Florida Senate - 2023                                     SB 622
       
       
        
       By Senator Yarborough
       
       
       
       
       
       4-00524A-23                                            2023622__
    1                        A bill to be entitled                      
    2         An act relating to continuing care contracts; amending
    3         s. 651.011, F.S.; defining the terms “designated
    4         resident representative” and “residents’ council”;
    5         amending s. 651.0246, F.S.; revising requirements for
    6         feasibility studies submitted by providers applying
    7         for expansions of certificated continuing care
    8         facilities; revising a condition for the release of
    9         certain escrowed funds to a provider; revising the
   10         timeframe in which the Office of Insurance Regulation
   11         must complete its review of an application for
   12         expansion; amending s. 651.026, F.S.; revising
   13         information required to be contained in certain
   14         providers’ financial reports in their annual reports;
   15         amending s. 651.033, F.S.; revising a requirement for
   16         national banks in which escrow accounts are
   17         established; revising a condition under which a
   18         provider may hold and not deposit a resident’s check
   19         for a specified period; amending s. 651.034, F.S.;
   20         revising the timeframe during which the office may
   21         exempt certain providers from certain regulatory
   22         actions; authorizing the office, upon a provider’s
   23         written request, to temporarily suspend financial and
   24         operating requirements under ch. 651, F.S., for
   25         specified reasons; specifying conditions and
   26         requirements for such temporary suspensions; amending
   27         s. 651.035, F.S.; providing that certain documents
   28         relating to a provider’s debt service reserve must
   29         require certain notice to the office before the
   30         withdrawal of debt service reserve funds; specifying
   31         requirements for the notice and for certain plans to
   32         replenish withdrawn funds; revising the calculation of
   33         minimum liquid reserve requirements for certain
   34         facilities; revising requirements for letters of
   35         credit which satisfy minimum liquid reserve
   36         requirements; revising circumstances under which a
   37         provider may withdraw funds held in escrow without the
   38         office’s approval; making a technical change; amending
   39         s. 651.055, F.S.; specifying that a forfeiture penalty
   40         may be deducted from certain resident refunds except
   41         under certain circumstances; conforming a provision to
   42         changes made by the act; amending s. 651.081, F.S.;
   43         specifying the authority of residents’ councils and
   44         the eligibility of persons to participate in
   45         residents’ council matters; deleting a requirement for
   46         open meetings of residents’ councils; amending s.
   47         651.083, F.S.; specifying that a resident has the
   48         right to access ombudsman staff; amending s. 651.085,
   49         F.S.; requiring residents’ councils to nominate and
   50         elect a designated resident representative to
   51         represent them on specified matters; providing
   52         requirements for designated resident representatives;
   53         revising meetings of the full governing body for which
   54         the designated resident representative must be
   55         notified; requiring each facility of certain providers
   56         to have its own designated resident representative;
   57         providing a requirement for certain designated
   58         resident representatives; amending s. 651.091, F.S.;
   59         adding reporting and notice requirements for
   60         continuing care facilities; adding a disclosure
   61         requirement for providers to prospective residents or
   62         their legal representatives; amending s. 651.105,
   63         F.S.; specifying requirements for the office’s
   64         examination of providers and applicants for
   65         certificates of authority; deleting a requirement for
   66         a provider’s representative to give examination
   67         reports and corrective action plans to the governing
   68         body’s executive officer within a certain timeframe;
   69         amending s. 651.118, F.S.; revising applicability of a
   70         specified time limit on the use of sheltered nursing
   71         home beds for certain persons; amending ss. 651.012
   72         and 651.0261, F.S.; conforming cross-references;
   73         providing an effective date.
   74          
   75  Be It Enacted by the Legislature of the State of Florida:
   76  
   77         Section 1. Present subsections (13) through (26) and (27)
   78  of section 651.011, Florida Statutes, are redesignated as
   79  subsections (14) through (27) and (29), respectively, and new
   80  subsection (13) and subsection (28) are added to that section,
   81  to read:
   82         651.011 Definitions.—As used in this chapter, the term:
   83         (13) “Designated resident representative” means a resident
   84  elected by the residents’ council to represent residents on
   85  matters related to changes in fees or services as specified in
   86  s. 651.085(2) and (3).
   87         (28)“Residents’ council” means an organized body
   88  representing the resident population of a certified facility. A
   89  residents’ council shall serve as a liaison between residents
   90  and the appropriate representative of the provider.
