Florida Senate - 2017                                    SB 1430
       
       
        
       By Senator Lee
       
       
       
       
       
       20-00427C-17                                          20171430__
    1                        A bill to be entitled                      
    2         An act relating to continuing care contracts;
    3         providing a short title; amending s. 651.011, F.S.;
    4         defining and redefining terms; amending s. 651.013,
    5         F.S.; revising applicability of certain provisions of
    6         the Florida Insurance Code as to providers of
    7         continuing care and continuing care at-home; providing
    8         legislative intent; amending s. 651.014, F.S.; making
    9         technical changes; amending s. 651.019, F.S.;
   10         requiring all new financing or refinancing to be in
   11         the best interest of facilities and their residents;
   12         revising requirements for providers relating to
   13         financing and refinancing; amending s. 651.021, F.S.;
   14         revising requirements for obtaining a certain written
   15         approval from the Office of Insurance Regulation
   16         relating to construction or marketing for an expansion
   17         of a certificated facility; revising criteria used by
   18         the office in determining whether to approve an
   19         expansion; requiring certain entrance fees and
   20         reservation deposits to be held according to certain
   21         escrow requirements; amending s. 651.022, F.S.;
   22         revising the required information on applications for
   23         provisional certificates of authority; revising
   24         requirements for amending such applications; revising
   25         construction and the office’s procedures for reviewing
   26         such applications; amending s. 651.023, F.S.; revising
   27         the information required to be provided to the office
   28         for the issuance of certificates of authority;
   29         revising construction; revising the office’s
   30         procedures for reviewing applications for such
   31         certificates; revising the office’s requirements for
   32         issuing such certificates; amending s. 651.024, F.S.;
   33         revising requirements for persons who seek to acquire
   34         or assume specified ownership, possession, or control
   35         over providers or providers’ assets; authorizing such
   36         persons to rebut presumptions of control by making
   37         specified filings with the office; creating s.
   38         651.0245, F.S.; providing application requirements and
   39         procedures for the simultaneous acquisition of
   40         facilities and the issuance of certificates of
   41         authority; specifying conditions under which the
   42         office may disapprove acquisitions or must approve
   43         acquisitions; prohibiting the office from approving
   44         certain applications; authorizing persons to rebut
   45         presumptions of control by making specified filings
   46         with the office; defining terms; providing
   47         construction; authorizing the Financial Services
   48         Commission to adopt rules; creating s. 651.025, F.S.;
   49         prohibiting certain persons who served in specified
   50         capacities with certain insolvent facilities or
   51         providers from thereafter serving in such capacities
   52         under certain circumstances; amending s. 651.0261,
   53         F.S.; requiring providers to file specified quarterly
   54         statements at specified intervals; authorizing the
   55         office to waive the requirement under certain
   56         circumstances; revising the office’s authority to
   57         require, under certain circumstances, providers and
   58         facilities to file monthly statements and certain
   59         other information; authorizing the commission to adopt
   60         rules; creating s. 651.0271, F.S.; specifying
   61         requirements for actuarial opinions by providers, if
   62         required by the office; specifying the circumstances
   63         under which the office may require a provider to
   64         submit an actuarial opinion; amending s. 651.033,
   65         F.S.; revising requirements for escrow accounts that
   66         are required for specified funds; prohibiting escrow
   67         agents from releasing or permitting the transfer of
   68         funds under certain circumstances; creating s.
   69         651.034, F.S.; specifying contractual liability
   70         reserve requirements for providers; specifying
   71         allowable investments for such reserves; requiring
   72         providers to submit to the office actuarial opinions
   73         and actuarial studies at specified intervals;
   74         providing requirements for such opinions and studies;
   75         authorizing disciplinary actions by the office;
   76         authorizing the commission to adopt rules; amending s.
   77         651.035, F.S.; revising, as of a specified date, the
   78         minimum liquid reserve requirements of providers;
   79         providing applicability; authorizing the office to
   80         order the immediate transfer of specified funds under
   81         certain circumstances; authorizing providers to
   82         withdraw funds from certain debt service reserves
   83         under certain circumstances; providing procedures for
   84         the office to provide approval or disapproval for such
   85         withdrawals; conforming provisions to changes made by
   86         the act; creating s. 651.036, F.S.; defining terms;
   87         requiring providers to obtain the office’s approval
   88         before paying certain dividends or distributions of
   89         assets; providing notice requirements for providers
   90         intending to pay such dividends or distributions;
   91         specifying conditions under which the office may
   92         approve such dividends or distributions; providing
   93         criminal penalties for certain acts by persons of the
   94         provider relating to dividends or distributions;
   95         authorizing administrative actions by the office;
   96         creating s. 651.043, F.S.; defining the term
   97         “management”; providing requirements for contracts for
   98         management; providing requirements and procedures for
   99         providers to notify the office of certain changes in
  100         management; providing procedures for the office’s
  101         review and approval or disapproval of such changes;
  102         specifying conditions under which the office may
  103         disapprove new management and order providers to
  104         cancel such contracts; requiring disapproved
  105         management to be removed within a specified timeframe;
  106         authorizing disciplinary action by the office under
  107         certain circumstances; requiring providers to
  108         immediately remove management under certain
  109         circumstances; providing for construction; amending s.
  110         651.051, F.S.; requiring all records and assets of
  111         providers to be maintained in this state; providing
  112         for construction relating to certain electronic
  113         storage of records; amending s. 651.055, F.S.;
  114         revising requirements for continuing care contracts;
  115         conforming a cross-reference; specifying the required
  116         timeframe for a certain refund; creating s. 651.058,
  117         F.S.; specifying grounds upon which the office may
  118         disapprove continuing care contracts; creating s.
  119         651.064, F.S.; prohibiting persons from unfair and
  120         deceptive trade practices relating to continuing care
  121         contracts; providing civil penalties; specifying such
  122         unfair and deceptive trade practices; authorizing
  123         certain trade practices; providing for construction;
  124         amending s. 651.071, F.S.; revising construction
  125         relating to continuing care and continuing care at
  126         home contracts in the event of receivership or
  127         liquidation proceedings against providers; amending s.
  128         651.091, F.S.; revising disclosure requirements for
  129         continuing care facilities and certain providers;
  130         conforming a cross-reference; amending s. 651.105,
  131         F.S.; revising applicability of certain provisions of
  132         the Florida Insurance Code relating to examinations
  133         and investigations; authorizing the office, as of a
  134         specified date, to examine providers and their
  135         affiliates for a specified purpose; defining the term
  136         “enterprise risk”; creating s. 651.1055, F.S.;
  137         requiring providers to cooperate with the office,
  138         including responding to correspondence and providing
  139         certain information; amending s. 651.106, F.S.;
  140         revising the office’s authority in certain
  141         disciplinary actions; revising grounds for such
  142         actions against applicants or providers; creating s.
  143         651.1065, F.S.; prohibiting certain persons of
  144         impaired or insolvent continuing care retirement
  145         communities from permitting such communities to
  146         solicit or accept new continuing care contracts under
  147         certain circumstances; providing a criminal penalty;
  148         amending s. 651.107, F.S.; revising the period of
  149         suspension of certificates of authority; revising
  150         certain conditions under which such suspensions are
  151         rescinded and the certificates are reinstated;
  152         amending s. 651.114, F.S.; revising procedures and
  153         requirements of providers and the office in
  154         delinquency proceedings of providers; providing for
  155         and revising construction; revising certain authority
  156         relating to a certain petition for a court order from
  157         the office to the Department of Financial Services;
  158         revising conditions under which the department or
  159         office are vested with certain powers and duties
  160         relating to delinquency proceedings; revising notice
  161         requirements for providers in delinquency proceedings;
  162         creating s. 651.1141, F.S.; providing that certain
  163         violations constitute an immediate danger to the
  164         public health, safety, or welfare; authorizing the
  165         office to issue immediate final orders for such
  166         violations; amending s. 651.1151, F.S.; requiring
  167         providers to submit to the office contracts for
  168         administrative, vendor, or management services with
  169         certain entities; authorizing the office to disapprove
  170         such contracts under certain circumstances; deleting
  171         an obsolete date; amending s. 651.119, F.S.; providing
  172         that the department is the creditor of liquidated
  173         facilities or facilities pending liquidation for the
  174         purpose of providing certain entrance fee refunds;
  175         authorizing the office to seek voluntary contributions
  176         from and levy certain assessments against providers’
  177         contractual liability reserves; revising the limit on
  178         assessments that the office may assess from certain
  179         reserves for specified purposes; revising requirements
  180         for the office in modifying providers’ minimum liquid
  181         reserve requirements; specifying the allocation and
  182         maximum refund amounts payable to displaced residents;
  183         defining the term “entrance fee refund”; amending s.
  184         651.125, F.S.; providing a criminal penalty for a
  185         person who takes certain actions without having a
  186         valid provisional certificate of authority; making a
  187         technical change; amending s. 651.131, F.S.; revising
  188         applicability of certain limitations of judgment
  189         amounts resulting from actions under prior law;
  190         repealing s. 651.132, F.S., relating to amendment or
  191         renewal of existing contracts; amending s. 651.012,
  192         F.S.; conforming a cross-reference; providing
  193         effective dates.
  194          
  195  Be It Enacted by the Legislature of the State of Florida:
  196  
  197         Section 1. This act may be cited as the “Protecting Florida
  198  Seniors from Financial Fraud Act.”
  199         Section 2. Section 651.011, Florida Statutes, is amended to
  200  read:
  201         651.011 Definitions.—As used in this chapter, the term:
  202         (1) “Actuarial opinion” means an opinion issued by an
  203  actuary in accordance with the standards of practice adopted by
  204  the Actuarial Standards Board.
  205         (2)“Actuarial study” means an analysis addressing the
  206  current actuarial financial condition of a provider or the
  207  projected actuarial financial condition of an applicant, which
  208  is performed by an actuary in accordance with accepted actuarial
  209  principles and the standards of practice adopted by the
  210  Actuarial Standards Board, and which includes all of the
  211  following:
  212         (a) An actuarial report.
  213         (b) A statement of actuarial opinion.
  214         (c) An actuarial balance sheet.
  215         (d) A cohort pricing analysis.
  216         (e) A cash-flow projection.
  217         (f) A description of the actuarial methodology, formulas,
  218  and assumptions used in the study.
  219         (g) Other information as reasonably requested by the
  220  office.
  221         (3) “Actuary” means an individual who is qualified to sign
  222  an actuarial opinion in accordance with the American Academy of
  223  Actuaries qualification standards and who is a member in good
  224  standing of the American Academy of Actuaries.
  225         (4)(1) “Advertising” means the dissemination of written,
  226  visual, or electronic information by a provider, or any person
  227  affiliated with or controlled by a provider, to potential
  228  residents or their representatives for the purpose of inducing
  229  such persons to subscribe to or enter into a contract for
  230  continuing care or continuing care at-home.
  231         (5)(2) “Continuing care” or “care” means, pursuant to a
  232  contract, furnishing shelter and nursing care or personal
  233  services to a resident who resides in a facility, whether such
  234  nursing care or personal services are provided in the facility
  235  or in another setting designated in the contract for continuing
  236  care, by an individual not related by consanguinity or affinity
  237  to the resident, upon payment of an entrance fee.
  238         (6)(3) “Continuing Care Advisory Council” or “advisory
  239  council” means the council established in s. 651.121.
  240         (7)(4) “Continuing care at-home” means, pursuant to a
  241  contract other than a contract described in subsection (5) (2),
  242  furnishing to a resident who resides outside the facility the
  243  right to future access to shelter and nursing care or personal
  244  services, whether such services are provided in the facility or
  245  in another setting designated in the contract, by an individual
  246  not related by consanguinity or affinity to the resident, upon
  247  payment of an entrance fee.
  248         (8)(5) “Entrance fee” means an initial or deferred payment
  249  of a sum of money or property made as full or partial payment
  250  for continuing care or continuing care at-home. An accommodation
  251  fee, admission fee, member fee, or other fee of similar form and
  252  application are considered to be an entrance fee.
  253         (9)(6) “Facility” means a place where continuing care is
  254  furnished and may include one or more physical plants on a
  255  primary or contiguous site or an immediately accessible site. As
  256  used in this subsection, the term “immediately accessible site”
  257  means a parcel of real property separated by a reasonable
  258  distance from the facility as measured along public
  259  thoroughfares, and the term “primary or contiguous site” means
  260  the real property contemplated in the feasibility study required
  261  by this chapter.
  262         (10)(7) “Generally accepted accounting principles” means
  263  those accounting principles and practices adopted by the
  264  Financial Accounting Standards Board and the American Institute
  265  of Certified Public Accountants, including Statement of Position
  266  90-8 with respect to any full year to which the statement
  267  applies.
  268         (11) “Impaired” means the provider is not in compliance
  269  with the capital reserve requirement under s. 651.035(1)(c).
  270         (12)(8) “Insolvency” means the condition in which the
  271  provider is unable to pay its obligations as they come due in
  272  the normal course of business.
  273         (13)(9) “Licensed” means that the provider has obtained a
  274  certificate of authority from the department.
  275         (14) “Manager” or “management company” means a person who
  276  administers the day-to-day business operations of a facility for
  277  a provider, subject to the policies, directives, and oversight
  278  of the provider.
  279         (15)(10) “Nursing care” means those services or acts
  280  rendered to a resident by an individual licensed or certified
  281  pursuant to chapter 464.
  282         (16)(11) “Personal services” has the same meaning as in s.
  283  429.02.
  284         (17)(12) “Provider” means:
  285         (a) For provisional certificates of authority applied for
  286  on or after July 1, 2017, the corporation, whether operated for
  287  profit or not, that:
  288         1. Owns and operates a facility the owner or operator,
  289  whether a natural person, partnership or other unincorporated
  290  association, however organized, trust, or corporation, of an
  291  institution, building, residence, or other place, whether
  292  operated for profit or not, which owner or operator and that
  293  provides continuing care for a fixed or variable fee, or for any
  294  other remuneration of any type, whether fixed or variable, for
  295  the period of care, payable in a lump sum or lump sum and
  296  monthly maintenance charges or in installments; or
  297         2. Provides or continuing care at-home for a fixed or
  298  variable fee, or for any other remuneration of any type, whether
  299  fixed or variable, for the period of care, payable in a lump sum
  300  or lump sum and monthly maintenance charges or in installments.
  301         (b)For a provisional certificate of authority or a
  302  certificate of authority applied for before July 1, 2017, and
  303  subsequently issued, the owner or operator, whether a natural
  304  person, partnership, other unincorporated association however
  305  organized, trust, or corporation of an institution, building,
  306  residence, or other place, whether operated for profit or not,
  307  which owner or operator provides continuing care or continuing
  308  care at-home for a fixed or variable fee, or for any other
  309  remuneration of any type, whether fixed or variable, for the
  310  period of care, payable in a lump sum or lump sum and monthly
  311  maintenance charges or in installments.
  312  
  313  The term does not apply to an entity that has existed and
  314  continuously operated a facility located on at least 63 acres in
  315  this state providing residential lodging to members and their
  316  spouses for at least 66 years on or before July 1, 1989, and has
  317  the residential capacity of 500 persons, is directly or
  318  indirectly owned or operated by a nationally recognized
  319  fraternal organization, is not open to the public, and accepts
  320  only its members and their spouses as residents.
  321         (18)(13) “Records” means all documents, correspondence, and
  322  the permanent financial, directory, and personnel information
  323  and data maintained by a provider pursuant to this chapter,
  324  regardless of the physical form, characteristics, or means of
  325  transmission.
  326         (19)(14) “Resident” means a purchaser of, a nominee of, or
  327  a subscriber to a continuing care or continuing care at-home
  328  contract. Such contract does not give the resident a part
  329  ownership of the facility in which the resident is to reside,
  330  unless expressly provided in the contract.
  331         (20)(15) “Shelter” means an independent living unit, room,
  332  apartment, cottage, villa, personal care unit, nursing bed, or
  333  other living area within a facility set aside for the exclusive
  334  use of one or more identified residents.
  335         Section 3. Section 651.013, Florida Statutes, is amended to
  336  read:
  337         651.013 Chapter exclusive; applicability of other laws;
  338  legislative intent.—
  339         (1) Except as herein provided, providers of continuing care
  340  and continuing care at-home are governed by the provisions of
  341  this chapter and are exempt from all other provisions of the
  342  Florida Insurance Code.
  343         (2) In addition to other applicable provisions cited in
  344  this chapter, the office has the authority granted under ss.
  345  624.302 and 624.303, 624.307-624.312, 624.308-624.312, 624.318,
  346  624.319(1)-(3), 624.320-624.321, 624.324, and 624.34, and
  347  624.422 of the Florida Insurance Code to regulate providers of
  348  continuing care and continuing care at-home.
  349         (3) The Legislature recognizes that continuing care
  350  communities have become an important option for the long-term
  351  care needs for many elderly residents of this state. The
  352  Legislature further recognizes that, in exchange for an entrance
  353  fee or monthly maintenance charges, a continuing care contract
  354  guarantees continuing care or the refund of a portion of the
  355  entrance fee upon death or other specified circumstance.
  356  Continuing care providers contract for services substantially
  357  similar to life, health, and long-term care insurance products.
  358  Therefore, the Legislature finds that providers of continuing
  359  care and continuing care at-home are engaged in the business of
  360  insurance and must be regulated and governed by this chapter.
  361         Section 4. Section 651.014, Florida Statutes, is amended to
  362  read:
  363         651.014 Other insurance business not authorized.—Nothing in
  364  The Florida Insurance Code or this chapter may not shall be
  365  deemed to authorize any provider of a continuing care facility
  366  to transact any insurance business other than that of continuing
  367  care insurance or otherwise to engage in any other type of
  368  insurance, unless it is authorized under a certificate of
  369  authority issued by the office under the provisions of the
  370  Florida Insurance Code.
  371         Section 5. Section 651.019, Florida Statutes, is amended to
  372  read:
  373         651.019 New financing, additional financing, or
  374  refinancing.—
  375         (1) All new financing or refinancing must be in the best
  376  interest of the facility and its residents After issuance of a
  377  certificate of authority, the provider shall submit to the
  378  office a general outline, including intended use of proceeds,
  379  with respect to any new financing, additional financing, or
  380  refinancing at least 30 days before the closing date of such
  381  financing transaction.
