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AB-2033 Continuing care contracts: repayable contracts.(2017-2018)

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Date Published: 04/09/2018 09:00 PM
AB2033:v97#DOCUMENT

Amended  IN  Assembly  April 09, 2018
Amended  IN  Assembly  March 21, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2033


Introduced by Assembly Member Choi

February 06, 2018


An act to amend Section 1771 of the Health and Safety Code, relating to continuing retirement communities.


LEGISLATIVE COUNSEL'S DIGEST


AB 2033, as amended, Choi. Continuing care contracts: repayable contracts.
Existing law establishes the State Department of Social Services and sets forth its powers and duties, including, but not limited to, the certification and regulation of continuing care retirement communities, as defined. Existing law requires a continuing care retirement community to possess a certificate of authority from the department before it can enter into a continuing care contract, as defined. Existing law regulates different types of continuing care contracts, including, among others, a repayable contract. A repayable contract is a continuing care contract that includes a promise to repay all or a portion of an entrance fee that is conditioned upon reoccupancy or resale of the unit previously occupied by the resident.
This bill would, for contracts entered into or amended on or after January 1, 2019, revise the definition of a “repayable contract” to also include a contract that includes a promise to repay all or a portion of an entrance fee on a sequential basis from an entrance fee repayment pool that is funded by the resale of all of the facility units, units in the pool at the facility, as they become available, would set forth conditions for repayment of these amounts, and would declare that these contracts are subject to the same legal requirements as other repayable contracts.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1771 of the Health and Safety Code is amended to read:

1771.
 Unless the context otherwise requires, the definitions in this section govern the interpretation of this chapter.
(a) (1) “Affiliate” means any person, corporation, limited liability company, business trust, trust, partnership, unincorporated association, or other legal entity that directly or indirectly controls, is controlled by, or is under common control with, a provider or applicant.
(2) “Affinity group” means a grouping of entities sharing a common interest, philosophy, or connection (e.g., military officers, religion).
(3) “Annual report” means the report each provider is required to file annually with the department, as described in Section 1790.
(4) “Applicant” means any entity, or combination of entities, that submits and has pending an application to the department for a permit to accept deposits and a certificate of authority.
(5) “Assisted living services” includes, but is not limited to, assistance with personal activities of daily living, including dressing, feeding, toileting, bathing, grooming, mobility, and associated tasks, to help provide for and maintain physical and psychosocial comfort.
(6) “Assisted living unit” means the living area or unit within a continuing care retirement community that is specifically designed to provide ongoing assisted living services.
(7) “Audited financial statement” means financial statements prepared in accordance with generally accepted accounting principles, including the opinion of an independent certified public accountant, and notes to the financial statements considered customary or necessary to provide full disclosure and complete information regarding the provider’s financial statements, financial condition, and operation.
(b) (reserved)
(c) (1) “Cancel” means to destroy the force and effect of an agreement or continuing care contract.
(2) “Cancellation period” means the 90-day period, beginning when the resident physically moves into the continuing care retirement community, during which the resident may cancel the continuing care contract, as provided in Section 1788.2.
(3) “Care” means nursing, medical, or other health-related services, protection or supervision, assistance with the personal activities of daily living, or any combination of those services.
(4) “Cash equivalent” means certificates of deposit and United States treasury securities with a maturity of five years or less.
(5) “Certificate” or “certificate of authority” means the certificate issued by the department, properly executed and bearing the State Seal, authorizing a specified provider to enter into one or more continuing care contracts at a single specified continuing care retirement community.
(6) “Condition” means a restriction, specific action, or other requirement imposed by the department for the initial or continuing validity of a permit to accept deposits, a provisional certificate of authority, or a certificate of authority. A condition may limit the circumstances under which the provider may enter into any new deposit agreement or contract, or may be imposed as a condition precedent to the issuance of a permit to accept deposits, a provisional certificate of authority, or a certificate of authority.
(7) “Consideration” means some right, interest, profit, or benefit paid, transferred, promised, or provided by one party to another as an inducement to contract. Consideration includes some forbearance, detriment, loss, or responsibility, that is given, suffered, or undertaken by a party as an inducement to another party to contract.
(8) “Continuing care contract” means a contract that includes a continuing care promise made, in exchange for an entrance fee, the payment of periodic charges, or both types of payments. A continuing care contract may consist of one agreement or a series of agreements and other writings incorporated by reference.
(9) “Continuing care promise” means a promise, expressed or implied, by a provider to provide one or more elements of care to an elderly resident for the duration of his or her life or for a term in excess of one year. Any such promise or representation, whether part of a continuing care contract, other agreement, or series of agreements, or contained in any advertisement, brochure, or other material, either written or oral, is a continuing care promise.
(10) “Continuing care retirement community” means a facility located within the State of California where services promised in a continuing care contract are provided. A distinct phase of development approved by the department may be considered to be the continuing care retirement community when a project is being developed in successive distinct phases over a period of time. When the services are provided in residents’ own homes, the homes into which the provider takes those services are considered part of the continuing care retirement community.
(11) “Control” means directing or causing the direction of the financial management or the policies of another entity, including an operator of a continuing care retirement community, whether by means of the controlling entity’s ownership interest, contract, or any other involvement. A parent entity or sole member of an entity controls a subsidiary entity provider for a continuing care retirement community if its officers, directors, or agents directly participate in the management of the subsidiary entity or in the initiation or approval of policies that affect the continuing care retirement community’s operations, including, but not limited to, approving budgets or the administrator for a continuing care retirement community.
(d) (1) “Department” means the State Department of Social Services.
(2) “Deposit” means any transfer of consideration, including a promise to transfer money or property, made by a depositor to any entity that promises or proposes to promise to provide continuing care, but is not authorized to enter into a continuing care contract with the potential depositor.
(3) “Deposit agreement” means any agreement made between any entity accepting a deposit and a depositor. Deposit agreements for deposits received by an applicant prior to the department’s release of funds from the deposit escrow account shall be subject to the requirements described in Section 1780.4.
(4) “Depository” means a bank or institution that is a member of the Federal Deposit Insurance Corporation or a comparable deposit insurance program.
(5) “Depositor” means any prospective resident who pays a deposit. Where any portion of the consideration transferred to an applicant as a deposit or to a provider as consideration for a continuing care contract is transferred by a person other than the prospective resident or a resident, that third-party transferor shall have the same cancellation or refund rights as the prospective resident or resident for whose benefit the consideration was transferred.
(6) “Director” means the Director of Social Services.
(e) (1) “Elderly” means an individual who is 60 years of age or older.
(2) “Entity” means an individual, partnership, corporation, limited liability company, and any other form for doing business. Entity includes a person, sole proprietorship, estate, trust, association, and joint venture.
