5.: UH 3 STATE OF VERMONT SUPERIOR COURT WASHINGTON UNIT :3 A q. CIVIL DIVISION IN RE: Woodbine Senior Living, LLC Docket No. ob MOV ASSURANCE OF DISCONTINUANCE Vermont Attorney General Thomas J. Donovan, Jr. (?the Attorney General?) and Woodbine Senior Living, LLC (?Respondent? or ?Woodbine?), hereby enter into to this Assurance Of Discontinuance pursuant to 9 V.S.A. 2459. LEGAL FRANIEWORK 1. Pursuant to 33 V.S.A. 7103, Vermont IOng?term care facilities are licensed and regulated as either: (1) ?nursing homes?; (2) ?residential care homes?; or (3) ?assisted living residences.? 2. There are differences between the levels of care that these kinds of facilities are intended and permitted to provide. - Nursing Homes 3. ?Nursing homes? are defined as facilities that are ?primarily engaged? in providing residents ?skilled nursing care and related services?; ?rehabilitation services for the I rehabilitation of person who are injured, have a disability, or are sick?; and ?on a 24?hour basis, care and services to individuals who, because Of their mental or physical condition, require care and serViCeS which can be made available to them only through institutional care.? 33 V.S.A. 7102 (7). 4. There are no state regulatory limitations on the kinds of care nursing homes may provide. See generally State of Vermont Licensing and Operating Rules for Nursing Homes, December 15, 2001 5. Accordingly, nursing homes are required to maintain certain levels and ratios of nursing and non-nursing staff and a license-speci?c ?quality of care,? among other standards. Id. at Rules 7, 11. ii. Residential Care Homes 6. By contrast, ?residentialcare homes? (RCHs) are intended to ?provide care to persons unable to live wholly independently but not in need of the level of care and services provided in a nursing home.? See State of Vermont Residential Care Home Licensing Regulations, October 3, 2000 Rules?), at Rule 1.1 (emphasis added). 7. Indeed, Level RCHs are de?ned as ?places? that ?p"rovide[] personal care, de?ned as assistance with meals, dressing, movement, bathing, grooming, or other personal needs, or general supervision of physical or mental well-being, including nursing overview and medication management as de?ned by the licensing agency by rule, but not full-time nursing care.? 33 V.S.A. 7102 (10) (emphases, added). 8. RCHs are generally prohibited from ?accept[ing] or retain[ing] as a resident any individual who meets level of care eligibility for nursing home admission, or who otherwise has care needs which exceed what the home is able to safely and appropriately provide.? RCH Rule 5.1.a (emphases added). 1 The VTNH Rules cited herein governed Vermont nursing homes during the Relevant Period, as de?ned below. They were amended in June 2018. 9. Further: a. person with a serious, acute illness requiring the medical, surgical or nursing care of a general or special hospital shall not be admitted to or retained as a resident in a residential care home.? RCH Rule 5.1.b; b. RCHs are prohibited from providing the following services to residents: ?intravenous therapy; ventilators or respirators; daily catheter irrigation; feeding tubes; care of stage or IV decubitus; suctioning; [and] sterile dressings.? RCH Rule 5.9.15; and, d? c: residents who require more than nursing overview or medication management shall [generally] not be retained in a residential care home? unless ?[t]he nursing services required provided fewer than times per week; or. .. [p]rovided for up to days a week for no more than 60 days and the resident's condition is improving during that time and the nursing service provided is limited in nature; or by a Medicare?certi?ed Hospice Program,? and, in each such case, numerous additional criteria are met. RCH Rule 5.9 (emphases added). 10. RCH- rules contemplate that RCHs may be required to ?involuntarily discharge? residents,2 including for the reasons that: a. ?The resident?s care needs exceed those which the home is licensed or approved through a variance to provide.? RCH Rule 2 VTNH Rules and ASsisted Living Residence Rules likewise provide for involuntary discharges under certain circumstances. See, VTNH Rule 3.14 (?Transfer and Discharge?) and Assisted Living Residence Licensing Regulation 6.5 (?Involuntary Discharge of Residents?). b. ?The home is unable to meet the resident?s assessed needs.? RCH Rule or ?The discharge or transfer is ordered by a court.? RCH Rule 11. An RCH may apply to the State of Vermont?s Department of Disabilities, Aging and Independent Living [for a ?variance? from RCH regulations in order to admit or retain a resident whose care needs exceed the license limitations. However, whether DAIL grants such a variance is: (1) exclusively within discretiOn; and (2). dependent upon determination that the proposed variance meets certain regulatory criteria. RCH Rule 3.1-3.5. Assisted Living Residences 12. Assisted Living Residences (ALRs) are facilities explicitly intended to provide for ?aging in place,? de?ned as the ability for residents ?to remain in a residence despite physical or mental decline that might occur with aging or with disability. . . Assisted Living Residence Licensing Regulations, March 15', 2003 Rules?), at Rule 3.1. 