  382         (2) The provider shall:
  383         (a) Provide notice to the residents’ council of any new
  384  financing or refinancing at least 30 days before the closing
  385  date of such financing or refinancing transaction. The notice
  386  must include a general outline and the intended use of proceeds,
  387  as well as any financing agreements and any related documents,
  388  escrow or trust agreements, and statistical or financial data
  389  prepared in support of such financing or refinancing
  390  transaction; or
  391         (b) If the facility does not have a residents’ council,
  392  inform all residents in writing that the notice required by
  393  paragraph (a) is available for review and specify where the
  394  notice may be accessed furnish any information the office may
  395  reasonably request in connection with any new financing,
  396  additional financing, or refinancing, including, but not limited
  397  to, the financing agreements and any related documents, escrow
  398  or trust agreements, and statistical or financial data.
  399         (3) Within 30 days after the closing date of such financing
  400  or refinancing transaction, the provider shall also submit to
  401  the office copies of executed financing documents and a copy of
  402  all documents required to be submitted to the residents’ council
  403  under paragraph (2)(a) within 30 days after the closing date.
  404         Section 6. Paragraphs (b) and (c) of subsection (2) of
  405  section 651.021, Florida Statutes, are amended, and subsection
  406  (3) is added to that section, to read:
  407         651.021 Certificate of authority required.—
  408         (2) Written approval must be obtained from the office
  409  before commencing construction or marketing for an expansion of
  410  a certificated facility equivalent to the addition of at least
  411  20 percent of existing units or 20 percent or more in the number
  412  of continuing care at-home contracts. This provision does not
  413  apply to construction for which a certificate of need from the
  414  Agency for Health Care Administration is required.
  415         (b) The application for such approval shall be on forms
  416  adopted by the commission and provided by the office. The
  417  application must include the feasibility study required by s.
  418  651.022(3) or s. 651.023(1)(b) and such other information as
  419  required by s. 651.023 or as reasonably requested by the office.
  420  If the expansion is only for continuing care at-home contracts,
  421  an actuarial study prepared by an independent actuary in
  422  accordance with standards adopted by the American Academy of
  423  Actuaries which presents the financial impact of the expansion
  424  may be substituted for the feasibility study.
  425         (c) In determining whether an expansion should be approved,
  426  the office shall use the criteria provided in s. 651.022(6) ss.
  427  651.022(6) and 651.023(4).
  428         (3) Entrance fees and reservation deposits collected for
  429  expansions must be held pursuant to the escrow requirements of
  430  s. 651.023(5) and (6).
  431         Section 7. Subsection (2), paragraph (b) of subsection (5),
  432  and subsections (6) and (8) of section 651.022, Florida
  433  Statutes, are amended to read:
  434         651.022 Provisional certificate of authority; application.—
  435         (2) The application for a provisional certificate of
  436  authority shall be on a form prescribed by the commission and
  437  shall contain the following information:
  438         (a) If the applicant or provider is a corporation, A copy
  439  of the articles of incorporation and bylaws; if the applicant or
  440  provider is a partnership or other unincorporated association, a
  441  copy of the partnership agreement, articles of association, or
  442  other membership agreement; and, if the applicant or provider is
  443  a trust, a copy of the trust agreement or instrument.
  444         (b) The full names, residences, and business addresses of:
  445         1. The proprietor, if the applicant or provider is an
  446  individual.
  447         2. Every partner or member, if the applicant or provider is
  448  a partnership or other unincorporated association, however
  449  organized, having fewer than 50 partners or members, together
  450  with the business name and address of the partnership or other
  451  organization.
  452         3. The principal partners or members, if the applicant or
  453  provider is a partnership or other unincorporated association,
  454  however organized, having 50 or more partners or members,
  455  together with the business name and business address of the
  456  partnership or other organization. If such unincorporated
  457  organization has officers and a board of directors, the full
  458  name and business address of each officer and director may be
  459  set forth in lieu of the full name and business address of its
  460  principal members.
  461         1.4. The corporation and each officer and director thereof,
  462  if the applicant or provider is a corporation.
  463         5. Every trustee and officer, if the applicant or provider
  464  is a trust.
  465         2.6. The manager, whether an individual, corporation,
  466  partnership, or association.
  467         3.7. Any stockholder holding at least a 10 percent interest
  468  in the operations of the facility in which the care is to be
  469  offered.
  470         4.8. Any person whose name is required to be provided in
  471  the application under this paragraph and who owns any interest
  472  in or receives any remuneration from, directly or indirectly,
  473  any professional service firm, association, trust, partnership,
  474  or corporation providing goods, leases, or services to the
  475  facility for which the application is made, with a real or
  476  anticipated value of $10,000 or more, and the name and address
  477  of the professional service firm, association, trust,
  478  partnership, or corporation in which such interest is held. The
  479  applicant shall describe such goods, leases, or services and the
  480  probable cost to the facility or provider and shall describe why
  481  such goods, leases, or services should not be purchased from an
  482  independent entity.
  483         5.9. Any person, corporation, partnership, association, or
  484  trust owning land or property leased to the facility, along with
  485  a copy of the lease agreement.
  486         6.10. Any affiliated parent or subsidiary corporation or
  487  partnership.
  488         (c)1. Evidence that the persons named in paragraph (b) are
  489  competent and trustworthy applicant is reputable and of
  490  responsible character. If the applicant is a firm, association,
  491  organization, partnership, business trust, corporation, or
  492  company, The form must further shall require evidence that the
  493  members or shareholders are reputable and of responsible
  494  character, and the person in charge of providing care under a
  495  certificate of authority is competent and trustworthy shall
  496  likewise be required to produce evidence of being reputable and
  497  of responsible character.
  498         2. Evidence satisfactory to the office of the ability of
  499  the applicant to comply with the provisions of this chapter and
  500  with rules adopted by the commission pursuant to this chapter.
  501         3. A statement of whether a person identified in the
  502  application for a provisional certificate of authority or the
  503  administrator or manager of the facility, if such person has
  504  been designated, or any such person living in the same location:
  505         a. Has been convicted of a felony or has pleaded nolo
  506  contendere to a felony charge, or has been held liable or has
  507  been enjoined in a civil action by final judgment, if the felony
  508  or civil action involved fraud, embezzlement, fraudulent
  509  conversion, or misappropriation of property.
  510         b. Is subject to a currently effective injunctive or
  511  restrictive order or federal or state administrative order
  512  relating to business activity or health care as a result of an
  513  action brought by a public agency or department, including,
  514  without limitation, an action affecting a license under chapter
  515  400 or chapter 429.
  516  
  517  The statement must shall set forth the court or agency, the date
  518  of conviction or judgment, and the penalty imposed or damages
  519  assessed, or the date, nature, and issuer of the order. Before
  520  determining whether a provisional certificate of authority is to
  521  be issued, the office may make an inquiry to determine the
  522  accuracy of the information submitted pursuant to subparagraphs
  523  1., 2., and 3. 1. and 2.
  524         (d) The contracts for continuing care and continuing care
  525  at-home to be entered into between the provider and residents
  526  which meet the minimum requirements of s. 651.055 or s. 651.057
  527  and which include a statement describing the procedures required
  528  by law relating to the release of escrowed entrance fees. Such
  529  statement may be furnished through an addendum.
  530         (e) Any advertisement or other written material proposed to
  531  be used in the solicitation of residents.
  532         (f) Such other reasonable data, financial statements, and
  533  pertinent information as the commission or office may reasonably
  534  require with respect to the provider or the facility, including
  535  the most recent audited financial statements of comparable
  536  facilities currently or previously owned, managed, or developed
  537  by the applicant or its principal, to assist in determining the
  538  financial viability of the project and the management
  539  capabilities of its managers and owners.
  540         (g) The forms of the residency contracts, reservation
  541  contracts, escrow agreements, and wait list contracts, if
  542  applicable, which are proposed to be used by the provider in the
  543  furnishing of care. The office shall approve contracts and
  544  escrow agreements that comply with ss. 651.023(1)(c), 651.033,
  545  651.055, and 651.057. Thereafter, no other form of contract or
  546  agreement may be used by the provider until it has been
  547  submitted to the office and approved.
  548         (h) An actuarial study.
  549  
  550  If any material change occurs in the facts set forth in an
  551  application filed with the office pursuant to this subsection,
  552  an amendment setting forth such changes must be immediately
  553  filed with the office, and a copy of the amendment must be sent
  554  by registered mail to the principal office of the facility and
  555  to the principal office of the controlling company.
  556         (5)
  557         (b) An application is deemed complete upon receipt of all
  558  requested information and correction of any error or omission
  559  for which the applicant was timely notified or when the time for
  560  such notification has expired Within 15 days after receipt of
  561  all of the requested additional information, the office shall
  562  notify the applicant in writing that all of the requested
  563  information has been received and the application is deemed to
  564  be complete as of the date of the notice. Failure to so notify
  565  the applicant in writing within the 15-day period shall
  566  constitute acknowledgment by the office that it has received all
  567  requested additional information, and the application shall be
  568  deemed to be complete for purposes of review upon the date of
  569  the filing of all of the requested additional information.
  570         (6) Within 90 45 days after the date an application is
  571  deemed complete as set forth in paragraph (5)(b), the office
  572  shall complete its review and issue a provisional certificate of
  573  authority to the applicant based upon its review and a
  574  determination that the application meets all requirements of
  575  law, that the feasibility study was based on sufficient data and
  576  reasonable assumptions, and that the applicant will be able to
  577  provide continuing care or continuing care at-home as proposed
  578  and meet all financial and contractual obligations related to
  579  its operations, including the financial requirements of this
  580  chapter. If the application is denied, the office shall notify
  581  the applicant in writing, citing the specific failures to meet
  582  the provisions of this chapter. Such denial entitles the
  583  applicant to a hearing pursuant to chapter 120.
  584         (8) The office may shall not approve any application that
  585  which includes in the plan of financing any encumbrance of the
  586  operating reserves required by this chapter.
  587         Section 8. Subsections (1), (2), and (3), paragraph (a) of
  588  subsection (4), and present subsection (9) of section 651.023,
  589  Florida Statutes, are amended, paragraph (c) of subsection (7)
  590  of that section is redesignated as subsection (8), and present
  591  subsection (8) of that section is redesignated as subsection
  592  (9), to read:
  593         651.023 Certificate of authority; application.—
  594         (1) After issuance of a provisional certificate of
  595  authority, the office shall issue to the holder of such
  596  provisional certificate a certificate of authority if the holder
  597  of the provisional certificate provides the office with the
  598  following information:
  599         (a) Any material change in status with respect to the
  600  information required to be filed under s. 651.022(2) in the
  601  application for the provisional certificate.
  602         (b) A feasibility study prepared by an independent
  603  consultant which contains all of the information required by s.
  604  651.022(3) and financial forecasts or projections prepared in
  605  accordance with standards adopted by the American Institute of
  606  Certified Public Accountants or in accordance with standards for
  607  feasibility studies or continuing care retirement communities
  608  adopted by the Actuarial Standards Board.
  609         1. The study must also contain an independent evaluation
  610  and examination opinion, or a comparable opinion acceptable to
  611  the office, by the consultant who prepared the study, of the
  612  underlying assumptions used as a basis for the forecasts or
  613  projections in the study and that the assumptions are reasonable
  614  and proper and the project as proposed is feasible.
  615         2. The study must take into account project costs, actual
  616  marketing results to date and marketing projections, resident
  617  fees and charges, competition, resident contract provisions, and
  618  any other factors which affect the feasibility of operating the
  619  facility.
  620         3. If the study is prepared by an independent certified
  621  public accountant, it must contain an examination opinion for
  622  the first 3 years of operations and financial projections having
  623  a compilation opinion for the next 3 years. If the study is
  624  prepared by an independent consulting actuary, it must contain
  625  mortality and morbidity data and an actuary’s signed opinion
  626  that the project as proposed is feasible and that the study has
  627  been prepared in accordance with standards adopted by the
  628  American Academy of Actuaries.
  629         (c) Subject to subsection (4), a provider may submit an
  630  application for a certificate of authority and any required
  631  exhibits upon submission of proof that the project has a minimum
  632  of 50 30 percent of the units reserved for which the provider is
  633  charging an entrance fee. This does not apply to an application
  634  for a certificate of authority for the acquisition of a facility
  635  for which a certificate of authority was issued before October
  636  1, 1983, to a provider who subsequently becomes a debtor in a
  637  case under the United States Bankruptcy Code, 11 U.S.C. ss. 101
  638  et seq., or to a provider for which the department has been
  639  appointed receiver pursuant to part II of chapter 631.
  640         (d) Proof that commitments have been secured for both
  641  construction financing and long-term financing or a documented
  642  plan acceptable to the office has been adopted by the applicant
  643  for long-term financing.
  644         (e) Proof that all conditions of the lender have been
  645  satisfied to activate the commitment to disburse funds other
  646  than the obtaining of the certificate of authority, the
  647  completion of construction, or the closing of the purchase of
  648  realty or buildings for the facility.
  649         (f) Proof that the aggregate amount of entrance fees
  650  received by or pledged to the applicant, plus anticipated
  651  proceeds from any long-term financing commitment, plus funds
  652  from all other sources in the actual possession of the
  653  applicant, equal at least 100 percent of the aggregate cost of
  654  constructing or purchasing, equipping, and furnishing the
  655  facility plus 100 percent of the anticipated startup losses of
  656  the facility.
  657         (g) Complete audited financial statements of the applicant,
  658  prepared by an independent certified public accountant in
  659  accordance with generally accepted accounting principles, as of
  660  the date the applicant commenced business operations or for the
  661  fiscal year that ended immediately preceding the date of
  662  application, whichever is later, and complete unaudited
  663  quarterly financial statements attested to by the applicant
  664  after the date of the last audit.
  665         (h) Proof that the applicant has complied with the escrow
  666  requirements of subsection (5) or subsection (7) and will be
  667  able to comply with s. 651.035.
  668         (i) An actuarial study.
  669         (j) Such other reasonable data, financial statements, and
  670  pertinent information as the commission or office may require
  671  with respect to the applicant or the facility, to determine the
  672  financial status of the facility and the management capabilities
  673  of its managers and owners.
  674         (2) Within 30 days after receipt of the information
  675  required under subsection (1), the office shall examine such
  676  information and notify the provider in writing, specifically
  677  requesting any additional information the office is permitted by
  678  law to require. An application is deemed complete upon receipt
  679  of all requested information and correction of any error or
  680  omission for which the applicant was timely notified or when the
  681  time for such notification has expired Within 15 days after
  682  receipt of all of the requested additional information, the
  683  office shall notify the provider in writing that all of the
  684  requested information has been received and the application is
  685  deemed to be complete as of the date of the notice. Failure to
  686  notify the applicant in writing within the 15-day period
  687  constitutes acknowledgment by the office that it has received
  688  all requested additional information, and the application shall
  689  be deemed complete for purposes of review on the date of filing
  690  all of the required additional information.
  691         (3) Within 90 45 days after an application is deemed
  692  complete as set forth in subsection (2), and upon completion of
  693  the remaining requirements of this section, the office shall
  694  complete its review and issue or deny a certificate of authority
  695  to the holder of a provisional certificate of authority. If a
  696  certificate of authority is denied, the office must notify the
  697  holder of the provisional certificate in writing, citing the
  698  specific failures to satisfy the provisions of this chapter. If
  699  denied, the holder of the provisional certificate is entitled to
  700  an administrative hearing pursuant to chapter 120.
  701         (4) The office shall issue a certificate of authority upon
  702  determining that the applicant meets all requirements of law and
  703  has submitted all of the information required by this section,
  704  that all escrow requirements have been satisfied, and that the
  705  fees prescribed in s. 651.015(2) have been paid.
  706         (a) Notwithstanding satisfaction of the 30-percent minimum
  707  reservation requirement of paragraph (1)(c), A No certificate of
  708  authority may not shall be issued until the project has a
  709  minimum of 50 percent of the units reserved for which the
  710  provider is charging an entrance fee, and proof is provided to
  711  the office. If a provider offering continuing care at-home is
  712  applying for a certificate of authority or approval of an
  713  expansion pursuant to s. 651.021(2), the same minimum
  714  reservation requirements must be met for the continuing care and
  715  continuing care at-home contracts, independently of each other.
  716         (10)(9) The office may not approve an application that
  717  includes in the plan of financing any encumbrance of the
  718  operating reserves required by this chapter.
  719         Section 9. Section 651.024, Florida Statutes, is amended to
  720  read:
  721         651.024 Acquisition.—
  722         (1) A person who seeks to acquire a provider; assume the
  723  role of general partner of a provider; or otherwise assume
  724  ownership or possession of, or control over, 10 percent or more
  725  of a provider’s assets is issued a certificate of authority to
  726  operate a continuing care facility or a provisional certificate
  727  of authority shall be subject to the provisions of s. 628.4615
  728  and is not required to make filings pursuant to s. 651.022 or s.
  729  651.023.
  730         (2) A person who seeks to acquire, and become the provider
  731  for, a facility is subject to s. 651.0245 and is not required to
  732  make filings pursuant to ss. 628.4615, 651.022, and 651.023.
  733         (3) A person may rebut a presumption of control by filing a
  734  disclaimer of control with the office on a form prescribed by
  735  the commission. The disclaimer must fully disclose all material
  736  relationships and bases for affiliation between the person and
  737  the provider or facility, as well as the basis for disclaiming
  738  the affiliation. In lieu of such form, a person or acquiring
  739  party may file with the office a copy of a Schedule 13G filed
  740  with the Securities and Exchange Commission pursuant to Rule
  741  13d-1(b) or (c) under the Securities Exchange Act of 1934 as
  742  amended, 17 C.F.R. s. 240.13d-1. After a disclaimer has been
  743  filed, the provider or facility is relieved of any duty to
  744  register or report under this section which may arise out of the
  745  provider’s or facility’s relationship with the person, unless
  746  the office disallows the disclaimer.