   91         Section 2. Paragraph (a) of subsection (2), paragraph (b)
   92  of subsection (4), and subsection (6) of section 651.0246,
   93  Florida Statutes, are amended to read:
   94         651.0246 Expansions.—
   95         (2) A provider applying for expansion of a certificated
   96  facility must submit all of the following:
   97         (a) A feasibility study prepared by an independent
   98  consultant which includes an independent evaluation and
   99  examination opinion or compilation report for the first 5 years
  100  of operations, or a comparable opinion acceptable to the office,
  101  of the underlying assumptions used as a basis for the forecasts
  102  or projections in the study prepared in accordance with
  103  applicable professional standards adopted by the American
  104  Institute of Certified Public Accountants or standards for
  105  feasibility studies for continuing care retirement communities
  106  adopted by the Actuarial Standards Board certified public
  107  accountant. The feasibility study must include at least the
  108  following information:
  109         1. A description of the facility and proposed expansion,
  110  including the location, the size, the anticipated completion
  111  date, and the proposed construction program.
  112         2. An identification and evaluation of the primary and, if
  113  applicable, secondary market areas of the facility and the
  114  projected unit sales per month.
  115         3. Projected revenues, including anticipated entrance fees;
  116  monthly service fees; nursing care revenues, if applicable; and
  117  all other sources of revenue.
  118         4. Projected expenses, including for staffing requirements
  119  and salaries; the cost of property, plant, and equipment,
  120  including depreciation expense; interest expense; marketing
  121  expense; and other operating expenses.
  122         5. A projected balance sheet of the applicant.
  123         6. The expectations for the financial condition of the
  124  project, including the projected cash flow and an estimate of
  125  the funds anticipated to be necessary to cover startup losses.
  126         7. The inflation factor, if any, assumed in the study for
  127  the proposed expansion and how and where it is applied.
  128         8. Project costs; the total amount of debt financing
  129  required; marketing projections; resident rates, fees, and
  130  charges; the competition; resident contract provisions; and
  131  other factors that affect the feasibility of the facility.
  132         9. Appropriate population projections, including morbidity
  133  and mortality assumptions.
  134         10. The name of the person who prepared the feasibility
  135  study and his or her experience in preparing similar studies or
  136  otherwise consulting in the field of continuing care.
  137         11. Financial forecasts or projections prepared in
  138  accordance with standards adopted by the American Institute of
  139  Certified Public Accountants or in accordance with standards for
  140  feasibility studies for continuing care retirement communities
  141  adopted by the Actuarial Standards Board.
  142         12. An independent evaluation and examination opinion for
  143  the first 5 years of operations, or a comparable opinion
  144  acceptable to the office, by the consultant who prepared the
  145  study, of the underlying assumptions used as a basis for the
  146  forecasts or projections in the study and that the assumptions
  147  are reasonable and proper and the project as proposed is
  148  feasible.
  149         13. Any other information that the provider deems relevant
  150  and appropriate to provide to enable the office to make a more
  151  informed determination.
  152  
  153  If any material change occurs in the facts set forth in an
  154  application filed with the office pursuant to this section, an
  155  amendment setting forth such change must be filed with the
  156  office within 10 business days after the applicant becomes aware
  157  of such change, and a copy of the amendment must be sent by
  158  registered mail to the principal office of the facility and to
  159  the principal office of the controlling company.
  160         (4) The provider is entitled to secure release of the
  161  moneys held in escrow within 7 days after receipt by the office
  162  of an affidavit from the provider, along with appropriate copies
  163  to verify, and notification to the escrow agent by certified
  164  mail that the following conditions have been satisfied:
  165         (b) Payment in full has been received for at least 50
  166  percent of the total units of a phase or of the total of the
  167  combined phases constructed; or at least 75 percent of the
  168  proposed units for which an entrance fee is charged for a phase
  169  or a total of the combined phases are reserved and the provider
  170  submits an attestation to the office to use the entrance fees
  171  collected and held in escrow for the sole purpose of paying
  172  secured indebtedness as specified in the feasibility study
  173  submitted to the office pursuant to paragraph (2)(a). If the
  174  expansion is to be completed in multiple phases, the 75 percent
  175  reservation requirement applies separately to each phase of the
  176  expansion. If a provider offering continuing care at-home is
  177  applying for a release of escrowed entrance fees, the same
  178  minimum requirement must be met for the continuing care and
  179  continuing care at-home contracts independently of each other.