(3) “Entrance fee” means the sum of any initial, amortized, or deferred transfer of consideration made or promised to be made by, or on behalf of, a person entering into a continuing care contract for the purpose of ensuring care or related services pursuant to that continuing care contract or as full or partial payment for the promise to provide care for the term of the continuing care contract. Entrance fee includes the purchase price of a condominium, cooperative, or other interest sold in connection with a promise of continuing care. An initial, amortized, or deferred transfer of consideration that is greater in value than 12 times the monthly care fee shall be presumed to be an entrance fee.
(4) “Equity” means the value of real property in excess of the aggregate amount of all liabilities secured by the property.
(5) “Equity interest” means an interest held by a resident in a continuing care retirement community that consists of either an ownership interest in any part of the continuing care retirement community property or a transferable membership that entitles the holder to reside at the continuing care retirement community.
(6) “Equity project” means a continuing care retirement community where residents receive an equity interest in the continuing care retirement community property.
(7) “Equity securities” shall refer generally to large and midcapitalization corporate stocks that are publicly traded and readily liquidated for cash, and shall include shares in mutual funds that hold portfolios consisting predominantly of these stocks and other qualifying assets, as defined by Section 1792.2. Equity securities shall also include other similar securities that are specifically approved by the department.
(8) “Escrow agent” means a bank or institution, including, but not limited to, a title insurance company, approved by the department to hold and render accountings for deposits of cash or cash equivalents.
(f) “Facility” means any place or accommodation where a provider provides or will provide a resident with care or related services, whether or not the place or accommodation is constructed, owned, leased, rented, or otherwise contracted for by the provider.
(g) (reserved)
(h) (reserved)
(i) (1) “Inactive certificate of authority” means a certificate that has been terminated under Section 1793.8.
(2) “Investment securities” means any of the following:
(A) Direct obligations of the United States, including obligations issued or held in book-entry form on the books of the United States Department of the Treasury or obligations the timely payment of the principal of, and the interest on, which are fully guaranteed by the United States.
(B) Obligations, debentures, notes, or other evidences of indebtedness issued or guaranteed by any of the following:
(i) The Federal Home Loan Bank System.
(ii) The Export-Import Bank of the United States.
(iii) The Federal Financing Bank.
(iv) The Government National Mortgage Association.
(v) The Farmers Home Administration.
(vi) The Federal Home Loan Mortgage Corporation of the Federal Housing Administration.
(vii) Any agency, department, or other instrumentality of the United States if the obligations are rated in one of the two highest rating categories of each rating agency rating those obligations.
(C) Bonds of the State of California or of any county, city and county, or city in this state, if rated in one of the two highest rating categories of each rating agency rating those bonds.
(D) Commercial paper of finance companies and banking institutions rated in one of the two highest categories of each rating agency rating those instruments.
(E) Repurchase agreements fully secured by collateral security described in subparagraph (A) or (B), as evidenced by an opinion of counsel, if the collateral is held by the provider or a third party during the term of the repurchase agreement, pursuant to the terms of the agreement, subject to liens or claims of third parties, and has a market value, which is determined at least every 14 days, at least equal to the amount so invested.
(F) Long-term investment agreements, which have maturity dates in excess of one year, with financial institutions, including, but not limited to, banks and insurance companies or their affiliates, if the financial institution’s paying ability for debt obligations or long-term claims or the paying ability of a related guarantor of the financial institution for these obligations or claims, is rated in one of the two highest rating categories of each rating agency rating those instruments, or if the short-term investment agreements are with the financial institution or the related guarantor of the financial institution, the long-term or short-term debt obligations, whichever is applicable, of which are rated in one of the two highest long-term or short-term rating categories, of each rating agency rating the bonds of the financial institution or the related guarantor, provided that if the rating falls below the two highest rating categories, the investment agreement shall allow the provider the option to replace the financial institution or the related guarantor of the financial institution or shall provide for the investment securities to be fully collateralized by investments described in subparagraph (A), and, provided further, if so collateralized, that the provider has a perfected first security lien on the collateral, as evidenced by an opinion of counsel and the collateral is held by the provider.
(G) Banker’s acceptances or certificates of deposit of, or time deposits in, any savings and loan association that meets any of the following criteria:
(i) The debt obligations of the savings and loan association, or in the case of a principal bank, of the bank holding company, are rated in one of the two highest rating categories of each rating agency rating those instruments.
(ii) The certificates of deposit or time deposits are fully insured by the Federal Deposit Insurance Corporation.
(iii) The certificates of deposit or time deposits are secured at all times, in the manner and to the extent provided by law, by collateral security described in subparagraph (A) or (B) with a market value, valued at least quarterly, of no less than the original amount of moneys so invested.
(H) Taxable money market government portfolios restricted to obligations issued or guaranteed as to payment of principal and interest by the full faith and credit of the United States.
(I) Obligations the interest on which is excluded from gross income for federal income tax purposes and money market mutual funds whose portfolios are restricted to these obligations, if the obligations or mutual funds are rated in one of the two highest rating categories by each rating agency rating those obligations.
(J) Bonds that are not issued by the United States or any federal agency, but that are listed on a national exchange and that are rated at least “A” by Moody’s Investors Service, or the equivalent rating by Standard and Poor’s Corporation or Fitch Investors Service.
(K) Bonds not listed on a national exchange that are traded on an over-the-counter basis, and that are rated at least “Aa” by Moody’s Investors Service or “AA” by Standard and Poor’s Corporation or Fitch Investors Service.
(j) (reserved)
(k) (reserved)