  747         Section 10. Section 651.0245, Florida Statutes, is created
  748  to read:
  749         651.0245 Application for the simultaneous acquisition of a
  750  facility and issuance of a certificate of authority.—
  751         (1) A person may not, individually or in conjunction with
  752  any affiliated person of such person, directly or indirectly,
  753  acquire a facility operating under a subsisting certificate of
  754  authority and engage in the business of providing continuing
  755  care, unless:
  756         (a) The person or affiliated person has filed with the
  757  office and has sent by registered mail to the principal office
  758  of the facility and controlling company a letter of notification
  759  regarding the transaction or proposed transaction no later than
  760  5 days after entering into an agreement to purchase the
  761  facility. The notification must be provided on forms prescribed
  762  by the commission, containing information determined necessary
  763  to understand the transaction and to identify all purchasers and
  764  owners involved;
  765         (b) The person or affiliated person has filed with the
  766  office an application, signed under oath and prepared on forms
  767  prescribed by the commission, which contains the information
  768  specified in subsection (2). The application must be completed
  769  and filed within 30 days after entering into an agreement to
  770  purchase the facility; and
  771         (c) The office has approved the application to purchase the
  772  facility and has issued a certificate of authority to the
  773  applicant.
  774         (2) An application filed with the office and furnished to
  775  the facility and controlling company must contain the following
  776  information and any additional information that the office deems
  777  necessary to determine the character, experience, ability, and
  778  other qualifications of the person, or the affiliated person of
  779  such person, for the protection of the residents of the facility
  780  and of the public:
  781         (a) A copy of the articles of incorporation and bylaws of
  782  the applicant.
  783         (b) The full names, residences, and business addresses of:
  784         1. The corporation and each officer and director thereof.
  785         2. The manager, whether an individual, corporation,
  786  partnership, or association.
  787         3. Any stockholder holding at least a 10 percent interest
  788  in the operations of the facility in which the care is to be
  789  offered.
  790         4. Any person whose name is required to be provided in the
  791  application under this paragraph and who owns any interest in or
  792  receives any remuneration from, directly or indirectly, any
  793  professional service firm, association, trust, partnership, or
  794  corporation providing goods, leases, or services to the facility
  795  for which the application is made, with a real or anticipated
  796  value of $10,000 or more, and the name and address of the
  797  professional service firm, association, trust, partnership, or
  798  corporation in which such interest is held. The applicant shall
  799  describe such goods, leases, or services and the probable cost
  800  to the facility or provider and shall describe why such goods,
  801  leases, or services should not be purchased from an independent
  802  entity.
  803         5. Any person, corporation, partnership, association, or
  804  trust owning land or property leased to the facility, along with
  805  a copy of the lease agreement.
  806         6. Any affiliated parent or subsidiary corporation or
  807  partnership.
  808         7. Any other person performing duties similar to those of
  809  persons in the positions described in subparagraphs 1.-6.
  810         (c)1. Evidence that the persons named in paragraph (b) are
  811  competent and trustworthy. The form must require evidence that
  812  the person in charge of providing care under a certificate of
  813  authority is competent and trustworthy.
  814         2. Evidence satisfactory to the office of the applicant’s
  815  ability to comply with this chapter and with rules adopted by
  816  the commission pursuant to this chapter.
  817         3. A statement of whether a person identified in the
  818  application or the administrator or manager of the facility, if
  819  such person has been designated, or any person living in the
  820  same location:
  821         a. Has been convicted of a felony, has pleaded nolo
  822  contendere to a felony charge, or has been held liable or has
  823  been enjoined in a civil action by final judgment, if the felony
  824  or civil action involved fraud, embezzlement, fraudulent
  825  conversion, or misappropriation of property.
  826         b. Is subject to a currently effective injunctive or
  827  restrictive order or federal or state administrative order
  828  relating to business activity or health care as a result of an
  829  action brought by a public agency or department, including,
  830  without limitation, an action affecting a license under chapter
  831  400 or chapter 429.
  832  
  833  The statement must specify the court or agency, the date of
  834  conviction or judgment, and the penalty imposed or damages
  835  assessed; or the date, nature, and issuer of the order. Before
  836  determining whether to issue a provisional certificate of
  837  authority, the office may make an inquiry to determine the
  838  accuracy of the information submitted pursuant to subparagraphs
  839  1., 2., and 3.
  840         4. For each natural person about whom information is
  841  required to be furnished pursuant to paragraph (b), a statement
  842  describing:
  843         a. The natural person’s occupations, positions of
  844  employment, and offices held during the past 10 years.
  845         b. The principal business and address of any business,
  846  corporation, or organization in which each office of the natural
  847  person was held, or in which each occupation or position of
  848  employment was carried on.
  849         c. Whether the natural person was at any time during the
  850  past 10 years convicted of any crime other than a traffic
  851  violation.
  852         d. Whether the natural person has been the subject of any
  853  proceeding for the revocation of any license during the past 10
  854  years and, if so, the nature of the proceeding and the
  855  disposition of the proceeding.
  856         e. Whether, during the past 10 years, the natural person
  857  has been the subject of any proceeding under the federal
  858  Bankruptcy Act; or whether, during such 10-year period, any
  859  person or other business or organization in which the natural
  860  person was a director, officer, trustee, partner, owner,
  861  manager, or other official has been subject to any such
  862  proceeding, either during the time in which the natural person
  863  was a director, officer, or trustee, if a corporation, or a
  864  partner, owner, manager, joint venturer, or other official, if
  865  not a corporation, or within 12 months thereafter.
  866         f. Whether, during the past 10 years, the natural person
  867  has been enjoined, temporarily or permanently, by a court of
  868  competent jurisdiction from violating any federal or state law
  869  regulating the business of continuing care, insurance,
  870  securities, or banking or from carrying out any particular
  871  practice or practices in the course of the business of
  872  continuing care, insurance, securities, or banking, together
  873  with details as to any such event.
  874  
  875  Any person filing the statement required by this subparagraph
  876  must give all required information that is within the knowledge
  877  of the directors, officers, or trustees of the person making the
  878  filing and of any person directly or indirectly controlling such
  879  person.
  880         5. Fingerprints of each person referred to in paragraph
  881  (b).
  882         (d) The source and amount of the funds or other
  883  consideration used, or to be used, in making the acquisition of
  884  the facility.
  885         (e) Any plan or proposal that persons described under
  886  paragraph (b) may have made to liquidate the facility, to sell
  887  any of its assets or merge or consolidate it with any person, or
  888  to make any other major change in its business or corporate
  889  structure or management; and any plan or proposal that such
  890  persons may have made to liquidate any controlling company of
  891  the facility, to sell any of its assets or merge or consolidate
  892  it with any person, or to make any other major change in its
  893  business or corporate structure or management.
  894         (f) The contracts for continuing care and continuing care
  895  at-home to be entered into between the provider and residents
  896  which meet the minimum requirements of s. 651.055 or s. 651.057
  897  and which include a statement describing the procedures required
  898  by law relating to the release of escrowed entrance fees. Such
  899  statement may be furnished through an addendum.
  900         (g) Such other data, financial statements, and pertinent
  901  information as the commission or office may reasonably require
  902  with respect to the provider or the facility, including the most
  903  recent audited financial statements of comparable facilities
  904  currently or previously owned, managed, or developed by the
  905  applicant or its principal, to assist in determining the
  906  financial viability of the project and the management
  907  capabilities of its managers and owners.
  908         (h) The forms of the residency contracts, reservation
  909  contracts, escrow agreements, and wait list contracts, if
  910  applicable, which are proposed to be used by the provider in the
  911  furnishing of care. The office shall approve contracts and
  912  escrow agreements that comply with ss. 651.023(1)(c), 651.033,
  913  651.055, and 651.057. Thereafter, no other form of contract or
  914  agreement may be used by the provider until it has been
  915  submitted to the office and approved.
  916         (i) An actuarial study.
  917         (j) Any advertisement or other written material proposed to
  918  be used in the solicitation of residents.
  919  
  920  If any material change occurs in the facts set forth in the
  921  application filed with the office pursuant to this subsection,
  922  an amendment setting forth such changes must be filed
  923  immediately with the office and a copy of the amendment must be
  924  sent by registered mail to the principal office of the facility
  925  and to the principal office of the controlling company.
  926         (3)(a) In addition to the information required in
  927  subsection (2), an applicant shall submit a feasibility study
  928  prepared by an independent consultant and financial forecasts or
  929  projections prepared in accordance with standards adopted by the
  930  American Institute of Certified Public Accountants. The
  931  feasibility study must include at least the following
  932  information:
  933         1. A description of the facility, including the location,
  934  size, occupancy level, and description of the continuing care
  935  and continuing care at-home contracts in force.
  936         2. Projected revenues, including anticipated entrance fees;
  937  monthly service fees; nursing care rates, if applicable; and all
  938  other sources of revenue, including the total amount of debt
  939  financing required.
  940         3. Projected expenses, including staffing requirements and
  941  salaries; cost of property, plant, and equipment, including
  942  depreciation expense; interest expense; marketing expense; and
  943  other operating expenses.
  944         4. Current assets and liabilities of the applicant.
  945         5. Expectations of the financial condition of the project,
  946  including the projected cash flow and a projected balance sheet
  947  and an estimate of the funds anticipated to be necessary to
  948  cover startup losses, if any, for 3 years.
  949         6. The inflation factor, if any, assumed in the study for
  950  the proposed facility and how and where it is applied.
  951         7. Project costs, marketing projections, resident fees and
  952  charges, the competition, resident contract provisions, and
  953  other factors that affect the feasibility of the facility.
  954         8. The name of the person who prepared the feasibility
  955  study and the experience of that person in preparing similar
  956  studies or otherwise consulting in the field of continuing care.
  957         (b)1. The study must also contain an independent evaluation
  958  and examination opinion, or a comparable opinion acceptable to
  959  the office, by the consultant who prepared the study, of the
  960  underlying assumptions used as a basis for the forecasts or
  961  projections in the study and that the assumptions are reasonable
  962  and proper and the project as proposed is feasible.
  963         2. The study must take into account project costs, actual
  964  marketing results to date and marketing projections, resident
  965  fees and charges, competition, resident contract provisions, and
  966  any other factors which affect the feasibility of operating the
  967  facility.
  968         3. If the study is prepared by an independent certified
  969  public accountant, it must contain an examination opinion for
  970  the first 3 years of operations and financial projections having
  971  a compilation opinion for the next 3 years. If the study is
  972  prepared by an independent consulting actuary, it must contain
  973  mortality and morbidity data and an actuary’s signed opinion
  974  that the project as proposed is feasible and that the study has
  975  been prepared in accordance with standards adopted by the
  976  American Academy of Actuaries.
  977         (4)(a) The application must be reviewed in accordance with
  978  chapter 120. The office may conduct on its own initiative, or
  979  shall conduct if requested to do so in writing by a
  980  substantially affected person, a proceeding to consider the
  981  appropriateness of the proposed acquisition. Timeframes for
  982  purposes of chapter 120 are tolled during the pendency of the
  983  proceeding. Any written request for a proceeding must be filed
  984  with the office within 10 days after the date notice is given
  985  pursuant to paragraph (1)(a). During the pendency of the
  986  proceeding or review period by the office, any person or
  987  affiliated person complying with the filing requirements of this
  988  section may proceed and take all steps necessary to conclude the
  989  acquisition so long as the acquisition becoming final is
  990  conditioned upon obtaining office approval. However, at any time
  991  the office finds an immediate danger exists to the public
  992  health, safety, and welfare of the residents, the office shall
  993  immediately order, pursuant to s. 120.569(2)(n), the proposed
  994  acquisition disapproved and any further steps to conclude the
  995  acquisition ceased.
  996         (b) If a request for a proceeding is filed, the proceeding
  997  must be conducted within 60 days after the date the written
  998  request for a proceeding is received by the office. A
  999  recommended order must be issued within 20 days after the date
 1000  the proceedings are closed. A final order must be issued within
 1001  20 days after the date of the recommended order or, if
 1002  exceptions to the recommended order are filed, within 20 days
 1003  after the date the exceptions are filed.
 1004         (5) The office may disapprove any acquisition subject to
 1005  the provisions of this section by any person or any affiliated
 1006  person of such person who:
 1007         (a) Willfully violates this section;
 1008         (b) Fails to divest any ownership interest obtained in
 1009  violation of this section or fails to divest any direct or
 1010  indirect control of such ownership interest within 25 days after
 1011  the issuance of an order by the office; or
 1012         (c) Acquires any ownership interest in a facility or
 1013  controlling company or direct or indirect control of such
 1014  ownership interest without complying with this section.
 1015         (6) The office must approve any such acquisition and issue
 1016  a certificate of authority if it finds, on the basis of the
 1017  record made during any proceeding or on the basis of the filed
 1018  application if no proceeding is conducted, all of the following:
 1019         (a) Upon completion of the acquisition, the applicant will
 1020  be able to satisfy the requirements for the issuance of a
 1021  certificate of authority to provide continuing care.
 1022         (b) The financial condition of the acquiring person or
 1023  persons will not jeopardize the financial stability of the
 1024  facility or prejudice the interests of its residents or the
 1025  public.
 1026         (c) Any plan or proposal that the acquiring person or
 1027  persons have made:
 1028         1. To liquidate the facility, sell its assets, or merge or
 1029  consolidate it with any person, or to make any other major
 1030  change in its business or corporate structure or management is
 1031  fair and free of prejudice to the residents of the facility or
 1032  to the public; or
 1033         2. To liquidate any controlling company, sell its assets,
 1034  or merge or consolidate it with any person, or to make any major
 1035  change in its business or corporate structure or management
 1036  which would have an effect upon the facility is fair and free of
 1037  prejudice to the residents of the facility or to the public.
 1038         (d) The competence, experience, and integrity of those
 1039  persons who will control directly or indirectly the operation of
 1040  the applicant indicate that the acquisition is in the best
 1041  interest of the residents of the facility and in the public
 1042  interest.
 1043         (e) The natural persons for whom background information is
 1044  required to be furnished pursuant to this section have such
 1045  backgrounds as to indicate that it is in the best interests of
 1046  the residents of the facility and in the public interest to
 1047  permit such persons to exercise control over the applicant.
 1048         (f) The directors and officers or other persons performing
 1049  duties similar to those of persons to be employed after the
 1050  acquisition have sufficient continuing care experience and
 1051  ability to assure reasonable promise of successful operation.
 1052         (g) The management of the applicant after the acquisition
 1053  will be competent and trustworthy, and will possess sufficient
 1054  managerial experience so as to make the proposed operation of
 1055  the facility not hazardous to the public.
 1056         (h) The management of the applicant and facility after the
 1057  acquisition will not include any person who has directly or
 1058  indirectly through ownership, control, reinsurance transactions,
 1059  or other business relations unlawfully manipulated the assets,
 1060  accounts, finances, or books of any facility, insurer, provider,
 1061  or other entity or otherwise acted in bad faith with respect
 1062  thereto.
 1063         (i) The acquisition is not likely to be hazardous or
 1064  prejudicial to the residents of the facility or to the public.
 1065         (j) The effect of the acquisition would not substantially
 1066  lessen competition or would not tend to create a monopoly
 1067  therein.
 1068  
 1069  The applicant has the burden of proof for any finding made
 1070  pursuant to this subsection.
 1071         (7) A vote by the stockholder of record, or by any other
 1072  person, of any security acquired in contravention of this
 1073  section is invalid. An acquisition contrary to this section is
 1074  void. Upon the petition of the office, the facility, or the
 1075  controlling company, the circuit court for the county in which
 1076  the principal office of the facility is located may, without
 1077  limiting the generality of its authority, order the issuance or
 1078  entry of an injunction or other order to enforce the provisions
 1079  of this section. A facility or controlling company has a private
 1080  right of action to enforce this section. The facility or
 1081  controlling company is not required to file a demand with the
 1082  office that it perform its functions as a prerequisite to a suit
 1083  by the facility or controlling company against another person,
 1084  and the office is not deemed a necessary party in any action by
 1085  the facility or controlling company to enforce this section. A
 1086  person who makes or proposes an acquisition requiring the filing
 1087  of an application pursuant to this section, or who files such an
 1088  application, is deemed to have thereby designated the Chief
 1089  Financial Officer, or his or her assistant or deputy or another
 1090  person in charge of his or her office, as such person’s agent
 1091  for service of process under this section and is thereby deemed
 1092  to have submitted himself or herself to the administrative
 1093  jurisdiction of the office and to the jurisdiction of the
 1094  circuit court.
 1095         (8) An approval by the office under this section does not
 1096  constitute a recommendation by the office of the tender offer or
 1097  exchange offer, or acquisition if no tender offer or exchange
 1098  offer is involved. It is unlawful for a person to represent that
 1099  the office’s approval constitutes a recommendation. A person who
 1100  violates the provisions of this subsection commits a felony of
 1101  the third degree, punishable as provided in s. 775.082, s.
 1102  775.083, or s. 775.084. The statute of limitations period for
 1103  the prosecution of an offense committed under this subsection is
 1104  5 years.
 1105         (9) The office may not approve any application that
 1106  includes in the plan of financing any encumbrance of the
 1107  reserves required by this chapter.
 1108         (10) A facility acquired in violation of this section holds
 1109  no certificate of authority and is deemed to be in such
 1110  condition, or to be using or to have been subject to such
 1111  methods or practices in the conduct of its business, as to
 1112  render its further operation presently or prospectively
 1113  hazardous to its residents, creditors, or stockholders or to the
 1114  public.
 1115         (11) A person may rebut a presumption of control by filing
 1116  a disclaimer of control with the office on a form prescribed by
 1117  the office. The disclaimer must fully disclose all material
 1118  relationships and bases for affiliation between the person and
 1119  the provider or facility as well as the basis for disclaiming
 1120  the affiliation. In lieu of such form, a person or acquiring
 1121  party may file with the office a copy of a Schedule 13G filed
 1122  with the Securities and Exchange Commission pursuant to Rule
 1123  13d-1(b) or (c) under the Securities Exchange Act of 1934 as
 1124  amended, 17 C.F.R. s. 240.13d-1.
 1125         (12) For the purposes of this section:
 1126         (a) The term “controlling company” means any corporation,
 1127  trust, or association owning, directly or indirectly, 25 percent
 1128  or more of the voting securities of one or more facilities that
 1129  are stock corporations, or 25 percent or more of the ownership
 1130  interest of one or more facilities that are not stock
 1131  corporations.
 1132         (b) The term “natural person” means an individual.