  180  
  181  Notwithstanding chapter 120, only the provider, the escrow
  182  agent, and the office have a substantial interest in any office
  183  decision regarding release of escrow funds in any proceedings
  184  under chapter 120 or this chapter.
  185         (6) Within 30 45 days after the date on which an
  186  application is deemed complete as provided in paragraph (5)(b),
  187  the office shall complete its review and, based upon its review,
  188  approve an expansion by the applicant and issue a determination
  189  that the application meets all requirements of law, that the
  190  feasibility study was based on sufficient data and reasonable
  191  assumptions, and that the applicant will be able to provide
  192  continuing care or continuing care at-home as proposed and meet
  193  all financial and contractual obligations related to its
  194  operations, including the financial requirements of this
  195  chapter. If the application is denied, the office must notify
  196  the applicant in writing, citing the specific failures to meet
  197  the requirements of this chapter. The denial entitles the
  198  applicant to a hearing pursuant to chapter 120.
  199         Section 3. Paragraph (b) of subsection (2) of section
  200  651.026, Florida Statutes, is amended to read:
  201         651.026 Annual reports.—
  202         (2) The annual report shall be in such form as the
  203  commission prescribes and shall contain at least the following:
  204         (b) A financial report audited by an independent certified
  205  public accountant which must contain, for two or more periods if
  206  the facility has been in existence that long, all of the
  207  following:
  208         1. An accountant’s opinion and, in accordance with
  209  generally accepted accounting principles:
  210         a. A balance sheet;
  211         b. A statement of income and expenses;
  212         c. A statement of equity or fund balances; and
  213         d. A statement of changes in cash flows.
  214         2. Notes to the financial report considered customary or
  215  necessary for full disclosure or adequate understanding of the
  216  financial report, financial condition, and operation.
  217         3.If the provider’s financial statements are consolidated
  218  or combined in accordance with generally accepted accounting
  219  principles with the financial statements of additional entities
  220  owned or controlled by the provider, the financial report must
  221  provide as supplemental information the financial statements of
  222  the provider with the items in subparagraph 1. for the
  223  individual facility shown separately and its consolidated or
  224  combined entities comprising the financial report.
  225         4.If the facility is a member of an obligated group, the
  226  facility may use the obligated group’s audited financial
  227  statements if they contain the items in subparagraph 1. for the
  228  individual facility shown separately from other members of the
  229  obligated group.
  230         Section 4. Paragraph (a) of subsection (1) and paragraph
  231  (c) of subsection (3) of section 651.033, Florida Statutes, are
  232  amended, and paragraph (a) of subsection (3) of that section is
  233  republished, to read:
  234         651.033 Escrow accounts.—
  235         (1) When funds are required to be deposited in an escrow
  236  account pursuant to s. 651.0215, s. 651.022, s. 651.023, s.
  237  651.0246, s. 651.035, or s. 651.055:
  238         (a) The escrow account must be established in a Florida
  239  bank, Florida savings and loan association, Florida trust
  240  company, or a national bank that is chartered and supervised by
  241  the Office of the Comptroller of the Currency within the United
  242  States Department of the Treasury and that has a branch in this
  243  state, which is acceptable to the office, or such funds must be
  244  deposited with the department and be kept and maintained in an
  245  account separate and apart from the provider’s business
  246  accounts.
  247         (3) When entrance fees are required to be deposited in an
  248  escrow account pursuant to s. 651.0215, s. 651.022, s. 651.023,
  249  s. 651.0246, or s. 651.055:
  250         (a) The provider shall deliver to the resident a written
  251  receipt. The receipt must show the payor’s name and address, the
  252  date, the price of the care contract, and the amount of money
  253  paid. A copy of each receipt, together with the funds, must be
  254  deposited with the escrow agent or as provided in paragraph (c).
  255  The escrow agent must release such funds to the provider 7 days
  256  after the date of receipt of the funds by the escrow agent if
  257  the provider, operating under a certificate of authority issued
  258  by the office, has met the requirements of s. 651.0215(8), s.
  259  651.023(6), or s. 651.0246. However, if the resident rescinds
  260  the contract within the 7-day period, the escrow agent must
  261  release the escrowed fees to the resident.
  262         (c) As an alternative to paragraph (a) At the request of an
  263  individual resident of a facility, the provider may hold the
  264  check for the 7-day period and may not deposit it during this
  265  time period. If the resident rescinds the contract within the 7
  266  day period, the check must be immediately returned to the
  267  resident. Upon the expiration of the 7 days, the provider shall
  268  deposit the check.