13. ALR. regulations permit ALRs to accommodate residents with a broad range of care needs, from those able to undertake independent living3 "to those who require nursing home level care. See ALR Rule 6.1. 14. Accordingly: a. ALRsare not subject to the ?Eligibility?. requirements set forth in RCH'Rules 5.1(a) and see ALR Rule 2.1 (?Exceptions? regarding ?Eligibility?); .and 3 As re?ected. in the ALR ?Physical Plant? requirement that ALR resident units ?shall a private [and] kitchen capacity.? See ALR Rule 11.2. 4 b. ALRs are not subject to the ?Level of Care and Nursing Service? restrictions as set forth in RCH Rules and see ALR Rule 2.4 (?Exceptions? regarding ?Level of Care and Nursing Services?); and c. In ALRs, ?[t]he expectation is that. individuals will be permitted to age in and not be required to leave an involuntarily.? ALR Rule 6.5 (emphasis added). 15. Division of Survey Certi?cation enforces the aforementioned long?term care regulations. 16. The Vermont Consumer Protection Act (the 9 V.S.-A. 2451, et seq. prohibits unfair and deceptive acts and practices in commerce: 9. V.S.A. 245 BACKGROUND Woodbine Senior Living LLC Managed Spring Village at Essex 17. Respondent Woodbine is a limited liability company organized under the laws of Maryland with its principal place of business located at 900 Osprey St., Venice, FL 34285. 18. From approximately December 5, 2014, to April 30, 2018, Woodbine served as manager of ?Spring Village at Essex,? located at 6 Freeman Woods, Essex, Vermont, 05452 SVE was licensed by the State of Vermont as a Level Residential Care Home. 19. As manager of SVE, per written agreement with ultimate owner, Woodbine was responsible for hiring and training SVE Staff; directing marketing efforts; overseeing day-to-day operations, including the provision of care to residents; and ensuring compliance with applicable state laws and regulations. Brochure Website 20. Between April 1, 2016, and October 31, 2017 (the ?Relevant Period?), Woodbine developed and approved for publication and circulation a brochure and website marketing SVE. 21. During the Relevant Period, brochure identi?ed SVE as ?an Assisted Living community specializing in caring for people with Alzheimer?s, Dementia, and Memory Loss?; that SVB was ?for those-who need a high level of care?; and that SVE provided for ?aging in place, including end of life care.? I 22. During the Relevant Period, website also stated that SVE was ?for those who need a high level of care? and provided a hyperlink to a downloadable brochure that stated that SVE 'was a ?dedicated memory care facility? whereby ?Memory Care Aging in place, including end of life care.? i 23. For purposes of this AOD, Respondent admits the truth of all facts set forth in 1M 17- 23 of this Background section. The Attorney General?s Investigation 24. Upon investigation, in addition to the facts set forth above in 17-23, the AGO found and alleges that: a. During the Relevant Period; SVE admitted 48 residents (?Admitted Residents?) .4 b. During the Relevant Period, SVE staff made oral representations to Admitted Residents? families that, if those families moved their loved ones to SVE, their 4 ?Admitted Residents? does not include individuals admitted to SVE for ?respite stay? only. 6 loved ones would be able to ?age in place? at receive ?end of life care? there; and therefore never have to move again. c. Families of Admitted Residents relied on the written and oral representations described above in 21 ?22 and 1] 24(b) in deciding to admit their loved ones to SVE. d. On February 22, 2018, SVE issued a notice of discharge to an Admitted Resident in part upon the basis that is unable to meet your needs.? e. The Company succeeding Woodbine as manager of SVE has issued three notices of discharge to Admitted Residents, to date, on the basis that ?the care [these residents] require[d] exceed[ed] [that] which the home is licensed [to f. As a result of the issuance of these discharge notices, as well as the potential that more notices of discharge may be issued to Admitted Residents in the future, farmlies of Admitted Residents experienced and experience uncertainty and anxiety as to whether their loved ones will, in fact, be able to ?age in place? and receive ?end of life 'care? at the facility. 