 1133         (c) The term “person” includes a natural person,
 1134  corporation, association, trust, general partnership, limited
 1135  partnership, joint venture, firm, proprietorship, or any other
 1136  entity that may hold a license or certificate as a facility.
 1137         (13) The commission may adopt, amend, or repeal rules
 1138  pursuant to chapter 120 which are necessary to implement this
 1139  section.
 1140         Section 11. Section 651.025, Florida Statutes, is created
 1141  to read:
 1142         651.025 Insolvent facilities or providers.—A person who was
 1143  a proprietor, general partner, member, officer, director,
 1144  trustee, or manager of a facility or provider doing business in
 1145  this state and who served in that capacity within the 2-year
 1146  period before the date the facility or provider became
 1147  insolvent, for any insolvency that occurs on or after July 1,
 1148  2017, may not thereafter serve as a proprietor, general partner,
 1149  member, officer, director, trustee, or manager of a facility or
 1150  provider authorized in this state unless such person
 1151  demonstrates that his or her personal actions or omissions were
 1152  not a significant contributing cause to the insolvency.
 1153         Section 12. Section 651.0261, Florida Statutes, is amended
 1154  to read:
 1155         651.0261 Quarterly and monthly statements.—
 1156         (1) Within 45 days after the end of each fiscal quarter,
 1157  each provider shall file a quarterly unaudited financial
 1158  statement of the provider or of the facility in the form
 1159  prescribed by the commission by rule and a detailed listing of
 1160  the assets maintained in the liquid reserve as required under s.
 1161  651.035. This requirement may be waived by the office upon
 1162  written request from a provider accredited under s. 651.028.
 1163         (2) If the office finds, pursuant to rules of the
 1164  commission, that such information is needed to properly monitor
 1165  the financial condition of a provider or facility or is
 1166  otherwise needed to protect the public interest, the office may
 1167  require the provider to file:,
 1168         (a)Within 25 days after the end of each month, a monthly
 1169  unaudited financial statement of the provider or of the facility
 1170  in the form prescribed by the commission by rule and a detailed
 1171  listing of the assets maintained in the liquid reserve as
 1172  required under s. 651.035 Within 45 days after the end of each
 1173  fiscal quarter, a quarterly unaudited financial statement of the
 1174  provider or of the facility in the form prescribed by the
 1175  commission by rule. The commission may by rule require all or
 1176  part of the statements or filings required under this section to
 1177  be submitted by electronic means in a computer-readable form
 1178  compatible with the electronic data format specified by the
 1179  commission.
 1180         (b) Such other data, financial statements, and pertinent
 1181  information as the commission or office may reasonably require
 1182  with respect to the provider or the facility, or its directors,
 1183  trustees, members, branches, subsidiaries, or affiliates, to
 1184  determine the financial status of the provider or of the
 1185  facility, and the management capabilities of its managers and
 1186  owners.
 1187         (3) A filing under subsection (2) may be required if:
 1188         (a) The provider has been in operation for less than 2
 1189  years since the date of issuance of its certificate of
 1190  authority.
 1191         (b) The provider is subject to:
 1192         1. Administrative supervision proceedings;
 1193         2. A corrective action plan;
 1194         3. Refinancing;
 1195         4. An acquisition; or
 1196         5. Delinquency or receivership proceedings.
 1197         (c) The provider or facility displays a declining financial
 1198  position.
 1199         (4) The commission may by rule require all or part of the
 1200  statements or filings required under this section to be
 1201  submitted by electronic means in a computer-readable form
 1202  compatible with the electronic data format specified by the
 1203  commission.
 1204         Section 13. Section 651.0271, Florida Statutes, is created
 1205  to read:
 1206         651.0271 Actuarial opinions.—
 1207         (1) When required by the office pursuant to subsection (2),
 1208  a provider must submit an actuarial opinion for each facility
 1209  operated in this state which states whether the reserves and
 1210  related actuarial items held in support of the policies and
 1211  contracts are computed appropriately, are based on assumptions
 1212  that satisfy contractual provisions, are consistent with prior
 1213  reported amounts, and comply with applicable state law.
 1214         (a) The actuarial opinion must state whether the provider
 1215  has adequate resources to meet all of its actuarial liabilities
 1216  and related statement items for each operated facility and
 1217  whether the provider’s financial condition is actuarially sound.
 1218         (b) The amount to be held in the reserve must be determined
 1219  and certified by an actuary pursuant to s. 651.034.
 1220         (c) The opinion must be conducted within 1 year before the
 1221  date of the office’s request or completed within 90 days after
 1222  the date of the office’s request.
 1223         (2) The office may require a provider to submit the
 1224  actuarial opinion if the office finds that:
 1225         (a)The provider has a negative net worth;
 1226         (b)The provider is subject to quarterly or monthly
 1227  reporting;
 1228         (c) The average occupancy of the facility has declined by
 1229  more than 5 percent from the prior year;
 1230         (d) The provider is delinquent on the payment of refunds
 1231  due pursuant to the terms of resident contracts; or
 1232         (e) More than 20 percent of the contracts issued by the
 1233  provider are refundable.
 1234         Section 14. Section 651.033, Florida Statutes, is amended
 1235  to read:
 1236         651.033 Escrow accounts.—
 1237         (1) When funds are required to be deposited in an escrow
 1238  account pursuant to s. 651.022, s. 651.023, s. 651.035, or s.
 1239  651.055:
 1240         (a) The escrow account must shall be established in a
 1241  Florida bank, Florida savings and loan association, or Florida
 1242  trust company acceptable to the office or on deposit with the
 1243  department; and the funds deposited therein must shall be kept
 1244  and maintained in an account separate and apart from the
 1245  provider’s business accounts.
 1246         (b) An escrow agreement must shall be entered into between
 1247  the bank, savings and loan association, or trust company and the
 1248  provider of the facility; the agreement must shall state that
 1249  its purpose is to protect the resident or the prospective
 1250  resident; and, upon presentation of evidence of compliance with
 1251  applicable portions of this chapter, or upon order of a court of
 1252  competent jurisdiction, the escrow agent must shall release and
 1253  pay over the funds, or portions thereof, together with any
 1254  interest accrued thereon or earned from investment of the funds,
 1255  to the provider or resident as directed.
 1256         (c) Any agreement establishing an escrow account required
 1257  under the provisions of this chapter is shall be subject to
 1258  approval by the office. The agreement must shall be in writing
 1259  and shall contain, in addition to any other provisions required
 1260  by law, a provision whereby the escrow agent agrees to abide by
 1261  the duties imposed by paragraphs (b) and (e), (2)(a), (2)(b),
 1262  and (4)(a) and subsection (5) under this section.
 1263         (d) All funds deposited in an escrow account, if invested,
 1264  must shall be invested in cash, cash equivalents, mutual funds,
 1265  equities, or investment grade bonds as set forth in part II of
 1266  chapter 625; however, such investment may not diminish the funds
 1267  held in escrow below the amount required by this chapter. Funds
 1268  deposited in an escrow account are not subject to charges by the
 1269  escrow agent except escrow agent fees associated with
 1270  administering the accounts, or subject to any liens, judgments,
 1271  garnishments, creditor’s claims, or other encumbrances against
 1272  the provider or facility except as provided in s. 651.035(1).
 1273         (e) At the request of either the provider or the office,
 1274  the escrow agent shall issue a statement indicating the status
 1275  of the escrow account.
 1276         (2) In addition, the escrow agreement shall provide that
 1277  the escrow agent or another person designated to act in the
 1278  escrow agent’s place and the provider, except as otherwise
 1279  provided in s. 651.035, shall notify the office in writing at
 1280  least 10 days before the withdrawal of any portion of any funds
 1281  required to be escrowed under the provisions of s. 651.035.
 1282  However, in the event of an emergency and upon petition by the
 1283  provider, the office may waive the 10-day notification period
 1284  and allow a withdrawal of up to 10 percent of the required
 1285  minimum liquid reserve. The office shall have 3 working days to
 1286  deny the petition for the emergency 10-percent withdrawal. If
 1287  the office fails to deny the petition within 3 working days, the
 1288  petition shall be deemed to have been granted by the office. For
 1289  the purpose of this section, “working day” means each day that
 1290  is not a Saturday, Sunday, or legal holiday as defined by
 1291  Florida law. Also for the purpose of this section, the day the
 1292  petition is received by the office shall not be counted as one
 1293  of the 3 days.
 1294         (3)In addition, When entrance fees are required to be
 1295  deposited in an escrow account pursuant to s. 651.022, s.
 1296  651.023, or s. 651.055:
 1297         (a) The provider shall deliver to the resident a written
 1298  receipt. The receipt must show the payor’s name and address, the
 1299  date, the price of the care contract, and the amount of money
 1300  paid. A copy of each receipt, together with the funds, must
 1301  shall be deposited with the escrow agent or as provided in
 1302  paragraph (c). The escrow agent must shall release such funds to
 1303  the provider 7 days after the date of receipt of the funds by
 1304  the escrow agent if the provider, operating under a certificate
 1305  of authority issued by the office, has met the requirements of
 1306  s. 651.023(6). However, if the resident rescinds the contract
 1307  within the 7-day period, the escrow agent must shall release the
 1308  escrowed fees to the resident.
 1309         (b) At the request of an individual resident of a facility,
 1310  the escrow agent shall issue a statement indicating the status
 1311  of the resident’s portion of the escrow account.
 1312         (c) At the request of an individual resident of a facility,
 1313  the provider may hold the check for the 7-day period and may
 1314  shall not deposit it during this time period. If the resident
 1315  rescinds the contract within the 7-day period, the check must
 1316  shall be immediately returned to the resident. Upon the
 1317  expiration of the 7 days, the provider shall deposit the check.
 1318         (d) A provider may assess a nonrefundable fee, which is
 1319  separate from the entrance fee, for processing a prospective
 1320  resident’s application for continuing care or continuing care
 1321  at-home.
 1322         (3)(4) Any fees of $1,500 or less which are assessed with
 1323  respect to prospective residents to have their names placed on a
 1324  facility’s waiting list are shall not be subject to the escrow
 1325  provisions of this section.
 1326         (4)(5) When funds are required to be deposited in an escrow
 1327  account pursuant to s. 651.022 or, s. 651.023, or s. 651.035,
 1328  the following shall apply:
 1329         (a) The escrow agreement must shall require that the escrow
 1330  agent furnish the provider with a quarterly statement indicating
 1331  the amount of any disbursements from or deposits to the escrow
 1332  account and the condition of the account during the period
 1333  covered by the statement. The agreement must shall require that
 1334  the statement be furnished to the provider by the escrow agent
 1335  on or before the 10th day of the month following the end of the
 1336  quarter for which the statement is due. If the escrow agent does
 1337  not provide the quarterly statement to the provider on or before
 1338  the 10th day of the month following the month for which the
 1339  statement is due, the office may, in its discretion, levy
 1340  against the escrow agent a fine not to exceed $25 a day for each
 1341  day of noncompliance with the provisions of this subsection.
 1342         (b) If the escrow agent does not provide the quarterly
 1343  statement to the provider on or before the 10th day of the month
 1344  following the quarter for which the statement is due, the
 1345  provider must shall, on or before the 15th day of the month
 1346  following the quarter for which the statement is due, send a
 1347  written request for the statement to the escrow agent by
 1348  certified mail return receipt requested.
 1349         (c) On or before the 20th day of the month following the
 1350  quarter for which the statement is due, the provider shall file
 1351  with the office a copy of the escrow agent’s statement or, if
 1352  the provider has not received the escrow agent’s statement, a
 1353  copy of the written request to the escrow agent for the
 1354  statement.
 1355         (d) The office may, in its discretion, in addition to any
 1356  other penalty that may be provided for under this chapter, levy
 1357  a fine against the provider not to exceed $25 a day for each day
 1358  the provider fails to comply with the provisions of this
 1359  subsection.
 1360         (e) Funds held on deposit with the department are exempt
 1361  from the reporting requirements of this subsection.
 1362         (5) The escrow agent may not release or otherwise permit
 1363  the transfer of funds without the written approval of the
 1364  office, except as described in paragraph (2)(a).
 1365         Section 15. Section 651.034, Florida Statutes, is created
 1366  to read:
 1367         651.034 Contractual liability reserve.—
 1368         (1) A provider shall maintain a reserve for the benefit of
 1369  residents in an amount determined by an actuary to be
 1370  appropriate given the amount of the provider’s contractual
 1371  obligations to residents, including refunds and medical care.
 1372         (2)The provider must revise the reserve amount annually
 1373  and submit the provider’s calculation of the reserve amount to
 1374  the office concurrently with the annual report.
 1375         (3) The reserve may be invested in any combination of the
 1376  following:
 1377         (a) Cash or cash equivalents;
 1378         (b) Mutual funds, equities, or investment grade bonds that
 1379  accumulate interest or earnings;
 1380         (c) Clean, irrevocable, unconditional evergreen letters of
 1381  credit issued or confirmed by a qualified United States
 1382  financial institution that is regulated, supervised, and
 1383  examined by federal or state authorities having regulatory
 1384  authority over banks and trust companies; or
 1385         (d) Real property, subject to all of the following
 1386  conditions:
 1387         1. With the prior written approval of the office, up to 70
 1388  percent of the reserves may be held as net equity in the real
 1389  property of the facility.
 1390         2. Not more than 50 percent of the provider’s net equity in
 1391  the real property may be allocated as part of the reserve. The
 1392  net equity is the book value, assessed value, or current
 1393  appraised value within 12 months before the end of the fiscal
 1394  year, less any depreciation and encumbrances, as recorded on
 1395  audited financial statements acceptable to the office.
 1396         (4) The provider shall submit to the office, at least once
 1397  every 3 years with the annual report, an actuarial opinion as to
 1398  the provider’s actuarial financial condition, along with the
 1399  supporting actuarial study. The actuarial opinion must be based
 1400  on an actuarial study completed by the actuary. The actuarial
 1401  opinion and supporting actuarial study must examine, refer to,
 1402  and opine on the provider’s actuarial financial condition as of
 1403  December 31 of the reporting year. The actuarial study must
 1404  demonstrate that fees for nonrefundable contracts are not
 1405  increased due to any portion of reserves held under this section
 1406  which are due to refund liability.
 1407         (5) The office may suspend, revoke, or take other
 1408  administrative action against the certificate of authority of a
 1409  facility that violates this section.
 1410         (6) The commission may adopt rules providing the standards
 1411  for the actuarial opinion which are consistent with standards
 1412  adopted by the Actuarial Standards Board on December 31, 2016,
 1413  and subsequent revisions thereto.
 1414         Section 16. Effective January 1, 2018, section 651.035,
 1415  Florida Statutes, is amended to read:
 1416         651.035 Minimum liquid reserve requirements.—
 1417         (1) A provider shall maintain in escrow a minimum liquid
 1418  reserve consisting of the following reserves, as applicable:
 1419         (a) Each provider shall maintain in escrow as a debt
 1420  service reserve the aggregate amount of all principal and
 1421  interest payments due during the fiscal year on any mortgage
 1422  loan or other long-term financing of the facility, including
 1423  property taxes as recorded in the audited financial statements
 1424  required under s. 651.026. The amount must include any leasehold
 1425  payments and all costs related to such payments. If principal
 1426  payments are not due during the fiscal year, the provider shall
 1427  maintain in escrow as a minimum liquid reserve an amount equal
 1428  to interest payments due during the next 12 months on any
 1429  mortgage loan or other long-term financing of the facility,
 1430  including property taxes.
 1431         (b) A provider that has outstanding indebtedness that
 1432  requires a debt service reserve to be held in escrow pursuant to
 1433  a trust indenture or mortgage lien on the facility and for which
 1434  the debt service reserve may only be used to pay principal and
 1435  interest payments on the debt that the debtor is obligated to
 1436  pay, and which may include property taxes and insurance, may
 1437  include such debt service reserve in computing the minimum
 1438  liquid reserve needed to satisfy this subsection if the provider
 1439  furnishes to the office a copy of the agreement under which such
 1440  debt service is held, together with a statement of the amount
 1441  being held in escrow for the debt service reserve, certified by
 1442  the lender or trustee and the provider to be correct. The
 1443  trustee shall provide the office with any information concerning
 1444  the debt service reserve account upon request of the provider or
 1445  the office.
 1446         (c) A Each provider shall at all times maintain a capital
 1447  reserve consisting of:
 1448         1. For the first 12 months of operation, 25 percent of the
 1449  total operating expenses projected in the feasibility study
 1450  required by s. 651.023.
 1451         2. After the first 12 months of operation, 25 percent of
 1452  the total operating expenses in the most recent annual report
 1453  filed pursuant to s. 651.026.
 1454  
 1455  For purposes of this subsection, total annual operating expenses
 1456  include all expenses of the facility except depreciation and
 1457  amortization. Paragraphs (a) and (b) do not apply to obligations
 1458  undertaken after January 1, 2018 in escrow an operating reserve
 1459  equal to 30 percent of the total operating expenses projected in
 1460  the feasibility study required by s. 651.023 for the first 12
 1461  months of operation. Thereafter, each provider shall maintain in
 1462  escrow an operating reserve equal to 15 percent of the total
 1463  operating expenses in the annual report filed pursuant to s.
 1464  651.026. If a provider has been in operation for more than 12
 1465  months, the total annual operating expenses shall be determined
 1466  by averaging the total annual operating expenses reported to the
 1467  office by the number of annual reports filed with the office
 1468  within the preceding 3-year period subject to adjustment if
 1469  there is a change in the number of facilities owned. For
 1470  purposes of this subsection, total annual operating expenses
 1471  include all expenses of the facility except: depreciation and
 1472  amortization; interest and property taxes included in paragraph
 1473  (a); extraordinary expenses that are adequately explained and
 1474  documented in accordance with generally accepted accounting
 1475  principles; liability insurance premiums in excess of those paid
 1476  in calendar year 1999; and changes in the obligation to provide
 1477  future services to current residents. For providers initially
 1478  licensed during or after calendar year 1999, liability insurance
 1479  shall be included in the total operating expenses in an amount
 1480  not to exceed the premium paid during the first 12 months of
 1481  facility operation. Beginning January 1, 1993, the operating
 1482  reserves required under this subsection shall be in an
 1483  unencumbered account held in escrow for the benefit of the
 1484  residents. Such funds may not be encumbered or subject to any
 1485  liens or charges by the escrow agent or judgments, garnishments,
 1486  or creditors’ claims against the provider or facility. However,
 1487  if a facility had a lien, mortgage, trust indenture, or similar
 1488  debt instrument in place before January 1, 1993, which
 1489  encumbered all or any part of the reserves required by this
 1490  subsection and such funds were used to meet the requirements of
 1491  this subsection, then such arrangement may be continued, unless
 1492  a refinancing or acquisition has occurred, and the provider
 1493  shall be in compliance with this subsection.