  269         Section 5. Present subsection (7) of section 651.034,
  270  Florida Statutes, is redesignated as subsection (8), a new
  271  subsection (7) is added to that section, and subsection (6) of
  272  that section is amended, to read:
  273         651.034 Financial and operating requirements for
  274  providers.—
  275         (6) The office may exempt a provider from subsection (1) or
  276  subsection (2) until stabilized occupancy is reached or until
  277  the time projected to achieve stabilized occupancy as reported
  278  in the last feasibility study required by the office as part of
  279  an application filing under s. 651.0215, s. 651.023, s. 651.024,
  280  or s. 651.0246 has elapsed, but for no longer than 5 years after
  281  the end of the provider’s fiscal year in which the certificate
  282  of occupancy was issued date of issuance of the certificate of
  283  occupancy.
  284         (7) Upon written request of a provider, the office may
  285  temporarily suspend all or a portion of financial and operating
  286  requirements under this chapter due to an extraordinary event
  287  rendering the provider incapable of continuing normal operations
  288  such as, but not limited to, a pandemic, a fire, or a federal or
  289  state executive order declaring a natural disaster which forces
  290  the provider to evacuate, curtail operations, restrict
  291  admissions, or suspend marketing for lifesafety reasons or
  292  repairs related to the event. Such temporary suspension may be
  293  granted by the office if the provider maintains compliance with
  294  ss. 651.026, 651.0261, and 651.035 and the provider is not
  295  insolvent or impaired. The provider shall comply with required
  296  reporting requested by the office, including the estimated time
  297  for completing repairs or remediating problems related to
  298  restrictions on admissions or marketing. When determining
  299  whether to grant a suspension of specific regulatory
  300  requirements, the office shall consider any formal action or
  301  amendments approved by a lender or trustee to the provider’s
  302  lending agreements or bond covenants as a result of the event.
  303         Section 6. Paragraph (b) of subsection (1), paragraph (a)
  304  of subsection (2), subsection (5), and paragraph (a) of
  305  subsection (7) of section 651.035, Florida Statutes, are amended
  306  to read:
  307         651.035 Minimum liquid reserve requirements.—
  308         (1) A provider shall maintain in escrow a minimum liquid
  309  reserve consisting of the following reserves, as applicable:
  310         (b) A provider that has outstanding indebtedness that
  311  requires a debt service reserve to be held in escrow pursuant to
  312  a trust indenture or mortgage lien on the facility and for which
  313  the debt service reserve may only be used to pay principal and
  314  interest payments on the debt that the debtor is obligated to
  315  pay, and which may include property taxes and insurance, may
  316  include such debt service reserve in computing the minimum
  317  liquid reserve needed to satisfy this subsection if the provider
  318  furnishes to the office a copy of the agreement under which such
  319  debt service reserve is held, together with a statement of the
  320  amount being held in escrow for the debt service reserve,
  321  certified by the lender or trustee and the provider to be
  322  correct. The trustee shall provide the office with any
  323  information concerning the debt service reserve account upon
  324  request of the provider or the office. In addition, the trust
  325  indenture, loan agreement, or escrow agreement must provide that
  326  the provider, trustee, lender, escrow agent, or another person
  327  designated to act in their place shall notify the office in
  328  writing at least 10 days before the withdrawal of any portion of
  329  the debt service reserve funds required to be held in escrow as
  330  described in this paragraph. The notice must include an
  331  affidavit sworn to by the provider, the trustee, or a person
  332  designated to act in their place which includes the amount of
  333  the scheduled debt service payment, the payment due date, the
  334  amount of the withdrawal, the accounts from which the withdrawal
  335  will be made, and a plan with a schedule for replenishing the
  336  withdrawn funds. If the plan is revised by a consultant that is
  337  retained as prescribed in the provider’s financing documents,
  338  the revised plan must be submitted to the office within 10 days
  339  after approval by the lender or trustee. Any such separate debt
  340  service reserves are not subject to the transfer provisions set
  341  forth in subsection (8).
  342         (2)(a) In facilities where not all residents are under
  343  continuing care or continuing care at-home contracts, the
  344  reserve requirements of subsection (1) shall be computed only
  345  with respect to the proportional share of operating expenses
  346  that are applicable to residents. For purposes of this
  347  calculation, the proportional share shall be based upon the
  348  ratio of residents under continuing care or continuing care at
  349  home contracts to the total of all residents, including those
  350  residents who do not hold such contracts.
