Wednesday, June 18, 2014

What Happens to Upfront Fees Paid by Residents of CCRCs -- Especially in Bankruptcy Court?

Last week's news of a Chapter 11 Bankruptcy proceeding in the Texas-based senior living company Sears Methodist Retirement Systems, Inc. (SMRS)  has once again generated questions about "entrance fees" paid by residents at the outset of their move to a Continuing Care Retirement Community (CCRC).  CCRCs typically involve a tiered system of payments, often including a substantial (very substantial) upfront fee, plus monthly "service" fees.  The upfront fee will carry a label, such as "admission fee" or "entrance fee" or even entrance "deposit," depending on whether and how state regulations require or permit certain labels to be used. 

As a suggestion of the significance of the dollars, a resident's key upfront fee at a CCRC operated by SMRS reportedly ranged from $115,000 to $208,000. And it can be much higher with other companies.  So, let's move away from the SMRS case for this "blog" outline of potential issues with upfront resident fees.

Even without talking about bankruptcy court, for residents of CCRCs there can be a basic level of confusion about upfront fees. In some instances, the CCRC marketing materials will indicate the upfront fee is "refundable," in whole or in part, in the event the resident moves out of the community or passes away.  Thus, residents may assume the fees are somehow placed in a protected account or escrow account.  In fact, even if the upfront fee is not "refundable," when there is a promise of "life time care," residents may assume upfront fees are somehow set aside to pay for such care. How the facility is marketed may increase the opportunity for resident confusion. Residents are looking for reassurances about the costs of future care and how upfront fees could impact their bottom line. That is often why they are looking at CCRCs to begin with.  "Refundable fees" or "life care plans" can be important marketing tools for CCRCs. But discussions in the sales office of a CCRC may not mirror the "contract" terms.

One of the most important aspects of CCRCs is the "contract" between the CCRC and the resident. First, smaller "pre move-in" deposits may be paid to "hold" a unit, and this deposit may be expressly subject to an "escrow" obligation.  But,  larger upfront fees -- paid as part of the residency right -- are typically not escrowed. It is important not to confuse the "escrow" treatment of these fees.  Of course, the "hold" fee is not usually the problem.  It is the larger upfront fees --such as the $100k+ fees at SMRS -- that can become the focus of questions, especially if a bankruptcy proceeding is initiated.

The resident's contract requires very careful reading, and it will usually explain whether and how a CCRC company will make any refund of large upfront admission fees.  In my experience of reading CCRC contracts,  CCRCs rarely "guarantee" or "secure" (as opposed to promise) a refund, nor do they promise to escrow such upfront fees for the entire time the payer resides at the CCRC.  In some states  there is a "reserve" requirement (by contract or state law) for large upfront fees whereby the CCRC has a phased right to release or use the fees for its operation costs.  Thus, the contract terms are the starting place for what will happen with upfront fees. 

Why doesn't state regulation mandate escrow of large upfront fees?  States have been reluctant to give-in to pressure from some resident groups seeking greater mandatory "protection" of their upfront fees.  There's often a "free enterprise, let the market control" element to one side of regulatory debates. On the other side, there is the question of whether life savings of the older adult are proper targets for free enterprise theories.  Professor Michael Floyd, for example, has asked, "Should Government Regulate the Financial Management of Continuing Care Retirement Communities?"  

My research has helped me realize how upfront fees are a key financial "pool" for the CCRC, especially in the early years of operation where the developer is looking to pay off construction costs and loans.  CCRCs want -- and often need -- to use those funds for current operations. and debt service.  Thus, they don't want to have those fees encumbered by guarantees to residents. They take the position they cannot "afford" to have that pool of money sitting idle in a bank account, earning minimal interest.  This is not to say the large entrance fees will be "misspent," but rather, the CCRC owners may wish to preserve flexibility about how and when to spend the upfront fees.

The treatment of "upfront fees" paid by residents of CCRCs also implicates questions about application of accounting and actuarial rules and principles. That important topic is worthy of a whole "law review article" -- and frankly it is a topic I've been working on for months. 

In additional to looking for actuarial soundness, analysts who examine CCRCs as a matter of academic interest or practical concern have looked at whether CCRC companies and lenders may have a "fiduciary duty" to older adults/residents, a duty that is independent of any contract law obligations. Analysts further question whether a particular CCRC's marketing or financial practices violate consumer protection or elder protection laws. 

There can also be confusion about what happens during a Chapter 11 process. First, during the Chapter 11 Bankruptcy process, a facility may be able to honor pre-bankruptcy petition "refund" requests or requests for refund of fees for a resident who does not move into the facility.  Second, to permit continued operation as part of the reorganization plan, a facility will typically be permitted by the Court to accept new residents during the Chapter 11 proceeding and those specific new residents will have their upfront fees placed into a special escrow account, an account that cannot be used to pay the pre-petition debts of the company. 