 1494         (d) Each provider shall maintain in escrow a renewal and
 1495  replacement reserve equal to 15 percent of the total accumulated
 1496  depreciation based on the audited financial statement required
 1497  to be filed pursuant to s. 651.026, not to exceed 15 percent of
 1498  the facility’s average operating expenses for the past 3 fiscal
 1499  years based on the audited financial statements for each of
 1500  those years. For a provider who is an operator of a facility but
 1501  is not the owner and depreciation is not included as part of the
 1502  provider’s financial statement, the renewal and replacement
 1503  reserve required by this paragraph must equal 15 percent of the
 1504  total operating expenses of the provider, as described in this
 1505  section. Each provider licensed before October 1, 1983, shall
 1506  fully fund the renewal and replacement reserve by October 1,
 1507  2003, by multiplying the difference between the former escrow
 1508  requirement and the present escrow requirement by the number of
 1509  years the facility has been in operation after October 1, 1983.
 1510         (2)(a) In facilities where not all residents are under
 1511  continuing care or continuing care at-home contracts, the
 1512  reserve requirements of subsection (1) must shall be computed
 1513  only with respect to the proportional share of operating
 1514  expenses that are applicable to residents. For purposes of this
 1515  calculation, the proportional share must shall be based upon the
 1516  ratio of residents under continuing care or continuing care at
 1517  home contracts to those residents who do not hold such
 1518  contracts.
 1519         (b) In facilities that have voluntarily and permanently
 1520  discontinued marketing continuing care and continuing care at
 1521  home contracts, the office may allow a reduced debt service
 1522  reserve as required in subsection (1) based upon the ratio of
 1523  residents under continuing care or continuing care at-home
 1524  contracts to those residents who do not hold such contracts if
 1525  the office finds that such reduction is not inconsistent with
 1526  the security protections intended by this chapter. In making
 1527  this determination, the office may consider such factors as the
 1528  financial condition of the facility, the provisions of
 1529  outstanding continuing care and continuing care at-home
 1530  contracts, the ratio of residents under continuing care or
 1531  continuing care at-home contracts to those residents who do not
 1532  hold such contracts, the current occupancy rates, the previous
 1533  sales and marketing efforts, the life expectancy of the
 1534  remaining residents, and the written policies of the board of
 1535  directors of the provider or a similar board.
 1536         (3) The capital reserve must be held in a manner that
 1537  accumulates interest and earnings and be invested in cash, cash
 1538  equivalents, mutual funds, equities, or investment grade bonds.
 1539  However, the office may order the immediate transfer of up to
 1540  100 percent of the funds held in the capital reserve to the
 1541  custody of the department pursuant to part III of chapter 625 if
 1542  the office finds that any of the grounds enumerated in s.
 1543  651.106 exist. The office may order such transfer regardless of
 1544  whether the office has suspended or revoked, or intends to
 1545  suspend or revoke, the certificate of authority of the provider
 1546  If principal and interest payments are paid to a trust that is
 1547  beneficially held by the residents as described in s.
 1548  651.023(7), the office may waive all or any portion of the
 1549  escrow requirements for mortgage principal and interest
 1550  contained in subsection (1) if the office finds that such waiver
 1551  is not inconsistent with the security protections intended by
 1552  this chapter.
 1553         (4) A provider may withdraw funds from the debt service
 1554  reserve as provided in s. 625.62 with the written consent of the
 1555  office.
 1556         (a) In order to receive the consent of the office, the
 1557  provider must file the following:
 1558         1. The reason for such filing;
 1559         2. Proof that the amount held on such reserve is in excess
 1560  of the amount required under this section, or documentation
 1561  showing why the withdrawal in necessary for the continued
 1562  operation of the facility; and
 1563         3. Such additional information as the office reasonably
 1564  requires.
 1565         (b) The office shall notify the provider when the file is
 1566  deemed complete. If the provider has complied with all prior
 1567  requests for information, the file is deemed complete after 30
 1568  days without communication from the office.
 1569         (c) Within 30 days after the date a file is deemed
 1570  complete, the office shall provide the provider with written
 1571  notice of its approval or disapproval of the request. The office
 1572  may disapprove any request to withdraw such funds if it
 1573  determines that the withdrawal is not in the best interest of
 1574  the residents The office, upon approval of a plan for fulfilling
 1575  the requirements of this section and upon demonstration by the
 1576  facility of an annual increase in liquid reserves, may extend
 1577  the time for compliance.
 1578         (5) A provider may satisfy the minimum liquid reserve
 1579  requirements of this section by acquiring from a financial
 1580  institution, as specified in paragraph (b), a clean,
 1581  unconditional irrevocable letter of credit equal to the
 1582  requirements of this section.
 1583         (a) The letter of credit must be issued by a financial
 1584  institution participating in the State of Florida Treasury
 1585  Certificate of Deposit Program, and must be approved by the
 1586  office before issuance and before any renewal or modification
 1587  thereof. At a minimum, the letter of credit must provide for:
 1588         1. Ninety days’ prior written notice to both the provider
 1589  and the office of the financial institution’s determination not
 1590  to renew or extend the term of the letter of credit.
 1591         2. Unless otherwise arranged by the provider to the
 1592  satisfaction of the office, deposit by the financial institution
 1593  of letter of credit funds in an account designated by the office
 1594  no later than 30 days before the expiration of the letter of
 1595  credit.
 1596         3. Deposit by the financial institution of letter of credit
 1597  funds in an account designated by the office within 4 business
 1598  days following written instructions from the office that, in the
 1599  sole judgment of the office, funding of the minimum liquid
 1600  reserve is required.
 1601         (b) The terms of the letter of credit must be approved by
 1602  the office and the long-term debt of the financial institution
 1603  providing such letter of credit must be rated in one of their
 1604  top three long-term debt rating categories by either Moody’s
 1605  Investors Service, Standard & Poor’s Corporation, or a
 1606  recognized securities rating agency acceptable to the office.
 1607         (c) The letter of credit must name the office as
 1608  beneficiary.
 1609         (d) Notwithstanding any other provision of this section, a
 1610  provider using a letter of credit pursuant to this subsection
 1611  shall, at all times, have and maintain in escrow an operating
 1612  cash reserve equal to 2 months’ operating expenses as determined
 1613  pursuant to s. 651.026.
 1614         (e) If the issuing financial institution no longer
 1615  participates in the State of Florida Treasury Certificate of
 1616  Deposit Program, such financial institution shall deposit as
 1617  collateral with the department eligible securities, as
 1618  prescribed by s. 625.52, having a market value equal to or
 1619  greater than 100 percent of the stated amount of the letter of
 1620  credit.
 1621         (6) Each fiscal year, a provider may withdraw up to 33
 1622  percent of the total renewal and replacement reserve available.
 1623  The reserve available is equal to the market value of the
 1624  invested reserves at the end of the provider’s prior fiscal
 1625  year. The withdrawal must be used for capital items or major
 1626  repairs.
 1627         (a) Before any funds are eligible for withdrawal, the
 1628  provider must obtain written permission from the office by
 1629  submitting the following:
 1630         1. The amount of the withdrawal and the intended use of the
 1631  proceeds.
 1632         2. A board resolution and sworn affidavit signed by two
 1633  officers or general partners of the provider which indicates
 1634  approval of the withdrawal and use of the funds.
 1635         3. Proof that the provider has met all funding requirements
 1636  for the operating, debt service, and renewal and replacement
 1637  reserves computed for the previous fiscal year.
 1638         4. Anticipated payment schedule for refunding the renewal
 1639  and replacement reserve fund.
 1640         (b) Within 30 days after the withdrawal of funds, the
 1641  provider must begin refunding the reserve account in equal
 1642  monthly payments that allow for a complete funding of the
 1643  withdrawal within 36 months. If the payment schedule required
 1644  under subparagraph (a)4. has changed, the provider must update
 1645  the office with the new payment schedule. If the provider fails
 1646  to make a required monthly payment or the payment is late, the
 1647  provider must notify the office within 5 days after the due date
 1648  of the payment. No additional withdrawals from the renewal and
 1649  replacement reserve will be allowed until all scheduled payments
 1650  are current.
 1651         Section 17. Section 651.036, Florida Statutes, is created
 1652  to read:
 1653         651.036 Dividends and other distributions of assets.—
 1654         (1) As used in this section, the term “extraordinary
 1655  dividend” means a dividend or distribution in excess of the
 1656  greater of the provider’s entire net operating profit for the
 1657  prior fiscal year or 25 percent of the net equity in the
 1658  facility. As used in this subsection, the term “net operating
 1659  profit” means the total revenues of a provider less total
 1660  expenses, excluding amortization and depreciation.
 1661         (2) A provider shall obtain the approval of the office
 1662  before paying any extraordinary dividend or distributing cash or
 1663  other property to stockholders, officers, directors, owners,
 1664  partners, or members.
 1665         (3) A provider shall file notice of its intent to pay any
 1666  dividend or distribution with the office and provide a copy of
 1667  such notice to the chair of the residents’ council at least 30
 1668  days before the payment of such dividend or distribution. If the
 1669  facility does not have a residents’ council, the provider must
 1670  inform all residents of the intent to pay the dividend or
 1671  distribution.
 1672         (4)The office may not approve an extraordinary dividend
 1673  unless, considering the following factors, it determines that
 1674  the distribution or dividend would not jeopardize the financial
 1675  condition of the facility:
 1676         (a) The liquidity, quality, and diversification of the
 1677  facility’s assets and the effect of the distribution or dividend
 1678  on its ability to meet its obligations.
 1679         (b) Reduction of investment portfolio and investment
 1680  income.
 1681         (c) Effects on the facility’s ability to pay resident
 1682  refunds.
 1683         (d) Industrywide financial conditions.
 1684         (e) Prior dividend distributions of the facility.
 1685         (f) Whether the dividend is only a “pass-through” dividend
 1686  from a subsidiary or affiliate of the facility.
 1687         (g) The ongoing maintenance obligations of the facility.
 1688         (5) A director of a provider who knowingly votes for or
 1689  concurs in declaration or payment of a dividend to stockholders
 1690  or members other than as authorized under this section commits a
 1691  misdemeanor of the second degree, punishable as provided in s.
 1692  775.082 or s. 775.083, and is jointly and severally liable,
 1693  together with other such directors likewise voting for or
 1694  concurring, for any loss thereby sustained by creditors of the
 1695  facility to the extent of such dividend.
 1696         (6) A partner or stockholder receiving such an illegal
 1697  dividend is liable in the amount thereof to the facility.
 1698         (7) A partner voting for, concurring in, or otherwise
 1699  facilitating or cooperating in the payment of a distribution
 1700  other than as authorized under this section commits a
 1701  misdemeanor of the second degree, punishable as provided in s.
 1702  775.082 or s. 775.083, and is jointly and severally liable,
 1703  together with other such partners likewise voting for,
 1704  concurring in, facilitating or cooperating in the payment, for
 1705  any loss thereby sustained by creditors of the facility to the
 1706  extent of such dividend.
 1707         (8) The office may revoke or suspend or take other
 1708  administrative action against the certificate of authority of a
 1709  provider that has declared or paid such an illegal dividend or
 1710  distribution.
 1711         Section 18. Section 651.043, Florida Statutes, is created
 1712  to read:
 1713         651.043Approval of change in management.—
 1714         (1) For purposes of this section, the term “management”
 1715  means:
 1716         (a) A manager or management company;
 1717         (b)An officer or director of the provider or of the
 1718  manager or management company;
 1719         (c)Any other person performing duties similar to those of
 1720  persons in paragraphs (a) or (b); or
 1721         (d) A person who exercises or who has the ability to
 1722  exercise effective control of the organization, or who
 1723  influences or has the ability to influence the transaction of
 1724  the business of the provider.
 1725         (2) Effective July 1, 2017, a contract for management must
 1726  be in writing and include a provision that the contract will be
 1727  canceled upon issuance of an order by the office pursuant to
 1728  this section without the application of any cancelation fee or
 1729  penalty.
 1730         (3) A provider must file notice with the office of any
 1731  change in management within 5 days after the appointment of new
 1732  management or the removal of approved management, whichever is
 1733  sooner. For each new management appointment, the provider must
 1734  submit the information required by s. 651.022(2) and a copy of
 1735  the written management contract. The office shall complete its
 1736  review and issue an approval or disapproval of the management
 1737  contract within 30 days after the filing is deemed complete. A
 1738  filing is deemed complete upon receipt of all requested
 1739  information and correction of any error or omission for which
 1740  the applicant was timely notified.
 1741         (4) The office may disapprove new management and order the
 1742  provider to cancel the contract in accordance with the terms of
 1743  the contract and applicable law if the office:
 1744         (a) Finds that the new management is incompetent or
 1745  untrustworthy;
 1746         (b) Finds that the new management is so lacking in
 1747  continuing care retirement community managerial experience as to
 1748  make the proposed operation hazardous to the residents or
 1749  potential residents;
 1750         (c) Finds that the new management is so lacking in
 1751  continuing care experience, ability, and standing as to
 1752  jeopardize the reasonable promise of successful operation; or
 1753         (d) Has good reason to believe that the new management is
 1754  affiliated directly or indirectly through ownership, control,
 1755  reinsurance transactions, or other insurance or business
 1756  relations with any person or persons whose business operations
 1757  are or have been marked by manipulation of assets, accounts, or
 1758  reinsurance or by bad faith, to the detriment of policyholders,
 1759  stockholders, investors, creditors, or the public.
 1760         (5) Management disapproved by the office must be removed
 1761  within 30 days after receipt by the provider of such
 1762  disapproval.
 1763         (6) The office may revoke, suspend, or take other
 1764  administrative action against the certificate of authority of
 1765  the provider if the provider:
 1766         (a) Fails to timely remove management disapproved by the
 1767  office;
 1768         (b) Fails to timely notify the office of a change in
 1769  management;
 1770         (c) Appoints management without a written contract; or
 1771         (d) Repeatedly appoints management who were previously
 1772  disapproved by the office or who are not approvable pursuant to
 1773  subsection (4).
 1774         (7) The provider shall remove any management immediately
 1775  upon discovery of any of the following conditions, if the
 1776  conditions were not disclosed in the notice to the office
 1777  required in subsection (3):
 1778         (a) That any person who exercises or has the ability to
 1779  exercise effective control of the provider, or who influences or
 1780  has the ability to influence the transaction of the business of
 1781  the provider, has been found guilty of, or has pled guilty or no
 1782  contest to, any felony or crime punishable by imprisonment of 1
 1783  year or more under the laws of the United States or any state
 1784  thereof or under the laws of any other country, which involves
 1785  moral turpitude, without regard to whether a judgment or
 1786  conviction has been entered by the court having jurisdiction in
 1787  such case.
 1788         (b) That any person who exercises or has the ability to
 1789  exercise effective control of the organization, or who
 1790  influences or has the ability to influence the transaction of
 1791  the business of the provider, is now or was in the past
 1792  affiliated, directly or indirectly, through ownership interest
 1793  of 10 percent or more in, control of, or reinsurance
 1794  transactions with any business, corporation, or other entity
 1795  that has been found guilty of or has pleaded guilty or nolo
 1796  contendere to any felony or crime punishable by imprisonment for
 1797  1 year or more under the laws of the United States, any state,
 1798  or any other country, regardless of adjudication.
 1799  
 1800  The failure to remove such management is grounds for revocation
 1801  or suspension of the provider’s certificate of authority.
 1802         Section 19. Section 651.051, Florida Statutes, is amended
 1803  to read:
 1804         651.051 Maintenance of assets and records in this state.
 1805  All records and assets of a provider must be maintained in this
 1806  state. No records or assets may be removed from this state by a
 1807  provider unless the office consents to such removal in writing
 1808  before such removal. Such consent must shall be based upon the
 1809  provider’s submitting satisfactory evidence that the removal
 1810  will facilitate and make more economical the operations of the
 1811  provider and will not diminish the service or protection
 1812  thereafter to be given the provider’s residents in this state.
 1813  Before Prior to such removal, the provider must shall give
 1814  notice to the president or chair of the facility’s residents’
 1815  council. If such removal is part of a cash management system
 1816  which has been approved by the office, disclosure of the system
 1817  meets shall meet the notification requirements. The electronic
 1818  storage of records on a web-based, secured storage platform by
 1819  contract with a third party constitutes removal from the state
 1820  and requires prior approval by the office.
 1821         Section 20. Paragraphs (h) and (l) of subsection (1),
 1822  subsection (2), and subsection (5) of section 651.055, Florida
 1823  Statutes, are amended, and a new paragraph (m) is added to
 1824  subsection (1) of that section, to read:
 1825         651.055 Continuing care contracts; right to rescind.—
 1826         (1) Each continuing care contract and each addendum to such
 1827  contract shall be submitted to and approved by the office before
 1828  its use in this state. Thereafter, no other form of contract
 1829  shall be used by the provider until it has been submitted to and
 1830  approved by the office. Each contract must:
 1831         (h) Describe in clear and understandable language, in print
 1832  no smaller than the largest type used in the body of the
 1833  contract, the terms governing the refund of any portion of the
 1834  entrance fee.
 1835         1. For a resident whose contract with the facility provides
 1836  that the resident does not receive a transferable membership or
 1837  ownership right in the facility, and who has occupied his or her
 1838  unit, the refund shall be calculated on a pro rata basis with
 1839  the facility retaining up to 2 percent per month of occupancy by
 1840  the resident and up to a 5 percent processing fee. Such refund
 1841  must be paid within 120 days after giving the notice of
 1842  intention to cancel. For contracts entered into on or after
 1843  January 1, 2016, refunds must be made within 90 days after the
 1844  contract is terminated and the unit is vacated. A resident who
 1845  enters into a contract before January 1, 2016, may voluntarily
 1846  sign a contract addendum approved by the office that provides
 1847  for such revised refund requirement.