  351         (5) A provider may satisfy the minimum liquid reserve
  352  requirements of this section by acquiring from a financial
  353  institution, as specified in paragraph (b), a clean,
  354  unconditional irrevocable letter of credit equal to the
  355  requirements of this section, less the amount of escrowed
  356  operating cash required by paragraph (d).
  357         (a) The letter of credit must be issued by a financial
  358  institution participating in the State of Florida Treasury
  359  Certificate of Deposit Program or a Florida bank, a Florida
  360  savings and loan association, a Florida trust company, or a
  361  national bank that is chartered and supervised by the Office of
  362  the Comptroller of the Currency within the United States
  363  Department of the Treasury, and must be approved by the office
  364  before issuance and before any renewal or modification thereof.
  365  At a minimum, the letter of credit must provide for:
  366         1. Ninety days’ prior written notice to both the provider
  367  and the office of the financial institution’s determination not
  368  to renew or extend the term of the letter of credit.
  369         2. Unless otherwise arranged by the provider to the
  370  satisfaction of the office, deposit by the financial institution
  371  of letter of credit funds in an account designated by the office
  372  no later than 30 days before the expiration of the letter of
  373  credit.
  374         3. Deposit by the financial institution of letter of credit
  375  funds in an account designated by the office within 4 business
  376  days following written instructions from the office that, in the
  377  sole judgment of the office, funding of the minimum liquid
  378  reserve is required.
  379         (b) The terms of the letter of credit must be approved by
  380  the office and the long-term debt of the financial institution
  381  providing such letter of credit must be rated in one of their
  382  top three long-term debt rating categories by either Moody’s
  383  Investors Service, Standard & Poor’s Corporation, or a
  384  recognized securities rating agency acceptable to the office.
  385         (c) The letter of credit must name the office as
  386  beneficiary.
  387         (d) Notwithstanding any other provision of this section, a
  388  provider using a letter of credit pursuant to this subsection
  389  shall, at all times, have and maintain in escrow an operating
  390  cash reserve equal to 2 months’ operating expenses as determined
  391  pursuant to s. 651.026.
  392         (e) If the issuing financial institution no longer
  393  participates in the State of Florida Treasury Certificate of
  394  Deposit Program, such financial institution shall deposit as
  395  collateral with the department eligible securities, as
  396  prescribed by s. 625.52, having a market value equal to or
  397  greater than 100 percent of the stated amount of the letter of
  398  credit.
  399         (7)(a) A provider may withdraw funds held in escrow without
  400  the approval of the office if:
  401         1. The amount held in escrow exceeds the requirements of
  402  this section and if the withdrawal will not affect compliance
  403  with this section; or
  404         2.The withdrawal is from a debt service reserve required
  405  to be held in escrow pursuant to a trust indenture or mortgage
  406  lien on the facility as described in paragraph (1)(b) and will
  407  be used to pay delinquent principal and interest payments the
  408  debtor is obligated to pay on the facility.
  409         Section 7. Subsection (2) of section 651.055, Florida
  410  Statutes, is amended to read:
  411         651.055 Continuing care contracts; right to rescind.—
  412         (2) A resident has the right to rescind a continuing care
  413  contract and receive a full refund of any funds paid, without
  414  penalty or forfeiture, within 7 days after executing the
  415  contract. However, if an individual signs a reservation
  416  agreement pursuant to s. 651.023(4) and fails to cancel such
  417  agreement within 30 days after executing the agreement and
  418  subsequently signs a contract and rescinds the contract within 7
  419  days, the forfeiture penalty authorized under s. 651.023(4)(b)
  420  may be deducted from the refund unless the individual can
  421  demonstrate extenuating circumstances, such as, but not limited
  422  to, the death or illness of a spouse or partner, a diagnosis of
  423  a chronic or terminal illness of the individual, or a change in
  424  financial or asset position which warrants cancellation of the
  425  contract. A resident may not be required to move into the
  426  facility designated in the contract before the expiration of the
  427  7-day period. During the 7-day period, the resident’s funds must
  428  be held in an escrow account or the provider may hold the check
  429  until the 7-day period expires unless otherwise requested by the
  430  resident pursuant to s. 651.033(3)(c).