25. The Attorney General alleges that the above conduct constitutes unfair and deceptive acts and practices under 9 V.S.A. 2453. ASSURANCES AND RELIEF 26. In lieu of instituting an action or proceeding against Woodbine, the Attorney General and Woodbine are willing to accept this AOD pursuant to 9 V.S.A. 2459. Agreeing to the 5 The AGO does not allege that the notices of discharge referenced in 24(d) were improperly issued per RCH Rules. Whether and to What extent these notices were issued in conformity said rules is outside the scope ofthis ADD. 7 terms of this AOD for the purpose of settlement does not constitute an admission by Woodbine to 'a violation of any law, rule, or regulation. Accordingly, the parties agree as follows: Injtmetive Relief 27. Henceforth, neither Respondent nor its shareholders shall conduct business in Vermont either as the owner or operator/manager of a long-term care ?facility? as de?ned in 33 V.S.A: 7102(2), including through any subsidiaries or af?liates. Monetary Payments 28. Respondent shall make a monetary payment of be allocated accordingly: a. By no later than February 1, 2020, Respondent Woodbine shall cause to be paid $62,000 to the State of Vermont. ReSpondent shall make payment by check to the ?State of Vermont? and send payment to: Jamie Renner, Assistant Attorney General, Of?ce of the Attorney General, 109 State Street, Montpelier, Vermont 05609. b. Within 30 days of the later of signing this AOD or Woodbine receiving from the Attorney General?s Of?ce the list of consumers referenced in 1] 28(b)(i) below, Respondent Woodbine shall cause to be paid $1,000 in restitution to each of the consumers identi?ed on said list ($48,000 in total). i. The Attorney General?s Of?ce shall provide Woodbine with a list (via electronic Excel Spreadsheet) of the 48 consumers who served as the Admitted Residents? respective Responsible Parties (per these Admitted Residents? SVE Residency Agreements)'by ?rst name, last name, and last known address (each in distinctive columns). ii. iv. To satisfy its obligations pursuant to 28(b), Woodbine shall cause the folloWing to occur: . 1. Issue one check for $1,000 to each consumer identi?ed in the 1] 28(b)(i) list, paid to the order of each said consumer as named in said list; 2. Each such check shall have a deposit deadline of 90 days ?om the date of issuance; 3. Mail each such check, along with the explanatory letter attached hereto as Exhibit. A (and only said letter), to each such Consumer?s last known address per the 1} 28(b)(i) list. Within 30 days of the later of signing this AOD and Woodbine receiving from the Attorney General?s Of?ce the 11 28(b)(i) list, Woodbine shall confirm to the Attorney General?s Office that it has issued and mailed the payments per 28(b)(ii). As soon as practicable, but no later than 180 days after the later of signing this AOD and (2) Woodbine receiving from the Attorney General?s Of?ce the 28(b)(i) list, Woodbine shall mail or email to the Attorney General?s Of?ce: 1. A single check, payable to ?State of Vermont,? in the total dollar amount of all outstanding amounts (checks to consumers identi?ed in the 1[ 28(b)(i) list that were uncashed after 90 days of their issuance or returned to Woodbine); and 2. A list (in electronic Excel format) of the consumers identi?ed in the $1 28(b)(i) list whose checks were not cashed or were returned to Woodbine, which list shall set out the ?rst and last names of said consumers in distinct ?elds or Columns. 0. By no later than February 1, 2020, Respondent Woodbine shall cause to be paid $10,000 on a cy pres basis to the Vermont Chapter of the Alzheimer?s Association Respondent shall make payment by check to ?Alzheimer?s Association, Vermont Chapter? and mail payment to: ?Grace Gilbert-Davis, Executive Director, Alzheimer?s Association - Vermont Chapter, 300 Cornerstone Driver, Suite 130, Williston, VT, 05495.? Woodbine and the Attorney General intend for said funds to be utilized by AA-VT for the sole and restriCted purpose of its statewide Care and Support Program initiatives for individuals impacted by Alzheimer's Disease and related dementias. OTHER TERMS 29. Respondent Woodbine agrees that this AOD shall be binding on it, and its successors and assigns. 