 1848         2. In addition to a processing fee not to exceed 5 percent,
 1849  if the contract provides for the facility to retain no more than
 1850  1 percent per month of occupancy by the resident and the
 1851  resident does not receive a transferable membership or ownership
 1852  right in the facility, the contract shall provide that such
 1853  refund will be paid from one of the following:
 1854         a. The proceeds of the next entrance fees received by the
 1855  provider for units for which there are no prior claims by any
 1856  resident until paid in full;
 1857         b. The proceeds of the next entrance fee received by the
 1858  provider for a like or similar unit as specified in the
 1859  residency or reservation contract signed by the resident for
 1860  which there are no prior claims by any resident until paid in
 1861  full; or
 1862         c. The proceeds of the next entrance fee received by the
 1863  provider for the unit that is vacated if the contract is
 1864  approved by the office before October 1, 2015. Providers may not
 1865  use this refund option after October 1, 2016, and must submit a
 1866  new or amended contract with an alternative refund provision to
 1867  the office for approval by August 2, 2016; or.
 1868         d. Unrestricted funds available to the provider within 90
 1869  days after the contract is terminated and the unit is vacated.
 1870         3. For contracts entered into on or after January 1, 2016,
 1871  that provide for a refund in accordance with sub-subparagraph
 1872  2.b., the following provisions apply:
 1873         a. Any refund that is due upon the resident’s death or
 1874  relocation of the resident to another level of care that results
 1875  in the termination of the contract must be paid the earlier of:
 1876         (I) Thirty days after receipt by the provider of the next
 1877  entrance fee received for a like or similar unit for which there
 1878  is no prior claim by any resident until paid in full; or
 1879         (II) No later than a specified maximum number of months or
 1880  years, determined by the provider and specified in the contract,
 1881  after the contract is terminated and the unit is vacated.
 1882         b. Any refund that is due to a resident who vacates the
 1883  unit and voluntarily terminates a contract after the 7-day
 1884  rescission period required in subsection (2) must be paid within
 1885  30 days after receipt by the provider of the next entrance fee
 1886  for a like or similar unit for which there are no prior claims
 1887  by any resident until paid in full and is not subject to the
 1888  provisions in sub-subparagraph a. A contract is voluntarily
 1889  terminated when a resident provides written notice of intent to
 1890  leave and moves out of the continuing care facility after the 7
 1891  day rescission period.
 1892         4. For purposes of this paragraph, the term “like or
 1893  similar unit” means a residential dwelling categorized into a
 1894  group of units which have similar characteristics such as
 1895  comparable square footage, number of bedrooms, location, age of
 1896  construction, or a combination of one or more of these features
 1897  as specified in the residency or reservation contract. Each
 1898  category must consist of at least 5 percent of the total number
 1899  of residential units designated for independent living or 10
 1900  residential units designated for independent living, whichever
 1901  is less. However, a group of units consisting of single family
 1902  homes may contain fewer than 10 units.
 1903         5. If the provider has discontinued marketing continuing
 1904  care contracts, any refund due a resident must be paid within
 1905  200 days after the contract is terminated and the unit is
 1906  vacated.
 1907         6. Unless subsection (5) applies, for any prospective
 1908  resident, regardless of whether or not such a resident receives
 1909  a transferable membership or ownership right in the facility,
 1910  who cancels the contract before occupancy of the unit, the
 1911  entire amount paid toward the entrance fee shall be refunded,
 1912  less a processing fee of up to 5 percent of the entire entrance
 1913  fee; however, the processing fee may not exceed the amount paid
 1914  by the prospective resident. Such refund must be paid within 60
 1915  days after the resident gives notice of intention to cancel. For
 1916  a resident who has occupied his or her unit and who has received
 1917  a transferable membership or ownership right in the facility,
 1918  the foregoing refund provisions do not apply but are deemed
 1919  satisfied by the acquisition or receipt of a transferable
 1920  membership or an ownership right in the facility. The provider
 1921  may not charge any fee for the transfer of membership or sale of
 1922  an ownership right.
 1923         (l) Specify whether the facility is, or is affiliated with,
 1924  a religious, nonprofit, or proprietary organization or
 1925  management entity or whether other facilities are owned or
 1926  operated by a common provider; the extent to which the affiliate
 1927  organization will be responsible for the financial and
 1928  contractual obligations of the provider; and the provisions of
 1929  the federal Internal Revenue Code, if any, under which the
 1930  provider or affiliate is exempt from the payment of federal
 1931  income tax.
 1932         (m) Be marked with a combination of letters or figures
 1933  identifying the contract and differentiating that contract from
 1934  other contracts issued by the same provider. Whenever a change
 1935  is made to a contract, the designating letters or figures
 1936  thereon must be correspondingly changed.
 1937         (2) A resident has the right to rescind a continuing care
 1938  contract and receive a full refund of any funds paid, without
 1939  penalty or forfeiture, within 7 days after executing the
 1940  contract. A resident may not be required to move into the
 1941  facility designated in the contract before the expiration of the
 1942  7-day period. During the 7-day period, the resident’s funds must
 1943  be held in an escrow account unless otherwise requested by the
 1944  resident pursuant to s. 651.033(2)(c) s. 651.033(3)(c).
 1945         (5) Except for a resident who postpones moving into the
 1946  facility but is deemed to have occupied a unit as described in
 1947  paragraph (1)(d), if a prospective resident dies before
 1948  occupying the facility or, through illness, injury, or
 1949  incapacity, is precluded from becoming a resident under the
 1950  terms of the continuing care contract, the contract is
 1951  automatically canceled, and the prospective resident or his or
 1952  her legal representative shall receive a full refund of all
 1953  moneys paid to the facility, except those costs specifically
 1954  incurred by the facility at the request of the prospective
 1955  resident and set forth in writing in a separate addendum, signed
 1956  by both parties, to the contract. Such refund must be paid
 1957  within 60 days after the provider receives notice of the
 1958  prospective resident’s death, illness, injury, or incapacity.
 1959         Section 21. Section 651.058, Florida Statutes, is created
 1960  to read:
 1961         651.058 Grounds for continuing care contract disapproval.
 1962  The office may disapprove any contract filed under s. 651.055 or
 1963  s. 651.057, or withdraw any previous approval thereof, only if
 1964  the contract:
 1965         (1) Is in any respect in violation of, or does not comply
 1966  with, this chapter or any section herein incorporated by
 1967  reference;
 1968         (2) Contains or incorporates by reference, where such
 1969  incorporation is otherwise permissible, any inconsistent,
 1970  ambiguous, or misleading clauses, exceptions, or conditions;
 1971         (3) Has a title, heading, or other indication of its
 1972  provisions which is misleading; or
 1973         (4) Is printed or otherwise reproduced in such manner as to
 1974  render any material provision of the form substantially
 1975  illegible.
 1976         Section 22. Section 651.064, Florida Statutes, is created
 1977  to read:
 1978         651.064 Unfair and deceptive trade practices prohibited.—
 1979         (1) A person may not engage in this state in a trade
 1980  practice that is defined in this section as, or that is
 1981  determined by the office to be, an unfair method of competition
 1982  or an unfair or deceptive act or practice involving the business
 1983  of continuing care.
 1984         (2) A person who violates this part is subject to a fine of
 1985  up to $5,000 for each nonwillful violation and up to $40,000 for
 1986  each willful violation. Fines under this subsection imposed
 1987  against a provider may not exceed an aggregate amount of $20,000
 1988  for all nonwillful violations arising out of the same action or
 1989  an aggregate amount of $200,000 for all willful violations
 1990  arising out of the same action. The fines may be imposed in
 1991  addition to any other applicable penalty, including revocation
 1992  or suspension of the provider’s certificate of authority. Such
 1993  fines may not be used as justification for a rate increase.
 1994         (3) The following are defined as unfair methods of
 1995  competition and unfair or deceptive acts or practices:
 1996         (a) Misrepresentations and false advertising of continuing
 1997  care contracts.—Knowingly making, issuing, circulating, or
 1998  causing to be made, issued, or circulated an estimate,
 1999  illustration, circular, statement, sales presentation, omission,
 2000  comparison, or continuing care contract altered after being
 2001  issued which:
 2002         1. Misrepresents the benefits, advantages, conditions, or
 2003  terms of a continuing care contract;
 2004         2. Misrepresents the dividends or share of the surplus to
 2005  be received on a continuing care contract;
 2006         3. Makes a false or misleading statement as to the
 2007  dividends or share of surplus previously paid on a continuing
 2008  care contract;
 2009         4. Is misleading, or is a misrepresentation, as to the
 2010  financial condition of a person;
 2011         5. Uses a name or title of a continuing care contract or
 2012  continuing care contracts which misrepresents the true nature
 2013  thereof;
 2014         6. Is a misrepresentation for the purpose of inducing, or
 2015  tending to induce, the lapse, forfeiture, exchange, conversion,
 2016  or surrender of a continuing care contract;
 2017         7. Is a misrepresentation for the purpose of effecting a
 2018  pledge or assignment of, or effecting a loan against, a
 2019  continuing care contract;
 2020         8. Misrepresents a continuing care contract as being shares
 2021  of stock or misrepresents ownership interest in the provider or
 2022  facility; or
 2023         9. Uses an advertisement that would mislead or otherwise
 2024  cause a reasonable person to believe mistakenly that the state
 2025  or the Federal Government is responsible for the continuing care
 2026  sales activities of a person or stands behind a person’s credit
 2027  or that a person, the state, or the Federal Government
 2028  guarantees any returns on a continuing care contract or is a
 2029  source of payment of a continuing care obligation of or sold by
 2030  a person.
 2031         (b) False information and advertising generally.—Knowingly
 2032  making, publishing, disseminating, circulating, or placing
 2033  before the public or causing, directly or indirectly, to be
 2034  made, published, disseminated, circulated, or placed before the
 2035  public:
 2036         1. In a newspaper, magazine, or other publication;
 2037         2. In the form of a notice, circular, pamphlet, letter, or
 2038  poster;
 2039         3. Over a radio or television station; or
 2040         4. In any other way,
 2041  
 2042  an advertisement, an announcement, or a statement containing an
 2043  assertion, a representation, or a statement with respect to the
 2044  business of continuing care which is untrue, deceptive, or
 2045  misleading.
 2046         (c) Defamation.—Knowingly making, publishing,
 2047  disseminating, or circulating, directly or indirectly, or
 2048  aiding, abetting, or encouraging the making, publishing,
 2049  disseminating, or circulating, of an oral or written statement
 2050  or a pamphlet, circular, article, or literature which is false
 2051  or maliciously critical of, or derogatory to, a person and which
 2052  is calculated to injure that person.
 2053         (d) Boycott, coercion, and intimidation.—Entering into an
 2054  agreement to commit, or by a concerted action committing, an act
 2055  of boycott, coercion, or intimidation resulting in, or tending
 2056  to result in, unreasonable restraint of, or monopoly in, the
 2057  business of continuing care.
 2058         (e) False statements and entries.
 2059         1. Knowingly:
 2060         a. Filing with a supervisory or other public official;
 2061         b. Making, publishing, disseminating, or circulating;
 2062         c. Delivering to a person;
 2063         d. Placing before the public; or
 2064         e. Causing, directly or indirectly, to be made, published,
 2065  disseminated, circulated, delivered to a person, or placed
 2066  before the public,
 2067  
 2068  a false material statement.
 2069         2. Knowingly making a false entry of a material fact in a
 2070  book, report, or statement of a person, or knowingly omitting to
 2071  make a true entry of a material fact pertaining to the business
 2072  of such person in a book, report, or statement of such person.
 2073         (f) Stock operations and advisory board contracts.—Issuing
 2074  or delivering, promising to issue or deliver, or permitting
 2075  officers or employees to issue or deliver capital stock, benefit
 2076  certificates or shares in a common-law corporation, or
 2077  securities or any special or advisory board contracts or other
 2078  contracts of any kind promising returns or profits as an
 2079  inducement to a continuing care contract.
 2080         (g) Unfair discrimination.
 2081         1. Knowingly making or permitting unfair discrimination
 2082  between individuals of the same actuarially supportable class
 2083  and equal expectation of life in the rates charged for a
 2084  continuing care contract, in the dividends or other benefits
 2085  payable thereon, or in any other term or condition of such
 2086  contract.
 2087         2. Knowingly making or permitting unfair discrimination
 2088  between individuals of the same actuarially supportable class,
 2089  as determined at the time of initial issuance of the coverage,
 2090  and essentially the same hazard in the amount of premium, policy
 2091  fees, or rates charged for a policy or contract of accident,
 2092  disability, or health insurance, in the benefits payable
 2093  thereunder, in the terms or conditions of such contract, or in
 2094  any other manner.
 2095         3. Knowingly refusing to issue, canceling, or otherwise
 2096  terminating a continuing care contract based upon the fact that
 2097  a resident or potential resident has sought or should have
 2098  sought medical or psychological treatment in the past for abuse.
 2099  A provider may refuse to issue a contract based on the potential
 2100  resident’s medical condition but may not consider whether such
 2101  condition was caused by an act of abuse. For purposes of this
 2102  subparagraph, the term “abuse” means the occurrence of one or
 2103  more of the following acts:
 2104         a. Attempting or committing assault, battery, sexual
 2105  assault, or sexual battery;
 2106         b. Placing another in fear of imminent serious bodily
 2107  injury by physical menace;
 2108         c. False imprisonment;
 2109         d. Physically or sexually abusing a minor child; or
 2110         e. An act of domestic violence as defined in s. 741.28.
 2111         (h) Failure to maintain complaint-handling procedures.
 2112  Failure of any person to maintain a complete record of all the
 2113  complaints received since the date of the last examination. For
 2114  purposes of this paragraph, “complaint” means a written
 2115  communication primarily expressing a grievance.
 2116         (i) Misrepresentation in applications.
 2117         1. Knowingly making a false or fraudulent written or oral
 2118  statement or representation on, or relative to, an application
 2119  or negotiation for a continuing care contract for the purpose of
 2120  obtaining a fee, commission, money, or other benefit from an
 2121  insurer, agent, broker, or individual.
 2122         2. Knowingly making a material omission in the comparison
 2123  of a continuing care contract with the contract it replaces for
 2124  the purpose of obtaining a fee, commission, money, or other
 2125  benefit from an insurer, agent, broker, or individual. For the
 2126  purposes of this subparagraph, a “material omission” includes
 2127  the failure to advise the resident or potential resident of the
 2128  existence and operation of a preexisting condition clause in the
 2129  replacement contract.
 2130         (j) Twisting.—Knowingly making a misleading representation,
 2131  incomplete or fraudulent comparison, or fraudulent material
 2132  omission of or with respect to a continuing care contract,
 2133  facility, or provider for the purpose of inducing, or tending to
 2134  induce, a person to lapse, forfeit, surrender, terminate,
 2135  retain, pledge, assign, borrow on, or convert a continuing care
 2136  contract or to buy a continuing care contract in another
 2137  facility.
 2138         (k)Advertising gifts permitted.—Paragraphs (f) and (g) do
 2139  not prohibit a licensed provider or facility from giving to a
 2140  resident, a potential resident, or another person, for the
 2141  purpose of advertising, an article of merchandise having a value
 2142  of not more than $25.
 2143         (l) Free care prohibited.
 2144         1. Advertising, offering, or providing free continuing care
 2145  as an inducement to the purchase or sale of real or personal
 2146  property or of services directly or indirectly connected with
 2147  such real or personal property.
 2148         2. For the purposes of this paragraph, “free” continuing
 2149  care is:
 2150         a. Continuing care for which no identifiable and additional
 2151  charge is made to the purchaser of such real property, personal
 2152  property, or services.
 2153         b. Continuing care for which an identifiable or additional
 2154  charge is made in an amount less than the cost of such
 2155  continuing care as to the seller or other person, other than the
 2156  provider or facility, providing the same.
 2157         (m) Illegal dealings in charges for care.
 2158         1. Knowingly collecting any sum for continuing care, which
 2159  is not then provided, or is not in due course to be provided,
 2160  under a continuing care contract as permitted by this code.
 2161         2. Knowingly collecting any sum for continuing care in
 2162  excess of or less than the charge applicable to continuing care
 2163  as specified in the continuing care contract and as fixed by the
 2164  provider.
 2165         3. A provider may not cancel or otherwise terminate a
 2166  continuing care contract, or require execution of a consent to
 2167  rate endorsement, during the stated contract term for the
 2168  purpose of offering to issue, or issuing, a similar or identical
 2169  contract to the same resident at a higher cost or continuing an
 2170  existing contract at an increased cost.
 2171         4. A provider may not cancel or issue a nonrenewal notice
 2172  on any continuing care contract without complying with any
 2173  applicable cancellation or nonrenewal provision required under
 2174  the Florida Insurance Code.
 2175         (n)Interlocking ownership and management.
 2176         1. A provider may retain, invest in, or acquire the whole
 2177  or any part of the capital stock of any other provider or
 2178  providers, or have a common management with any other provider
 2179  or providers, unless such retention, investment, acquisition, or
 2180  common management is inconsistent with this code or unless by
 2181  reason thereof the business of such providers with the public is
 2182  conducted in a manner that substantially lessens competition
 2183  generally in the continuing care business.
 2184         2. A person otherwise qualified may be a director of two or
 2185  more providers that are competitors unless the effect thereof is
 2186  substantially to lessen competition between providers generally
 2187  or materially tends to create a monopoly.
 2188         3. The limitations contained in this paragraph do not apply
 2189  to a person who is a director of two or more providers under
 2190  common control or management.
 2191         (o) Prohibited arrangements as to funerals.
 2192         1. A provider may not designate in a continuing care
 2193  contract the person to conduct the funeral of the resident, or
 2194  organize, promote, or operate an enterprise or plan to enter
 2195  into a contract with a resident under which the freedom of
 2196  choice in the open market of the person having the legal right
 2197  to such choice is restricted as to the purchase, arrangement,
 2198  and conduct of a funeral service or any part thereof for a
 2199  resident.
 2200         2. A provider may not contract or agree to furnish funeral
 2201  merchandise or services in connection with the disposition of a
 2202  person upon the death of a resident.
