Cook Willow Health Center v. Judy Andrien (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

The plaintiff, Cook Willow Health Center (nursing home), brings this action against the defendant, Judy Andrien, claiming a breach of contract.   The nursing home alleges that it admitted Ms. Andrien's mother, Helen Roman, to its facility, that it rendered skilled nursing services to her, and that there is an unpaid balance due for those services.   It further alleges that Ms. Andrien signed a written agreement as Ms. Roman's “responsible relative,” obligating herself to take certain steps to make sure that the nursing home was paid for the care it provided out of Ms. Roman's assets or by Medicaid, and that she failed to perform her obligations under that agreement;  specifically, she neglected (1) to use her mother's assets to pay in a timely manner the balance due for the services rendered and (2) to forward her mother's applied income to the plaintiff in a timely manner in order to obtain Medicaid assistance, pursuant to the requirements of the Department of Social Services.   The nursing home appends a copy of the written agreement to the complaint.¹

Before the court is Ms. Andrien's motion to strike on the ground that the written agreement is void because it violates 42 U.S.C. § 1396r(c)(5)(A)(ii) (2010) and General Statutes § 19a–550(b)(26) in that it contained a provision making Ms. Andrien personally liable for expenses for the care of her mother.   The nursing home objects, arguing that it is not suing to enforce a third-party guaranty, and that there is no such provision in the agreement.

Under Practice Book § 10–39(a), “[w]henever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

Further, Practice Book § 10–50 provides in relevant part:  “Facts which are consistent with [the allegations of the complaint] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.   Thus ․ illegality not apparent on the face of the pleadings ․ must be specially pleaded.”   Moreover, “[w]here the legal grounds for ․ a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”  (Internal quotation marks omitted.)  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).   Accordingly, unless it is apparent from the facts alleged by the nursing home, including the terms of the agreement appended to the complaint, that the agreement violates the federal and state statutes cited by Ms. Andrien, the court must deny the motion to strike.

Section 1396r(c)(5)(A) provides in relevant part:  “With respect to admissions practices, a nursing facility must ․ (ii) not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility ․” (Emphasis added.)   Connecticut has a similar provision, § 19a–550(b), which provides in relevant part:  “There is established a patients' bill of rights for any person admitted as a patient to any nursing home facility or chronic disease hospital ․ The patients' bill of rights shall provide that each such patient ․ (26) on or after October 1, 1990, shall not be required to give a third-party guarantee of payment to the facility as a condition of admission to, or continued stay in, the facility ․” (Emphasis added.)

In other words, the cited provisions make it illegal for a nursing home such as the plaintiff here to refuse to admit a potential resident unless a third-party guarantee of payment is made.   Neither prohibits, however, third-party guarantees in a nursing home contract under all circumstances.   Moreover, courts have held that § 1396r(C)(5)(A)(ii) does not prohibit voluntary third-party guarantee contracts.   See, e.g., Podolsky v. First Health Care Corp., 50 Cal.App.4th 632, 646, 58 Cal.Rptr.2d 89 (1996) (“Neither federal nor state law prohibits nursing homes from voluntarily obtaining the signature of a willing responsible party or third party guarantor when admitting nursing home residents.   Instead, the applicable statutes make it unlawful to require third party guarantees as a condition of admission or continued residence in such facilities ․ Had Congress intended to forbid third party guarantees under any circumstances, we presume it would have said so.”  [Citations omitted.] );   Pioneer Ridge Nursing Facility Operations, LLC v. Ermey, 41 Kan.App.2d 414, 419, 203 P.3d 4 (2009) (“Next, we consider that part of the trial court's holding that stated [that the nursing home could not require a third party guarantee as a condition of admission under federal law] ․ This statement of the trial court is correct.   Nevertheless, the trial court's holding fails to account for the fact that [Ms. Andrien] could have voluntarily made himself responsible for any valid charges incurred by his mother.  [Emphasis in original;  internal quotation marks omitted.] ).

The provision in the agreement of which Ms. Andrien complains, section II.9(5)(b), states:  “If the resident (or the resident's spouse, if the resident is married) has made any gifts of $1,000 or more to anyone other than the resident's spouse (if any) or transfers to an irrevocable Trust on or after February 8, 2006, the resident and responsible party specifically acknowledge and agree that the responsible party is personally liable for the cost of care and services for the resident in accordance with the terms of this Agreement during the period of ineligibility for Medicaid assistance that will result from any such gift or transfer.”

“The responsible party may also be personally liable for his or her failure to fulfill other promises made in this Agreement, as provided in Section IV of this Agreement.”

Ms. Andrien relies on Sunrise Healthcare Corp. v. Azarigian, 76 Conn.App. 800 (2003), for the proposition that the use of the term “personally liable” in a nursing home admission contract per se violates the federal and state statutes.  Sunrise Healthcare does not stand for such a blanket proposition.   In that case, the Appellate Court held that the contract before it did not violate § 1396r because (1) it had a provision expressly prohibiting personal liability of the responsible party for the payments made from the resident's account ² and (2) it merely obligated the responsible party to use the assets of the resident to make the payments.  Id., 808.   The court did not hold that a responsible party could never have any personal liability under a nursing home contract;  in fact, it held that the responsible party could be liable under the contract for mishandling the resident's assets.   See id., 808–09.   The court also did not hold that the voluntary making of a third-party guarantee was illegal.

The court finds that, if the complained of provision violates either § 1396r(c)(5)(A)(ii) or § 19a–550(b)(26), such violation is not apparent on the face of the complaint or the attached agreement.   There is nothing in the complaint or in the agreement attached to it indicating that Ms. Andrien or her mother was required to agree to such a provision as a condition of the nursing home's admission of Ms. Andrien's mother as a resident.   If Ms. Andrien claims that such was the case, she must plead it and prove it.³

Accordingly, the motion to strike is DENIED.

BY THE COURT

Joseph M. Shortall

FOOTNOTES

FN1. This is permissible under Practice Book § 10–29(a).   Moreover, the terms of the agreement are additional allegations of the complaint because “[a] complaint includes all exhibits attached thereto.”  (Internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007)..  FN1. This is permissible under Practice Book § 10–29(a).   Moreover, the terms of the agreement are additional allegations of the complaint because “[a] complaint includes all exhibits attached thereto.”  (Internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).

FN2. The agreement here has a similar provision.   See IV, ¶ 2 of the Resident Admissions Agreement attached to the complaint..  FN2. The agreement here has a similar provision.   See IV, ¶ 2 of the Resident Admissions Agreement attached to the complaint.

FN3. The court notes that Ms. Andrien disclosed as one of her defenses that “the contract at issue is void and unenforceable.”   See # 102 in the file..  FN3. The court notes that Ms. Andrien disclosed as one of her defenses that “the contract at issue is void and unenforceable.”   See # 102 in the file.

Shortall, Joseph M., J.T.R.