(dissenting) — Although it refers to the interpretation by the Department of Social and Health Services (DSHS) of the contract between Pinehurst and DSHS as an "oversimplified approach", the majority opinion demonstrates that, considered alone, the contract clearly and unambiguously does delineate the rights and duties of the parties upon termination. These rights and duties spelled out in the contract (1) required Pinehurst to continue the same level of care to a recipient as long as the recipient remained in Pinehurst; (2) obligated DSHS to continue payment at the same classification (here skilled nursing home care) for at least 30 days with a proviso it "may decide to continue payment for further periods during which it is affecting relocation of patients"; and (3) obligated DSHS to make a "reasonable effort" to remove recipients from the facility "consistent with the best interests of the Recipient's health and welfare." (Italics mine.)
Nonetheless, the majority claims the Attorney General "concedes" the provisions of WAC 388-88-100 are incorporated into the contract and that when the regulations are read together with the contract a higher duty is placed on DSHS beyond just a "reasonable effort" to relocate. An analysis of the majority opinion shows, however, that WAC 388-88-100 has been cut and sliced without regard to context in order to reach this result.
*644The majority quotes WAC 388-88-100(3) (f) (ii) to prove its point:
[¶] (ii) Arrangements for relocation will be the responsibility of the department placement personnel.
What it neglects to do is quote this provision in context:
(f) The medical care recipient has an unlimited right to request relocation and to select the nursing home he/ she desires for placement. If this selection is available and appropriate to the medical care recipient's needs, relocation shall be arranged.
(i) The medical care recipient or the recipient's next of kin, guardian or responsible party must request such a move in writing.
(ii) Arrangements for relocation will be the responsibility of the department placement personnel.
Paragraph (f) (ii) refers to a specific situation in (f) — when a recipient requests relocation. It does not deal with the general question of relocation or of relocation after decertification, and has nothing to do with the circumstance in this case.
WAC 388-88-100(3) states that
If the services being provided to a medical recipient are not commensurate with the recipient's needs, the department is responsible for initiating and facilitating recipient relocation.
Again, this provision of WAC does not refer to a relocation generally but only to relocation under a specific circumstance: when the services being provided are not commensurate with the recipient's need. In this case the question was one of certification rather than of services provided. Indeed, it is clear from the record that plaintiff was both obligated to and did continue to provide skilled • nursing services as required under its contract with DSHS. The issue was whether defendant was required under the contract to pay for these services after plaintiff became decertified. WAC 388-88-100(3) is inapplicable.
WAC 388-88-100(1) provides:
The department is responsible for ensuring that indi*645vidual medical care recipient's needs are identified and met, as provided by state and federal regulations. It is therefore responsible for ensuring that each medical care recipient is placed in a facility which is certified as capable of meeting the needs of the recipient and ensuring that necessary transfers are accomplished with a minimum of trauma to the recipient.
This section of WAC does not refer to any obligation of DSHS to relocate but merely says that if there are "necessary transfers" they must be done "with a minimum of trauma to the recipient."
As this analysis demonstrates, the cited portions of WAC 388-88-100 say nothing about relocation generally, nor do they speak to the circumstances in this case. The real problem which concerns the majority becomes apparent in the last paragraph of the opinion: "Nothing in the contract suggests that patients under the care of DSHS were to receive free care by Pinehurst." This sentence is freighted with the implication that Pinehurst would not be compensated for the skilled nursing care it provided the recipients during the time it was decertified. Nothing could be further from the truth.
Since the majority has applied a strict standard as to the binding nature of the statement in the brief of defendant that "the Provider Agreement incorporates by reference WAC 388-88-100", an equally strict standard should be applied to the statements of plaintiff. In the memorandum in opposition to defendants' motion for summary judgment, attorneys for plaintiff state:
The [superior] court correctly reasoned that if the hospital was not recompensed for the services rendered, that it would have to absorb the cost itself and in turn pass on these unreimbursed costs to non-indigent persons who utilize its facility.
(Italics mine.) While this distribution of costs may be unfortunate, it hardly places plaintiff in the position of a lonely entrepreneur bereft of funds who is unable to recover money due from the State.
The public policy behind the termination requirements *646in the contract is obvious. If DSHS were required to pay to a facility which had been decertified, there would be nothing to prevent an unscrupulous nursing home operator from becoming certified, failing to maintain the home's standards — which cost money — and then receiving full compensation from DSHS. That is exactly the scenario which the majority has supplied to any unscrupulous operator in the nursing home industry. The contract and the regulations prevent this. Plaintiff's own words show it lost no money nor was care withheld from the recipients. Only the taxpayers suffer under the misreading by the majority of the contract and the regulations.
Neither the contract nor WAC 388-88-100, whether read separately or together, places a duty on DSHS either actually to relocate or to pay the plaintiff after 30 days from the date of decertification.
I dissent.
Dimmick, J., concurs with Dolliver, J.