 2203         3. A provider may not contract or agree with a funeral
 2204  director or direct disposer to the effect that such funeral
 2205  director or direct disposer conducts the funeral of a resident.
 2206         (p) Certain relations with funeral directors prohibited.
 2207         1. A provider may not:
 2208         a. Affix, or permit to be affixed, advertising matter of
 2209  any kind or character of a licensed funeral director or direct
 2210  disposer to a continuing care contract.
 2211         b. Circulate, or permit to be circulated, any such
 2212  advertising matter with a continuing care contract.
 2213         c. Attempt in any manner or form to influence residents to
 2214  employ the services of a particular licensed funeral director or
 2215  direct disposer.
 2216         2. A provider may not maintain, or permit its agent to
 2217  maintain, an office or place of business in the office,
 2218  establishment, or place of business of a funeral director or
 2219  direct disposer in this state.
 2220         (q) False claims; obtaining or retaining money
 2221  dishonestly.
 2222         1. An agent, physician, resident, or other person who
 2223  causes to be presented to a provider a false claim for payment,
 2224  knowing the same to be false; or
 2225         2. An agent, collector, or other person who represents a
 2226  provider or collects or does business without the authority of
 2227  the provider, secures cash advances by false statements, or
 2228  fails to turn over when required, or satisfactorily account for,
 2229  all collections of such provider,
 2230  
 2231  in addition to the other penalties provided in this act, commits
 2232  a misdemeanor of the second degree and, upon conviction thereof,
 2233  is subject to the penalties provided by s. 775.082 or s.
 2234  775.083.
 2235         (r) Refusal to contract.—In addition to other provisions of
 2236  this code, the refusal to issue a continuing care contract to an
 2237  individual solely because of:
 2238         1. Race, color, creed, marital status, sex, or national
 2239  origin;
 2240         2. The age or lawful occupation of the individual, unless
 2241  there is a reasonable relationship between the age or lawful
 2242  occupation of the individual and the continuing care contract;
 2243         3. The resident’s or potential resident’s failure to agree
 2244  to place collateral business with an insurer;
 2245         4. The resident’s or potential resident’s failure to
 2246  purchase noninsurance services or commodities;
 2247         5. The fact that the resident or potential resident is a
 2248  public official; or
 2249         6. The fact that the resident or potential resident had
 2250  been previously refused a continuing care contract by a
 2251  provider, when such refusal for this reason occurs with such
 2252  frequency as to indicate a general business practice.
 2253         (s) Powers of attorney.—Except as provided in s.
 2254  627.842(2):
 2255         1. Requiring, as a condition to issuance of a continuing
 2256  care contract, that a resident or potential resident execute a
 2257  power of attorney in favor of the provider, facility, or an
 2258  employee thereof; or
 2259         2. Presenting to the resident or potential resident, as a
 2260  routine business practice, a form that authorizes the provider
 2261  or facility to sign the resident’s or potential resident’s name
 2262  on any continuing care document. To be valid, a power of
 2263  attorney must be an act or practice other than as described in
 2264  this paragraph, must be a separate writing in a separate
 2265  document, must be executed with the full knowledge and consent
 2266  of the resident or potential resident who grants the power of
 2267  attorney, must be in the best interests of the resident or
 2268  potential resident, and a copy of the power of attorney must be
 2269  provided to the resident or potential resident at the time of
 2270  the transaction.
 2271         (t) Sliding.—Sliding is the act or practice of:
 2272         1. Representing to the applicant that a specific ancillary
 2273  coverage or product is required by law in conjunction with the
 2274  purchase of a continuing care contract when such coverage or
 2275  product is not required;
 2276         2. Representing to the applicant that a specific ancillary
 2277  coverage or product is included in the continuing care contract
 2278  applied for without an additional charge when such charge is
 2279  required; or
 2280         3. Charging an applicant for a specific ancillary coverage
 2281  or product, in addition to the cost of the continuing care
 2282  contract applied for, without the informed consent of the
 2283  applicant.
 2284         (u)Deceptive use of name.—Using the name or logo of a
 2285  financial institution, as defined in s. 655.005(1), or its
 2286  affiliates or subsidiaries when marketing to or soliciting
 2287  existing or prospective residents if such name or logo is used
 2288  without the written consent of the financial institution and in
 2289  a manner that would lead a reasonable person to believe that the
 2290  material or solicitation originated from, was endorsed by, or is
 2291  related to or the responsibility of the financial institution or
 2292  its affiliates or subsidiaries.
 2293         (v) Fraudulent signatures on an application or policy
 2294  related document.—Willfully submitting to an insurer or provider
 2295  on behalf of a consumer an insurance application, continuing
 2296  care contract, or policy-related document bearing a false or
 2297  fraudulent signature.
 2298         (4) This section does not prohibit a provider from
 2299  negotiating or entering into a contract with a licensed health
 2300  care provider for alternative rates of payment, or from limiting
 2301  payments under a policy pursuant to an agreement with a
 2302  resident, as long as the continuing care provider offers the
 2303  benefit of such alternative rates to residents who select
 2304  designated health care providers.
 2305         (5)(a) Participation in a wellness or health improvement
 2306  program.—A provider may offer a voluntary wellness or health
 2307  improvement program and may encourage or reward participation in
 2308  the program by authorizing rewards or incentives, including, but
 2309  not limited to, merchandise, gift cards, debit cards, or
 2310  discounts on fees. An advertisement of the program is not
 2311  subject to the limitations set forth in paragraph (1)(m).
 2312         (b) Verification of medical condition by nonparticipants
 2313  due to medical condition.—A provider may require a resident to
 2314  provide verification, such as an affirming statement from the
 2315  resident’s physician, that the resident’s medical condition
 2316  makes it unreasonably difficult or inadvisable to participate in
 2317  the wellness or health improvement program in order for that
 2318  nonparticipant to receive the reward or incentive.
 2319         (c) Disclosure requirement.—A reward or incentive offered
 2320  under this subsection must be disclosed in the contract.
 2321         (d) Other incentives.—This subsection does not prohibit
 2322  providers from offering other incentives or rewards for
 2323  adherence to a wellness or health improvement program if
 2324  otherwise authorized by state or federal law.
 2325         Section 23. Subsection (1) of section 651.071, Florida
 2326  Statutes, is amended to read:
 2327         651.071 Contracts as preferred claims on liquidation or
 2328  receivership.—
 2329         (1) In the event of receivership or liquidation proceedings
 2330  against a provider, all continuing care and continuing care at
 2331  home contracts executed by a provider are shall be deemed
 2332  policyholder loss preferred claims pursuant to s. 631.271
 2333  against all assets owned by the provider; however, such claims
 2334  are subordinate to any secured claim.
 2335         Section 24. Present paragraphs (c) through (h) of
 2336  subsection (2) of section 651.091, Florida Statutes, are
 2337  redesignated as paragraphs (d) through (i), respectively, new
 2338  paragraphs (c), (j), and (k) are added to that subsection,
 2339  present paragraph (e) of subsection (2) and paragraphs (c) and
 2340  (g) of subsection (3) of that section are amended, paragraphs
 2341  (j) through (m) are added to subsection (3) of that section, and
 2342  paragraph (d) of subsection (3) of that section is republished,
 2343  to read:
 2344         651.091 Availability, distribution, and posting of reports
 2345  and records; requirement of full disclosure.—
 2346         (2) Every continuing care facility shall:
 2347         (c) Provide notice to the president or chair of the
 2348  residents’ council within 3 business days of issuance of an
 2349  examination report or the initiation of any legal or
 2350  administrative proceeding by the office or the department and
 2351  include a copy of such document.
 2352         (f)(e)Deliver the information described in s. 651.085(4)
 2353  in writing to the president or chair of the residents’ council
 2354  and make supporting documentation available upon request Notify
 2355  the residents’ council of any plans filed with the office to
 2356  obtain new financing, additional financing, or refinancing for
 2357  the facility and of any applications to the office for any
 2358  expansion of the facility.
 2359         (j) Provide to the president or chair of the residents’
 2360  council a copy of any notice filed with the office relating to
 2361  any change in ownership within 3 business days after the receipt
 2362  of such filing by the provider.
 2363         (k) Make the information available to prospective residents
 2364  pursuant to paragraph (3)(d) available to current residents and
 2365  provide notice of changes to that information to the president
 2366  or chair of the residents’ council within 3 business days.
 2367         (3) Before entering into a contract to furnish continuing
 2368  care or continuing care at-home, the provider undertaking to
 2369  furnish the care, or the agent of the provider, shall make full
 2370  disclosure, and provide copies of the disclosure documents to
 2371  the prospective resident or his or her legal representative, of
 2372  the following information:
 2373         (c) All ownership interests and lease agreements, including
 2374  information specified in s. 651.022(2)(b)4. s. 651.022(2)(b)8.
 2375         (d) In keeping with the intent of this subsection relating
 2376  to disclosure, the provider shall make available for review
 2377  master plans approved by the provider’s governing board and any
 2378  plans for expansion or phased development, to the extent that
 2379  the availability of such plans does not put at risk real estate,
 2380  financing, acquisition, negotiations, or other implementation of
 2381  operational plans and thus jeopardize the success of
 2382  negotiations, operations, and development.
 2383         (g) A statement of the reserve requirements of ss. 651.034
 2384  and 651.035 and the amounts required to be held for each reserve
 2385  as of the date of the last annual statement to the office The
 2386  amount and location of any reserve funds required by this
 2387  chapter, and the name of the person or entity having a claim to
 2388  such funds in the event of a bankruptcy, foreclosure, or
 2389  rehabilitation proceeding.
 2390         (j) Notice of the issuance of an examination report or the
 2391  initiation of any legal or administrative proceeding by the
 2392  office or the department, including a copy of such document.
 2393         (k)Notice that the entrance fee is the property of the
 2394  provider after the expiration of the 7-day escrow requirement
 2395  under s. 651.055(2).
 2396         (l) If the provider operates multiple facilities, a
 2397  disclosure of any distribution of assets or income between
 2398  facilities that may occur and the manner in which such
 2399  distributions would be made, or a statement that such
 2400  distributions will not occur.
 2401         (m) Notice of any holding company system or obligated group
 2402  of which the provider is a member.
 2403         Section 25. Subsection (1) of section 651.105, Florida
 2404  Statutes, is amended, and subsection (7) is added to that
 2405  section, to read:
 2406         651.105 Examination and inspections.—
 2407         (1) The office may at any time, and shall at least once
 2408  every 3 years, examine the business of any applicant for a
 2409  certificate of authority and any provider engaged in the
 2410  execution of care contracts or engaged in the performance of
 2411  obligations under such contracts, in the same manner as is
 2412  provided for the examination of insurance companies pursuant to
 2413  ss. 624.316 and 624.318 s. 624.316. For a provider as described
 2414  defined in s. 651.028, such examinations shall take place at
 2415  least once every 5 years. Such examinations shall be made by a
 2416  representative or examiner designated by the office whose
 2417  compensation will be fixed by the office pursuant to s. 624.320.
 2418  Routine examinations may be made by having the necessary
 2419  documents submitted to the office; and, for this purpose,
 2420  financial documents and records conforming to commonly accepted
 2421  accounting principles and practices, as required under s.
 2422  651.026, are deemed adequate. The final written report of each
 2423  examination must be filed with the office and, when so filed,
 2424  constitutes a public record. Any provider being examined shall,
 2425  upon request, give reasonable and timely access to all of its
 2426  records. The representative or examiner designated by the office
 2427  may at any time examine the records and affairs and inspect the
 2428  physical property of any provider, whether in connection with a
 2429  formal examination or not.
 2430         (7)(a)Effective January 1, 2018, the office may examine a
 2431  provider and its affiliates to ascertain the financial condition
 2432  of the provider, including the enterprise risk to the provider
 2433  by the ultimate controlling party, or by any entity or
 2434  combination of entities within the holding company system, or by
 2435  the holding company system on a consolidated basis.
 2436         (b) As used in this subsection, the term “enterprise risk”
 2437  means an activity, circumstance, event, or series of events
 2438  involving one or more affiliates of a provider which, if not
 2439  remedied promptly, is likely to have a materially adverse effect
 2440  upon the financial condition or liquidity of the provider or its
 2441  holding company system as a whole, including anything that would
 2442  cause the provider to be in a hazardous financial condition.
 2443         Section 26. Section 651.1055, Florida Statutes, is created
 2444  to read:
 2445         651.1055 Duty of provider to cooperate.—A provider has a
 2446  duty to cooperate with the office, including responding to
 2447  written correspondence and providing data, financial statements,
 2448  and pertinent information as requested by the office.
 2449         Section 27. Section 651.106, Florida Statutes, is amended
 2450  to read:
 2451         651.106 Grounds for discretionary denial refusal,
 2452  suspension, or revocation of certificate of authority.—The
 2453  office may deny an application or, suspend, or revoke the
 2454  provisional certificate of authority or the certificate of
 2455  authority of any applicant or provider if it finds that any one
 2456  or more of the following grounds applicable to the applicant or
 2457  provider exist:
 2458         (1) Failure by the provider to continue to meet the
 2459  requirements for the authority originally granted.
 2460         (2) Failure by the provider to meet one or more of the
 2461  qualifications for the authority specified by this chapter.
 2462         (3) Material misstatement, misrepresentation, or fraud in
 2463  obtaining the authority, or in attempting to obtain the same.
 2464         (4) Demonstrated lack of fitness or trustworthiness.
 2465         (5) Fraudulent or dishonest practices of management in the
 2466  conduct of business.
 2467         (6) Misappropriation, conversion, or withholding of moneys.
 2468         (7) Failure to comply with, or violation of, any proper
 2469  order or rule of the office or commission or violation of any
 2470  provision of this chapter.
 2471         (8) The insolvent or impaired condition of the provider or
 2472  the provider’s being in such condition or using such methods and
 2473  practices in the conduct of its business as to render its
 2474  further transactions in this state hazardous or injurious to the
 2475  public.
 2476         (9) Refusal by the provider to be examined or to produce
 2477  its accounts, records, and files for examination, or refusal by
 2478  any of its officers to give information with respect to its
 2479  affairs or to perform any other legal obligation under this
 2480  chapter when required by the office.
 2481         (10) Failure by the provider to comply with the
 2482  requirements of s. 651.026 or s. 651.033.
 2483         (11) Failure by the provider to maintain escrow accounts or
 2484  funds as required by this chapter.
 2485         (12) Failure by the provider to meet the requirements of
 2486  this chapter for disclosure of information to residents
 2487  concerning the facility, its ownership, its management, its
 2488  development, or its financial condition or failure to honor its
 2489  continuing care or continuing care at-home contracts.
 2490         (13) Any cause for which issuance of the license could have
 2491  been refused had it then existed and been known to the office.
 2492         (14) Having been found guilty of, or having pleaded guilty
 2493  or nolo contendere to, a felony in this state or any other
 2494  state, without regard to whether a judgment or conviction has
 2495  been entered by the court having jurisdiction of such cases.
 2496         (15) In the conduct of business under the license, engaging
 2497  in unfair methods of competition or in unfair or deceptive acts
 2498  or practices prohibited under s. 651.064 part IX of chapter 626.
 2499         (16) A pattern of bankrupt enterprises.
 2500         (17)(a) The ownership, control, or management of the
 2501  organization includes any person:
 2502         1. Who is incompetent or untrustworthy;
 2503         2. Who is so lacking in continuing care expertise as to
 2504  make the operation of the provider hazardous to potential and
 2505  existing residents;
 2506         3. Who is so lacking in continuing care experience,
 2507  ability, and standing as to jeopardize the reasonable promise of
 2508  successful operation;
 2509         4. Who is affiliated, directly or indirectly, through
 2510  ownership, control, reinsurance transactions, or other business
 2511  relations, with any person whose business operations are or have
 2512  been marked by business practices or conduct that is to the
 2513  detriment of the public, stockholders, investors, or creditors;
 2514  or
 2515         5. Whose business operations are or have been marked by
 2516  business practices or conduct that is to the detriment of the
 2517  public, stockholders, investors, or creditors;
 2518         (b) Any person, including any stock subscriber,
 2519  stockholder, or incorporator, who exercises or has the ability
 2520  to exercise effective control of the organization, or who
 2521  influences or has the ability to influence the transaction of
 2522  the provider’s business, does not possess the financial standing
 2523  and business experience for the successful operation of the
 2524  provider.
 2525         (18) The provider has not filed a notice of change in
 2526  management, fails to remove a disapproved manager, or persists
 2527  in appointing disapproved or unapprovable managers.
 2528  
 2529  Revocation of a certificate of authority under this section does
 2530  not relieve a provider from the provider’s obligation to
 2531  residents under the terms and conditions of any continuing care
 2532  or continuing care at-home contract between the provider and
 2533  residents or the provisions of this chapter. The provider shall
 2534  continue to file its annual statement and pay license fees to
 2535  the office as required under this chapter as if the certificate
 2536  of authority had continued in full force, but the provider shall
 2537  not issue any new contracts. The office may seek an action in
 2538  the circuit court of Leon County to enforce the office’s order
 2539  and the provisions of this section.
 2540         Section 28. Section 651.1065, Florida Statutes, is created
 2541  to read:
 2542         651.1065 Soliciting or accepting new continuing care
 2543  contracts by impaired or insolvent facilities or providers.—
 2544         (1) Whether or not delinquency proceedings as to a
 2545  continuing care retirement community have been or are to be
 2546  initiated, a proprietor, general partner, member, officer,
 2547  director, trustee, or manager of a continuing care retirement
 2548  community, except with the written permission of the office, may
 2549  not permit the continuing care retirement community to solicit
 2550  or accept new continuing care contracts in this state after the
 2551  proprietor, general partner, member, officer, director, trustee,
 2552  or manager knew, or reasonably should have known, that the
 2553  continuing care retirement community was impaired or insolvent.
 2554         (2) A proprietor, general partner, member, officer,
 2555  director, trustee, or manager who violates this section commits
 2556  a felony of the third degree, punishable as provided in s.
 2557  775.082, s. 775.083, or s. 775.084.