30, The Attorney General for himself and his of?ce and the State of Vermont, for and in consideration of the sum of the payments cited above and other good and valuable consideration, the receipt, suf?ciency and adequacy of which it irrevocably acknowledges, to it paid hereby remise, release and forever discharge Woodbine Senior Living, LLC and all of its respective past, present and future shareholders, directors, managers, partners, of?cers, members, employees, attorneys, representatives, masters, principals, owners, agents, 10 servants, af?liates, parents, subsidiaries, related companies and persons, insurers and all of their respective administrators, predecessors, heirs, successors and assigns (collectively the from any and all manner of claim and claims, action and actions, cause and cauSes of action, Suits, damages, judgments, executions, liabilities, losses, expenses (including legal fees), and demands whatsoever, in law or in equity, including, but not limited to, past, present and future claims, whether known of unknown, existing or inchoate, which the State of Vermont had, now has, or hereafter may have against the RELEASED PARTIES related to the conduct and/or omissions described in the Background section prior to the date of this AOD and the Civil Investigative Demands serVed on Woodbine. I 31. This Release shall not be construed as an admission of liability in any manner whatsoever on the part of the RELEASED PARTIES. 32. The Superior Court of the State of Vermont, Washington Unit, shall have jurisdiction over this AOD and the parties hereto for the purpose of enabling the Attorney General to apply to this Court at any time for orders and directions as may be necessary or appropriate to enforce compliance with or to address violations of this AOD. 33. Acceptance of this AOD by the Vermont Attorney General?s Of?ce Shall not be deemed approval by the Attorney General of any practices or procedures of Respondent not required by this AOD, and Respondent shall make no representation to the contrary. NOTICE 34. Respondent may be located at: Woodbine Senior Living LLC 900 Osprey Street Venice, FL 34285 11 35-. Respondent shall notify the Attorney General of any change of: business name" or address within 2-0. business days; SIGNATURE Inlieu of instituting an action or- againSt Woo dbine Senior Living, LLC, the O?iee ofthe Attorney General, pursuant to 9. 2459,: accepts this Assumnee of Discontinuance; By" signing below, Respondent voluntarily enters into. this Assurance of Discontinuance; DATED at [If 1 ?Uri-uni VMM this. '5 1 day of 96wa 2019' Authorized agent of odbi'ne Senior Living,- LLC ACCEPTED on behalf'of the :Attomey General: DATED at; Montpelier,? Vermont-this '3 day of Dal/M 2019. STATE OF VERMONT THOMAS J. ATTORNEY GENERAL 4, K, 'e Renner Assistant Attorney General: Of?ce of Attorney,r General 109 State Street Montpelier, Vermont 05.6.09 jamielenner@vermont.gov (802) 828-5947 12 Exhibit A [Miles Stockbridge Letterhead] [Date] Re: Woodbine Senior Living LLC settlement Dear Vermont consumer: This law ?rm represents Woodbine Senior Living, LLC. You have been identi?ed as a consumer who served as the ?Responsible Party? for an individual admitted to Spring Village at Essex in Essex, Vermont between?April l, 2016, and October 31, 2017 (the ?Relevant Period?), for other than a ?respite stay.? During the Relevant Period, SVE was managed by Woodbine Senior Living LLC (?Woodbine?). As a result of a settlement with the Vermont Attorney General?s Of?ce, Woodbine is providing the enClosed payment to you. If you accept this payment, you will waive whatever rights, if any, that you may possess to pursue any and all claims against Woodbine and its agents, owners, and of?cers relating'to the subject of the settlement. You may decline to accept the check by returning or mailing it to the attention of Paul D. Rose, Jr. Esq. of Miles Stockbridge, P.C., ?rst class-postage, within 90 days of the date of this letter, at the following address: Miles Stockbridge RC. 30 West Patrick Street, Suite 600 Frederick, MD 21701 For a copy of the settlement agreement between the Vermont Attorney General?s Of?ce and Woodbine, please visit the Vermont Attorney General Of?ce?s website at wagoyennontgov or call the Vermont Attorney General?s Consumer Assistance Program at 800-649-2424 or 802-656-3183. Sincerely, Paul D. Ro?se, Jr. Esq. Legal Counsel for Woodbine Senior Living, LLC Enc. l3