  431         Section 8. Paragraphs (a) and (d) of subsection (2) of
  432  section 651.081, Florida Statutes, are amended to read:
  433         651.081 Residents’ council.—
  434         (2)(a) Each facility shall establish a residents’ council
  435  created for the purpose of representing residents on matters set
  436  forth in s. 651.085. A residents’ council has authority to
  437  establish and maintain its own governance documents, such as
  438  bylaws or operating agreements, policies, and operating
  439  procedures, which may include establishment of committees. A
  440  person is eligible to participate in residents’ council matters,
  441  including elections, if the person meets the definition of a
  442  resident under s. 651.011. The residents’ council shall be
  443  established through an election in which the residents, as
  444  defined in s. 651.011, vote by ballot, physically or by proxy.
  445  If the election is to be held during a meeting, a notice of the
  446  organizational meeting must be provided to all residents of the
  447  community at least 10 business days before the meeting. Notice
  448  may be given through internal mailboxes, communitywide
  449  newsletters, bulletin boards, in-house television stations, and
  450  other similar means of communication. An election creating a
  451  residents’ council is valid if at least 40 percent of the total
  452  resident population participates in the election and a majority
  453  of the participants vote affirmatively for the council. The
  454  initial residents’ council created under this section is valid
  455  for at least 12 months. A residents’ organization formalized by
  456  bylaws and elected officials must be recognized as the
  457  residents’ council under this section and s. 651.085. Within 30
  458  days after the election of a newly elected president or chair of
  459  the residents’ council, the provider shall give the president or
  460  chair a copy of this chapter and rules adopted thereunder, or
  461  direct him or her to the appropriate public website to obtain
  462  this information. Only one residents’ council may represent
  463  residents before the governing body of the provider as described
  464  in s. 651.085(2).
  465         (d) A residents’ council shall adopt its own bylaws and
  466  governance documents subject to the vote and approval of the
  467  residents. The residents’ council shall provide for open
  468  meetings when appropriate. The residents’ council governing
  469  documents shall define the manner in which residents may submit
  470  an issue to the council and define a reasonable timeframe in
  471  which the residents’ council shall respond to a resident
  472  submission or inquiry. A residents’ council may include term
  473  limits in its governing documents to ensure consistent
  474  integration of new leaders. If a licensed facility files for
  475  bankruptcy under chapter 11 of the United States Bankruptcy
  476  Code, 11 U.S.C. chapter 11, the facility, in its required filing
  477  of the 20 largest unsecured creditors with the United States
  478  Trustee, shall include the name and contact information of a
  479  designated resident selected by the residents’ council, and a
  480  statement explaining that the designated resident was chosen by
  481  the residents’ council to serve as a representative of the
  482  residents’ interest on the creditors’ committee, if appropriate.
  483         Section 9. Paragraph (f) of subsection (1) of section
  484  651.083, Florida Statutes, is amended to read:
  485         651.083 Residents’ rights.—
  486         (1) No resident of any facility shall be deprived of any
  487  civil or legal rights, benefits, or privileges guaranteed by
  488  law, by the State Constitution, or by the United States
  489  Constitution solely by reason of status as a resident of a
  490  facility. Each resident of a facility has the right to:
  491         (f) Present grievances and recommend changes in policies,
  492  procedures, and services to the staff of the facility, governing
  493  officials, or any other person without restraint, interference,
  494  coercion, discrimination, or reprisal. This right includes
  495  access to ombudsman volunteers or staff and advocates and the
  496  right to be a member of, and active in, and to associate with,
  497  advocacy or special interest groups or associations.
  498         Section 10. Subsections (2), (3), and (5) of section
  499  651.085, Florida Statutes, are amended to read:
  500         651.085 Quarterly meetings between residents and the
  501  governing body of the provider; resident representation before
  502  the governing body of the provider.—
  503         (2) A residents’ council formed pursuant to s. 651.081,
  504  members of which are elected by the residents, shall nominate
  505  and elect designate a designated resident representative to
  506  represent them on matters specified in subsection (3) before the
  507  governing body of the provider. The initial designated resident
  508  representative elected under this section shall be elected to
  509  serve at least 12 months. The designated resident representative
  510  need not be a current member of the residents’ council; however,
  511  such individual must meet the definition of a resident under s.
  512  651.011.
  513         (3) The designated resident representative shall be
  514  notified by a representative of the provider at least 14 days in
  515  advance of any meeting of the full governing body at which the
  516  annual budget and proposed changes or increases in resident fees
  517  or services are on the agenda or will be discussed. The
  518  designated resident representative shall be invited to attend
  519  and participate in that portion of the meeting designated for
  520  the discussion of such changes. A designated resident
  521  representative shall perform his or her duties in good faith.