 2558         Section 29. Subsection (1) of section 651.107, Florida
 2559  Statutes, is amended, and subsection (4) is added to that
 2560  section, to read:
 2561         651.107 Duration of suspension; obligations during
 2562  suspension period; reinstatement.—
 2563         (1) Suspension of a certificate of authority shall be for
 2564  such period, not to exceed 2 years 1 year, as is fixed by the
 2565  office in the order of suspension or until the occurrence of a
 2566  specific event necessary for remedying the reasons for
 2567  suspension, unless the office shortens or rescinds such
 2568  suspension or the order of suspension is modified, rescinded, or
 2569  reversed.
 2570         (4) If the suspension of the certificate of authority was
 2571  until the occurrence of a specific event or events and the
 2572  certificate of authority has not been otherwise terminated, upon
 2573  the presentation of evidence satisfactory to the office that the
 2574  specific event or events have occurred, the provider’s
 2575  certificate of authority must be reinstated unless the office
 2576  finds that the provider is otherwise not in compliance with the
 2577  requirements of this chapter. The office shall promptly notify
 2578  the provider of such reinstatement, but the provider may not
 2579  consider its certificate of authority reinstated until so
 2580  notified by the office. If satisfactory evidence as to the
 2581  occurrence of the specific event or events has not been
 2582  presented to the office within 2 years of the date of such
 2583  suspension, the certificate of authority is deemed to have
 2584  expired as of 2 years from the date of suspension or upon
 2585  failure of the provider to continue the certificate during the
 2586  suspension period in accordance with subsection (2), whichever
 2587  first occurs.
 2588         Section 30. Section 651.114, Florida Statutes, is amended
 2589  to read:
 2590         651.114 Delinquency proceedings; remedial rights.—
 2591         (1) Upon determination by the office that a provider is not
 2592  in compliance with this chapter, the office may notify the chair
 2593  of the Continuing Care Advisory Council, who may assist the
 2594  office in formulating a corrective action plan.
 2595         (2) Within 30 days after a request by either the advisory
 2596  council or the office, a provider shall make a plan for
 2597  obtaining compliance or solvency available to the advisory
 2598  council and the office, within 30 days after being requested to
 2599  do so by the council, a plan for obtaining compliance or
 2600  solvency.
 2601         (3) Within 30 days after receipt of a plan for obtaining
 2602  compliance or solvency, the office or notification, the advisory
 2603  council, at the request of the office, shall:
 2604         (a) Consider and evaluate the plan submitted by the
 2605  provider.
 2606         (b) Discuss the problem and solutions with the provider.
 2607         (c) Conduct such other business as is necessary.
 2608         (d) Report its findings and recommendations to the office,
 2609  which may require additional modification of the plan.
 2610  
 2611  This subsection may not be interpreted so as to delay or prevent
 2612  the office from taking any regulatory measures it deems
 2613  necessary regarding the provider that submitted the plan.
 2614         (4) If the financial condition of the continuing care
 2615  facility or provider is impaired or is such that if not modified
 2616  or corrected, its continued operation would result in
 2617  insolvency, the office may direct the provider to formulate and
 2618  file with the office a corrective action plan. If the provider
 2619  fails to submit a plan within 30 days after the office’s
 2620  directive, or submits a plan that is insufficient to correct the
 2621  condition, the office may specify a plan and direct the provider
 2622  to implement the plan.
 2623         (5)(4) After receiving approval of a plan by the office,
 2624  the provider shall submit a progress report monthly to the
 2625  advisory council and or the office, or both, in a manner
 2626  prescribed by the office. After 3 months, or at any earlier time
 2627  deemed necessary, the council shall evaluate the progress by the
 2628  provider and shall advise the office of its findings.
 2629         (6) Supervision by the office under ss. 624.80-624.87
 2630  constitutes the exclusive means of supervising a provider
 2631  licensed under this chapter.
 2632         (7)(5)If Should the office finds find that sufficient
 2633  grounds exist for rehabilitation, liquidation, conservation,
 2634  reorganization, seizure, or summary proceedings of an insurer as
 2635  set forth in ss. 631.051, 631.061, and 631.071, the department
 2636  office may petition for an appropriate court order or may pursue
 2637  such other relief as is afforded in part I of chapter 631.
 2638  Before invoking its powers under part I of chapter 631, the
 2639  department office shall notify the chair of the advisory
 2640  council.
 2641         (8) A delinquency proceeding under part I of chapter 631
 2642  constitutes the sole and exclusive means of conserving,
 2643  rehabilitating, liquidating, or seizing a provider licensed
 2644  under this chapter. Notwithstanding s. 631.011, impairment of a
 2645  provider for the purposes of s. 631.051 is defined according to
 2646  the term “impaired” in s. 651.011.
 2647         (9)(6) In the event an order of conservation,
 2648  rehabilitation, liquidation, or conservation, reorganization,
 2649  seizure, or summary proceeding has been entered against a
 2650  provider, the department and office are vested with all of the
 2651  powers and duties they have under the provisions of part I of
 2652  chapter 631 in regard to delinquency proceedings of insurance
 2653  companies. A provider shall give written notice of the
 2654  proceeding to its residents within 3 business days after the
 2655  initiation of a delinquency proceeding under chapter 631 and
 2656  shall include a notice of the delinquency proceeding in any
 2657  written materials provided to prospective residents.
 2658         (7) If the financial condition of the continuing care
 2659  facility or provider is such that, if not modified or corrected,
 2660  its continued operation would result in insolvency, the office
 2661  may direct the provider to formulate and file with the office a
 2662  corrective action plan. If the provider fails to submit a plan
 2663  within 30 days after the office’s directive or submits a plan
 2664  that is insufficient to correct the condition, the office may
 2665  specify a plan and direct the provider to implement the plan.
 2666         (8)(a) The rights of the office described in this section
 2667  are subordinate to the rights of a trustee or lender pursuant to
 2668  the terms of a resolution, ordinance, loan agreement, indenture
 2669  of trust, mortgage, lease, security agreement, or other
 2670  instrument creating or securing bonds or notes issued to finance
 2671  a facility, and the office, subject to the provisions of
 2672  paragraph (c), shall not exercise its remedial rights provided
 2673  under this section and ss. 651.018, 651.106, 651.108, and
 2674  651.116 with respect to a facility that is subject to a lien,
 2675  mortgage, lease, or other encumbrance or trust indenture
 2676  securing bonds or notes issued in connection with the financing
 2677  of the facility, if the trustee or lender, by inclusion or by
 2678  amendment to the loan documents or by a separate contract with
 2679  the office, agrees that the rights of residents under a
 2680  continuing care or continuing care at-home contract will be
 2681  honored and will not be disturbed by a foreclosure or conveyance
 2682  in lieu thereof as long as the resident:
 2683         1. Is current in the payment of all monetary obligations
 2684  required by the contract;
 2685         2. Is in compliance and continues to comply with all
 2686  provisions of the contract; and
 2687         3. Has asserted no claim inconsistent with the rights of
 2688  the trustee or lender.
 2689         (b) This subsection does not require a trustee or lender
 2690  to:
 2691         1. Continue to engage in the marketing or resale of new
 2692  continuing care or continuing care at-home contracts;
 2693         2. Pay any rebate of entrance fees as may be required by a
 2694  resident’s continuing care or continuing care at-home contract
 2695  as of the date of acquisition of the facility by the trustee or
 2696  lender and until expiration of the period described in paragraph
 2697  (d);
 2698         3. Be responsible for any act or omission of any owner or
 2699  operator of the facility arising before the acquisition of the
 2700  facility by the trustee or lender; or
 2701         4. Provide services to the residents to the extent that the
 2702  trustee or lender would be required to advance or expend funds
 2703  that have not been designated or set aside for such purposes.
 2704         (c) Should the office determine, at any time during the
 2705  suspension of its remedial rights as provided in paragraph (a),
 2706  that the trustee or lender is not in compliance with paragraph
 2707  (a), or that a lender or trustee has assigned or has agreed to
 2708  assign all or a portion of a delinquent or defaulted loan to a
 2709  third party without the office’s written consent, the office
 2710  shall notify the trustee or lender in writing of its
 2711  determination, setting forth the reasons giving rise to the
 2712  determination and specifying those remedial rights afforded to
 2713  the office which the office shall then reinstate.
 2714         (d) Upon acquisition of a facility by a trustee or lender
 2715  and evidence satisfactory to the office that the requirements of
 2716  paragraph (a) have been met, the office shall issue a 90-day
 2717  temporary certificate of authority granting the trustee or
 2718  lender the authority to engage in the business of providing
 2719  continuing care or continuing care at-home and to issue
 2720  continuing care or continuing care at-home contracts subject to
 2721  the office’s right to immediately suspend or revoke the
 2722  temporary certificate of authority if the office determines that
 2723  any of the grounds described in s. 651.106 apply to the trustee
 2724  or lender or that the terms of the contract used as the basis
 2725  for the issuance of the temporary certificate of authority by
 2726  the office have not been or are not being met by the trustee or
 2727  lender since the date of acquisition.
 2728         Section 31. Section 651.1141, Florida Statutes, is created
 2729  to read:
 2730         651.1141 Immediate final orders.—The Legislature finds that
 2731  a violation of s. 651.024, s. 651.0245, s. 651.025, s.
 2732  651.035(3), s. 651.036, s. 651.043, s. 651.083, or s. 651.105
 2733  constitutes an immediate danger to the public health, safety, or
 2734  welfare. Pursuant to s. 120.569, the office may issue an
 2735  immediate final order to cease and desist if it finds that a
 2736  provider is in violation of such sections.
 2737         Section 32. Section 651.1151, Florida Statutes, is amended
 2738  to read:
 2739         651.1151 Administrative, vendor, and management contracts.—
 2740         (1) The office may require A provider must to submit to the
 2741  office any contract for administrative, vendor, or management
 2742  services if the office has information and belief that a
 2743  provider has entered into a contract with an affiliate, an
 2744  entity controlled by the provider, or an entity controlled by an
 2745  affiliate of the provider, which has not been disclosed to the
 2746  office or which contract requires the provider to pay a fee that
 2747  is unreasonably high in relation to the service provided.
 2748         (2) The office may disapprove a contract for
 2749  administrative, vendor, or management services if it finds that
 2750  the fees to be paid are so unreasonably high as compared with
 2751  similar contracts entered into by other providers in similar
 2752  circumstances that the contract is detrimental to the facility
 2753  or its residents.
 2754         (3)(2) After review of the contract, the office may order
 2755  the provider to cancel the contract in accordance with the terms
 2756  of the contract and applicable law if it determines that the
 2757  fees to be paid are so unreasonably high as compared with
 2758  similar contracts entered into by other providers in similar
 2759  circumstances that the contract is detrimental to the facility
 2760  or its residents.
 2761         (4)(3) Any contract with an affiliate, an entity controlled
 2762  by the provider, or an entity controlled by an affiliate of the
 2763  provider for administrative, vendor, or management services
 2764  entered into or renewed after October 1, 1991, must include a
 2765  provision that the contract will be canceled upon issuance of an
 2766  order by the office pursuant to this section. A copy of the
 2767  current management services contract, pursuant to this section,
 2768  if any, must be on file in the marketing office or other area
 2769  accessible to residents and the appropriate residents’ council.
 2770         (5)(4) Any action of the office under this section is
 2771  subject to review pursuant to the procedures provided in chapter
 2772  120.
 2773         Section 33. Section 651.119, Florida Statutes, is amended
 2774  to read:
 2775         651.119 Assistance to persons affected by closure due to
 2776  liquidation or pending liquidation.—
 2777         (1) If a facility closes and ceases to operate as a result
 2778  of liquidation or pending liquidation and residents are forced
 2779  to relocate, the department shall become a creditor of the
 2780  facility for the purpose of providing entrance fee refunds due
 2781  to the cancellation of continuing care contracts of displaced
 2782  residents, moving expenses for displaced residents, and such
 2783  other care or services as is made possible by the unencumbered
 2784  assets of the facility. To the extent that another provider
 2785  provides, as approved by the office, direct assistance to such
 2786  residents, the cost of such direct assistance shall be offset
 2787  against reserves pursuant to subsection (4). The department
 2788  shall provide proportional reimbursements of such costs to the
 2789  respective providers from such unencumbered assets.
 2790         (2) If the moneys and direct assistance made available
 2791  under subsection (1) are not sufficient to cover moving costs,
 2792  the office may seek voluntary contributions from the reserves
 2793  maintained by providers under ss. 651.034 and 651.035 s. 651.035
 2794  in amounts approved by the office to provide for the moving
 2795  expenses of the residents in moving to another residence within
 2796  the state.
 2797         (3) If the moneys and direct assistance provided under
 2798  subsections (1) and (2) are not sufficient to provide for
 2799  entrance fee refunds due to the cancellation of continuing care
 2800  contracts and the moving expenses of displaced residents in
 2801  moving to other residences within the state, the office may levy
 2802  pro rata assessments on the reserves of providers maintained
 2803  under ss. 651.034 and 651.035 s. 651.035 for such entrance fee
 2804  refunds and moving expenses of any displaced resident who lacks
 2805  sufficient assets to pay for such moving expenses. The
 2806  assessments for such entrance fee refunds and moving expenses on
 2807  any particular provider may not exceed for any 12-month period
 2808  an aggregate of 5 1 percent of the unencumbered portion of the
 2809  reserves maintained by the provider under ss. 651.034 and
 2810  651.035 s. 651.035. If the office determines that payment of an
 2811  assessment under this subsection would impair the financial
 2812  standing of a facility or its residents, the office may waive or
 2813  temporarily defer all or part of the assessment with respect to
 2814  that provider. The office shall apply any moneys voluntarily
 2815  paid by a provider under subsection (1) or subsection (2) to
 2816  satisfaction of assessments under this subsection.
 2817         (4) The office shall permanently reduce the reserves
 2818  required of a provider under s. 651.035 to the extent of the
 2819  provider’s costs under subsection (1), voluntary contributions
 2820  under subsection (2), and assessments under subsection (3) for a
 2821  period of 3 years. However, the office shall thereafter raise
 2822  the reserve requirements of a provider to the extent of
 2823  reimbursements paid to the provider under subsection (1) unless
 2824  such increase would raise the reserve requirement above the
 2825  amount required under s. 651.035.
 2826         (5) No payment, contribution, or assessment may be paid by
 2827  a provider under this section if the release of funds from the
 2828  reserves of the provider would violate a bond or lending
 2829  commitment or covenant.
 2830         (6) Moneys received under this section for the support of
 2831  residents shall be kept in a separate fund maintained and
 2832  administered by the department. The Continuing Care Advisory
 2833  Council shall monitor the collection and use of such funds and
 2834  shall advise the office or department on plans for resident
 2835  relocation. The council shall seek the assistance of providers
 2836  licensed under this chapter and other service providers in
 2837  locating alternative housing and care arrangements.
 2838         (7) The amount each displaced resident is entitled to
 2839  receive under this section must be prorated based on the amount
 2840  of available funds held by the department under this section and
 2841  the calculation of the total amount that would be due the
 2842  resident as a result of the cancellation of the resident’s
 2843  continuing care contract. The refund amount paid to a displaced
 2844  resident may not exceed $500,000 or the total amount due the
 2845  resident as an entrance fee refund under the resident’s
 2846  continuing care contract as a result of cancellation of that
 2847  contract, whichever is lesser.
 2848         (8)(7) For the purposes of this section, “moving expenses”
 2849  means transportation expenses and the cost of packing and
 2850  relocating personal belongings.
 2851         (9) For the purposes of this section, the term “entrance
 2852  fee refund” means the amount due the displaced resident under
 2853  the terms of the resident’s continuing care contract as a result
 2854  of the cancellation of the contract.
 2855         Section 34. Subsections (1) and (4) of section 651.125,
 2856  Florida Statutes, are amended to read:
 2857         651.125 Criminal penalties; injunctive relief.—
 2858         (1) Any person who maintains, enters into, or, as manager
 2859  or officer or in any other administrative capacity, assists in
 2860  entering into, maintaining, or performing any continuing care or
 2861  continuing care at-home contract subject to this chapter without
 2862  doing so in pursuance of a valid provisional certificate of
 2863  authority or certificate of authority or renewal thereof, as
 2864  contemplated by or provided in this chapter, or who otherwise
 2865  violates any provision of this chapter or rule adopted in
 2866  pursuance of this chapter, commits a felony of the third degree,
 2867  punishable as provided in s. 775.082 or s. 775.083. Each
 2868  violation of this chapter constitutes a separate offense.
 2869         (4) Any action brought by the office against a provider
 2870  shall not abate by reason of a sale or other transfer of
 2871  ownership of the facility used to provide care, which provider
 2872  is a party to the action, except with the express written
 2873  consent of the director of the office.
 2874         Section 35. Subsection (1) of section 651.131, Florida
 2875  Statutes, is amended to read:
 2876         651.131 Actions under prior law.—
 2877         (1) With respect to any proceedings hereafter instituted by
 2878  any person believing himself or herself to be aggrieved by a
 2879  violation of any of the provisions of former s. 651.01, s.
 2880  651.014, s. 651.019, s. 651.02, s. 651.021, s. 651.022, s.
 2881  651.023, s. 651.024, s. 651.0261, s. 651.03, s. 651.033, s.
 2882  651.035, s. 651.04, s. 651.05, s. 651.051, s. 651.055, s.
 2883  651.06, s. 651.07, s. 651.071, s. 651.072, s. 651.074, s.
 2884  651.076, s. 651.08, s. 651.09, s. 651.091, s. 651.10, s.
 2885  651.105, s. 651.106, s. 651.107, s. 651.11, s. 651.114, s.
 2886  651.115, s. 651.1151, s. 651.119, or s. 651.12, or s. 651.125,
 2887  any resulting judgment shall be limited to the actual monetary
 2888  loss suffered by such person plus reasonable attorney’s fees.
 2889         Section 36. Section 651.132, Florida Statutes, is repealed.
 2890         Section 37. Section 651.012, Florida Statutes, is amended
 2891  to read:
 2892         651.012 Exempted facility; written disclosure of
 2893  exemption.—Any facility exempted under ss. 632.637(1)(e) and
 2894  651.011(17) ss. 632.637(1)(e) and 651.011(12) must provide
 2895  written disclosure of such exemption to each person admitted to
 2896  the facility after October 1, 1996. This disclosure must be
 2897  written using language likely to be understood by the person and
 2898  must briefly explain the exemption.
 2899         Section 38. Except as otherwise expressly provided in this
 2900  act, this act shall take effect July 1, 2017.