But what about the upfront fees already paid pre-petition by residents who also moved in before the bankruptcy petition?  Usually those upfront fees are not escrowed during the bankruptcy process.  Indeed, other "secured" creditors could object to refunds of "unsecured" fees. The Bankruptcy Court will usually issue an order -- as it did in SRMS's bankruptcy court case in Texas last week -- specifying how current residents' upfront fees will be treated now and in the future.  A bit complicated, right?  (And if I'm missing something please feel free to comment.  I'm always interested in additional viewpoints on CCRCs.  Again, the specific contract and any state laws or regulations governing for handling of fees will be important.)

Of course, this history is one reason some of us have been suggesting for years that prospective residents should have an experienced  lawyer or financial consultant help them understand their contracts and evaluate risks before signing and again in the event of any bankruptcy court proceeding. "Get thee to a competent advisor."   See also University of New Mexico Law Professor Nathalie Martin's articles on life-care planning risks and bankruptcy law. 

As I mentioned briefly in writing last week about the SMRS Chapter 11 proceeding, CCRC operators have learned -- especially after the post-2008 financial crisis -- that the ability of a CCRC to have a viable "second chance" at success in attracting future residents will often depend on the treatment of existing residents. Thus, one key question in any insolvency will be whether the company either (a) finds a new "owner" during the Chapter 11 process or (2) is able to reorganize the other debts, thereby making it possible for the CCRC company to "honor" the resident refund obligations after emerging from the Chapter 11 process.

During the last five years we have seen one "big" default on residents' upfront. refundable entrance fees during the bankruptcy of Covenant at South Hills, a CCRC near Pittsburgh.  A new, strong operator eventually did take over the CCRC, and operations continued. However, the new operator did not "assume" an obligation to refund approximately $26 million in upfront fees paid pre-petition by residents to the old owner. In contrast, Chapter 11 proceedings for some other CCRCs have had "gentler" results for residents, with new partners or new financial terms emerging from the proceedings, thereby making refunds possible as new residents take over the departed residents' units. 

For more on how CCRC companies view "use" of upfront fees, here's a link to a short and clear discussion prepared by DLA Piper law firm, which, by the way, is the law firm representing the Debtor SMRS in the Texas Chapter 11 proceeding. 

http://lawprofessors.typepad.com/elder_law/2014/06/what-happens-to-upfront-fees-paid-by-residents-of-ccrcs-especially-in-bankruptcy-court.html

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The range of refundable fees cited in this post for SMRS doesn’t go high enough.
I believe most Residency Agreements (contracts) nowadays state upon vacating the independent living unit, the predecessor occupant (or his/her estate) has to wait until a new resident occupies the unit. The fat check written by the new resident to move in is supposed to provide the funds to refund the departed occupant. The refund is to be made within 30 days of the new resident coming on board. Problems can occur when an economic downturn slows the pipeline of incoming residents. If executive management drops the entrance fee for newcomers to attract new residents, what if the new “price” isn’t enough to fund the expected refund? I think many faith-based CCRCs pray about the upside down situation, hoping the ship will right itself someday. Unfortunately astute financial advice wasn't sought until too late -- or -- obviously, the model was flawed from the get-go. Expert actuarial expertise should be involved in this industry so that CCRCs are better prepared to fund their obligations, both present and future. In the case of SMRS, we're talking PAST, present, and future obligations.
For a CCRC going through Chapter 11, the incoming deposits and hefty entrance fees for post-petition move-ins may be escrowed via a court decision. This is to keep prospects from being too scared to even consider the CCRC(s) in question. That new lifeblood is key. Marketing can show them how their money is 100% risk free. But what about the departed resident who is awaiting the refund for the unit that goes to someone who is willing to take a chance? If the new resident's fee is escrowed, where does the refund come from? I think they’ll have to wait until the bankruptcy case is settled, hoping to goodness they don't have the experience of The Covenant at South Hills. This also means they must make sure the Court knows of their existence and the potential extent of the personal loss.
There is another potential misconception on the part of residents in a “refund CCRC.” If someone permanently moves to the CCRC’s Health Care Facility, thereby vacating the independent unit, he or she cannot merely say, “Just draw on the entrance fee refund you owe me.” No …. one must start paying those bills while awaiting the “sale” of their old unit. In Type C contract CCRCs, the Health Care costs are the on-going “market” or street rate.
Stay tuned.

Posted by: Jennifer Young | Jun 19, 2014 5:23:19 AM

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