time money is withdravvn from the cash account the Resident is required to acknowledge receipt of those funds by signature. Withdraws and deposits can be made during normal business hours.

2. Investment of funds. The Resident's accotint shall not exceed $100.00 and is to be funded by Resident. Beachwood Commons is not under any duty or obligation to invest the Resident cash account or to monitor how or for what purposes the Resident is spending his/her funds.

3. Monthlv accounting. Beachwood Commons provides an itemized statement of the financial transactions made by the Resident.

4. Distribution of funds when account closed. At the request of the resident or if the Resident moves out of the Community the account shall be closed and a final accounting made.

Resident Date

Designated Person & Relationship to Resident Date

Witness (\Vho is not connected with Beachwood Commons) Date

R:\Beachwood Commons\Accounting\BWC ts.doc

NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS

1200 Ontario Street Cleveland, Ohio 44113

Court of Common Pleas

New Case Electronically Filed: January 15, 2019 13:50

By: WILLIAM B. EADIE 0085627

Confirmation Nbr. 1599389

THE ESTATE OF PATRICK GALLAGHER CV 19 909616

vs. Judge: EMILY HAGAN

BEACHWOOD COMMONS ASSISTED LIVING ET AL.

Pages Filed: 48