  522  For a provider that owns or operates more than one facility in
  523  this state, each facility must have its own designated resident
  524  representative.
  525         (5) The board of directors or governing board of a licensed
  526  provider may at its sole discretion allow a resident of the
  527  facility to be a voting member of the board or governing body of
  528  the facility. The board of directors or governing board of a
  529  licensed provider may establish specific criteria for the
  530  nomination, selection, and term of a resident as a member of the
  531  board or governing body. If the board or governing body of a
  532  licensed provider operates more than one licensed facility,
  533  regardless of whether the facility is in-state or out-of-state,
  534  the board or governing body may select at its sole discretion
  535  one resident from among its facilities to serve on the board of
  536  directors or governing body on a rotating basis. A resident who
  537  serves as a member of a board or governing body of the facility
  538  shall perform his or her duties in a fiduciary manner, including
  539  the duty of confidentiality, duty of care, duty of loyalty, and
  540  duty of obedience, as required of any individual serving on the
  541  board or governing body.
  542         Section 11. Present paragraphs (e) through (k) and (l) of
  543  subsection (2) of section 651.091, Florida Statutes, are
  544  redesignated as paragraphs (f) through (l) and (n),
  545  respectively, new paragraph (e) and paragraph (m) are added to
  546  that subsection, and paragraph (m) is added to subsection (3) of
  547  that section, to read:
  548         651.091 Availability, distribution, and posting of reports
  549  and records; requirement of full disclosure.—
  550         (2) Every continuing care facility shall:
  551         (e) Provide a copy of the final examination report and
  552  corrective action plan, if one is required by the office, to the
  553  executive officer of the governing body of the provider and the
  554  president or chair of the residents’ council within 60 days
  555  after issuance of the report.
  556         (m)Notify the president or chair of the residents’ council
  557  in writing of a change in management within 10 business days
  558  after the change.
  559         (3) Before entering into a contract to furnish continuing
  560  care or continuing care at-home, the provider undertaking to
  561  furnish the care, or the agent of the provider, shall make full
  562  disclosure, obtain written acknowledgment of receipt, and
  563  provide copies of the disclosure documents to the prospective
  564  resident or his or her legal representative, of the following
  565  information:
  566         (m)Disclosure of whether the provider has one or more
  567  residents serving on its board or governing body and whether
  568  that individual has a vote or is serving in a nonvoting, ex
  569  officio capacity.
  570         Section 12. Subsections (1) and (6) of section 651.105,
  571  Florida Statutes, are amended to read:
  572         651.105 Examination.—
  573         (1)(a) The office may at any time, and shall at least once
  574  every 3 years, examine the business of any applicant for a
  575  certificate of authority and any provider engaged in the
  576  execution of care contracts or engaged in the performance of
  577  obligations under such contracts, in the same manner as is
  578  provided for the examination of insurance companies pursuant to
  579  ss. 624.316 and 624.318. For a provider as deemed accredited
  580  under s. 651.028, such examinations must take place at least
  581  once every 5 years. The examination must cover the preceding 3
  582  or 5 fiscal years of the provider, whichever is applicable, and
  583  must be commenced within 12 months after the end of the most
  584  recent fiscal year covered by the examination. The examination
  585  may include events subsequent to the end of the most recent
  586  fiscal year and the events of any prior period which affect the
  587  present financial condition of the provider. As part of the
  588  examination, the office shall conduct an interview in person,
  589  telephonically, or through electronic communication with the
  590  current president or chair of the residents’ council, or another
  591  designated officer of the council if the president or chair is
  592  not available.
  593         (b) Such examinations must be made by a representative or
  594  examiner designated by the office whose compensation will be
  595  fixed by the office pursuant to s. 624.320. Routine examinations
  596  may be made by having the necessary documents submitted to the
  597  office; and, for this purpose, financial documents and records
  598  conforming to commonly accepted accounting principles and
  599  practices, as required under s. 651.026, are deemed adequate.
  600  The final written report of each examination must be filed with
  601  the office and, when so filed, constitutes a public record. Any
  602  provider being examined shall, upon request, give reasonable and
  603  timely access to all of its records. The representative or
  604  examiner designated by the office may at any time examine the
  605  records and affairs and inspect the physical property of any
  606  provider, whether in connection with a formal examination or
  607  not.
