On Wednesday, October 14, 2020, Governor Inslee extended his Proclamation prohibiting eviction and other housing practices until December 31, 2020. However, as a result of WHCA’s continued efforts, the proclamation had some important clarifications for long term care providers.
The revised Proclamation states that:
The preceding prohibitions do not apply to operators of long term care facilities licensed or certified by the Department of Social and Health Services to prevent them from taking action to appropriately, safely, and lawfully transfer or discharge a resident for health or safety reasons, or a change in payer source that the facility is unable to accept, in accordance with the laws and rules that apply to those facilities. Additionally, the above prohibition against increasing, or threatening to increase, the rate of rent for any dwelling does not apply to customary changes in the charges or fees for cost of care (such as charges for personal care, utilities, and other reasonable and customary operating expenses), or reasonable charges or fees related to COVID-19 (such as the costs of PPE and testing), as long as these charges or fees are outlined in the long term care facility’s notice of services and are applied in accordance with the laws and rules that apply to those facilities, including any advance notice requirement.
Based upon our analysis, long term care providers can:
- Transfer or discharge a resident for health and safety reasons;
- Transfer or discharge a resident if there has been a change in payer source and the facility does not accept that payer source. For example, if a resident converts to Medicaid and the facility does not have a Medicaid contract. In such circumstances an appropriate, safe and lawful transfer/discharge is allowed;
- Increase charges for cost of care due to increased care needs; and
- Impose reasonable charges or fees related to COVID-19 costs (such as costs for PPE and testing).
We would note that provisions for increased charges directly related to increased care needs should already be outlined in the long term care facility’s notice of services and would be applied relatively easily. However, the imposition of reasonable charges or fees related to Covid-19 could more problematic given that these charges or fees need to be “outlined in the long term care facility’s notice of services”. The first step in addressing this issue would be to ensure that the charge or fee is “reasonable.” This could be approached by determining the overall costs of COVID related expenses and averaging them out. More importantly, if your resident agreement or similar documentation does not provide for increased charges or fees that can reasonably be related to COVID, consideration should be given to providing sufficient notice to residents before imposing any unaddressed charges or fees.
In addition to the modification of the proclamation to specifically addressing long term care, additional changes/clarifications to the Governor’s Proclamation should be kept in mind. These changes/clarifications provide:
- Protections are not intended to apply to occupants introduced into a dwelling who are not listed on a lease and remain or “holdover” after the tenant of record has vacated unless the landlord has accepted payment from the holdover occupant;
- Eviction or termination of tenancy can be effected if it is the property owner's intent to sell the property or personally occupy the premises;
- Property owners are allowed to engage in customary and routine communications with residents notifying them of rent that is due, lease violations or community events, news and updates;
- Rent increases are prohibited until the expiration of the Governor’s proclamation, but a notice of a rent increase taking effect after the expiration can be provided if the increase is specified in the terms of the existing resident agreement and the notice does not contain any threatening or coercive language.
If you have questions or concerns please email Robin Dale or call him at (800) 562-6170 extension 101.