  608         (6) A representative of the provider must give a copy of
  609  the final examination report and corrective action plan, if one
  610  is required by the office, to the executive officer of the
  611  governing body of the provider within 60 days after issuance of
  612  the report.
  613         Section 13. Subsection (7) of section 651.118, Florida
  614  Statutes, is amended to read:
  615         651.118 Agency for Health Care Administration; certificates
  616  of need; sheltered beds; community beds.—
  617         (7) Notwithstanding subsection (2), at the discretion of
  618  the provider, sheltered nursing home beds may be used for
  619  persons who are not residents of the continuing care facility
  620  and who are not parties to a continuing care contract for up to
  621  5 years after the date of issuance of the initial nursing home
  622  license. A provider whose 5-year period has expired or is
  623  expiring may request an extension from the Agency for Health
  624  Care Administration, not to exceed 30 percent of the total
  625  sheltered nursing home beds or 30 sheltered beds, whichever is
  626  greater, if the utilization by residents of the nursing home
  627  facility in the sheltered beds will not generate sufficient
  628  income to cover nursing home facility expenses, as evidenced by
  629  one of the following:
  630         (a) The nursing home facility has a net loss for the most
  631  recent fiscal year as determined under generally accepted
  632  accounting principles, excluding the effects of extraordinary or
  633  unusual items, as demonstrated in the most recently audited
  634  financial statement.
  635         (b) The nursing home facility would have had a pro forma
  636  loss for the most recent fiscal year, excluding the effects of
  637  extraordinary or unusual items, if revenues were reduced by the
  638  amount of revenues from persons in sheltered beds who were not
  639  residents, as reported by a certified public accountant.
  640  
  641  The Agency for Health Care Administration may grant an extension
  642  to the provider based on the evidence required in this
  643  subsection. The Agency for Health Care Administration may
  644  request a continuing care facility to use up to 25 percent of
  645  the patient days generated by new admissions of nonresidents
  646  during the extension period to serve Medicaid recipients for
  647  those beds authorized for extended use if there is a
  648  demonstrated need in the respective service area and if funds
  649  are available. A provider who obtains an extension is prohibited
  650  from applying for additional sheltered beds under subsection
  651  (2), unless additional residential units are built or the
  652  provider can demonstrate need by continuing care facility
  653  residents to the Agency for Health Care Administration. The 5
  654  year limit does not apply to sheltered beds designated for post
  655  acute care as part of a contractual agreement with a health care
  656  delivery system with at least one facility licensed under
  657  chapter 395 or up to five sheltered beds designated for
  658  inpatient hospice care as part of a contractual arrangement with
  659  a hospice licensed under part IV of chapter 400. A continuing
  660  care facility that uses such beds after the 5-year period shall
  661  report such use to the Agency for Health Care Administration.
  662  For purposes of this subsection, “resident” means a person who,
  663  upon admission to the continuing care facility, initially
  664  resides in a part of the continuing care facility not licensed
  665  under part II of chapter 400, or who contracts for continuing
  666  care at-home.
  667         Section 14. Section 651.012, Florida Statutes, is amended
  668  to read:
  669         651.012 Exempted facility; written disclosure of
  670  exemption.—Any facility exempted under ss. 632.637(1)(e) and
  671  651.011(24) ss. 632.637(1)(e) and 651.011(23) must provide
  672  written disclosure of such exemption to each person admitted to
  673  the facility. This disclosure must be written using language
  674  likely to be understood by the person and must briefly explain
  675  the exemption.
  676         Section 15. Subsection (1) of section 651.0261, Florida
  677  Statutes, is amended to read:
  678         651.0261 Quarterly and monthly statements.—
  679         (1) Within 45 days after the end of each fiscal quarter,
  680  each provider shall file a quarterly unaudited financial
  681  statement of the provider or of the facility in the form
  682  prescribed by commission rule and days cash on hand, occupancy,
  683  debt service coverage ratio, and a detailed listing of the
  684  assets maintained in the liquid reserve as required under s.
  685  651.035. The last quarterly statement for a fiscal year is not
  686  required if a provider does not have pending a regulatory action
  687  level event, impairment, or a corrective action plan. If a
  688  provider falls below two or more of the thresholds set forth in
  689  s. 651.011(26) s. 651.011(25) at the end of any fiscal quarter,
  690  the provider shall submit to the office, at the same time as the
  691  quarterly statement, an explanation of the circumstances and a
  692  description of the actions it will take to meet the
  693  requirements.
  694         Section 16. This act shall take effect July 1, 2023.