(l) “Life care contract” means a continuing care contract that includes a promise, expressed or implied, by a provider to provide or pay for routine services at all levels of care, including acute care and the services of physicians and surgeons, to the extent not covered by other public or private insurance benefits, to a resident for the duration of his or her life. Care shall be provided under a life care contract in a continuing care retirement community having a comprehensive continuum of care, including a skilled nursing facility, under the ownership and supervision of the provider on or adjacent to the premises. A change shall not be made in the monthly fee based on level of care. A life care contract shall also include provisions to subsidize residents who become financially unable to pay their monthly care fees.
(m) (1) “Monthly care fee” means the fee charged to a resident in a continuing care contract on a monthly or other periodic basis for current accommodations and services, including care, board, or lodging. Periodic entrance fee payments or other prepayments shall not be monthly care fees.
(2) “Monthly fee contract” means a continuing care contract that requires residents to pay monthly care fees.
(n) “Nonambulatory person” means a person who is unable to leave a building unassisted under emergency conditions in the manner described by Section 13131.
(o) (reserved)
(p) (1) “Per capita cost” means a continuing care retirement community’s operating expenses, excluding depreciation, divided by the average number of residents.
(2) “Periodic charges” means fees paid by a resident on a periodic basis.
(3) “Permanent closure” means the voluntary or involuntary termination or forfeiture, as specified in subdivisions (a), (b), (g), (h), and (i) of Section 1793.7, of a provider’s certificate of authority or license, or another action that results in the permanent relocation of residents. Permanent closure does not apply in the case of a natural disaster or other event out of the provider’s control.
(4) “Permit to accept deposits” means a written authorization by the department permitting an applicant to enter into deposit agreements regarding a single specified continuing care retirement community.
(5) “Prepaid contract” means a continuing care contract in which the monthly care fee, if any, may not be adjusted to cover the actual cost of care and services.
(6) “Preferred access” means that residents who have previously occupied a residential living unit have a right over other persons to any assisted living or skilled nursing beds that are available at the community.
(7) “Processing fee” means a payment to cover administrative costs of processing the application of a depositor or prospective resident.
(8) “Promise to provide one or more elements of care” means any expressed or implied representation that one or more elements of care will be provided or will be available, such as by preferred access.
(9) “Proposes” means a representation that an applicant or provider will or intends to make a future promise to provide care, including a promise that is subject to a condition, such as the construction of a continuing care retirement community or the acquisition of a certificate of authority.
(10) “Provider” means an entity that provides continuing care, makes a continuing care promise, or proposes to promise to provide continuing care. “Provider” also includes any entity that controls an entity that provides continuing care, makes a continuing care promise, or proposes to promise to provide continuing care. The department shall determine whether an entity controls another entity for purposes of this article. No homeowner’s association, cooperative, or condominium association may be a provider.
(11) “Provisional certificate of authority” means the certificate issued by the department, properly executed and bearing the State Seal, under Section 1786. A provisional certificate of authority shall be limited to the specific continuing care retirement community and number of units identified in the applicant’s application.
(q) (reserved)
(r) (1) “Refund reserve” means the reserve a provider is required to maintain, as provided in Section 1792.6.
(2) “Refundable contract” means a continuing care contract that includes a promise, expressed or implied, by the provider to pay an entrance fee refund or to repurchase the transferor’s unit, membership, stock, or other interest in the continuing care retirement community when the promise to refund some or all of the initial entrance fee extends beyond the resident’s sixth year of residency. Providers that enter into refundable contracts shall be subject to the refund reserve requirements of Section 1792.6.
(3) (A) “Repayable contract” means either of the following:
(i) A continuing care contract that includes a promise to repay all or a portion of an entrance fee that is conditioned upon reoccupancy or resale of the unit previously occupied by the resident. A repayable contract shall not be considered a refundable contract for purposes of the refund reserve requirements of Section 1792.6, provided that this conditional promise of repayment is not referred to by the applicant or provider as a “refund.” A provider may repay all or a portion of an entrance fee that is conditioned upon resale of the unit before the resale of the unit. The repayment of an entrance fee before the resale of the unit shall not cause any other entrance fee to be subject to the refund reserve requirements of Section 1792.6, provided that the provider does not promise, at the time of contracting or thereafter, to make this type of early repayment, represent that the provider intends to make this type of early repayment, or indicate that the provider has a practice of making this type of early repayment.
(ii) A continuing care contract that includes a promise to repay all or a portion of an entrance fee on a sequential basis from an entrance fee repayment pool that is funded by the resale of all of the facility units, units in the pool at the facility, as they become available.
(B) A continuing care retirement community that enters into a repayable care contract as set forth in clause (ii) of subparagraph (A), shall do all of the following:
(i) Establish a refund repayment account into which the proceeds from the sale of units in the pool at the facility are to be deposited and from which payments to the designated beneficiaries are made.
(ii) Upon termination of the resident’s contract, enroll assign the designated beneficiary into a pool of designated beneficiaries to whom payments from the refund repayment account are to be made in sequential order to be funded by the proceeds of the sale of all units in the pool at the facility.
(iii) Provide the following notifications to the designated beneficiary:
(I) Notification of his or her status as a designated beneficiary in the pool, including a description of the mechanism for payment from the refund repayment account, pursuant to the terms of the resident contract.
(II) Notification of his or her status as eligible for payment upon the sale of the next unit or units within the pool at the facility that would provide the refund repayment account with sufficient proceeds to enable the facility to make the payment of the full lump sum from the refund repayment account.

(III)Notification, within 7 days, of funds in the refund account becoming sufficient to make the full lump-sum payment.

(iv) The facility shall pay the full lump sum to the designated beneficiary within 14 days of the date of notice required pursuant to subclause (III) of clause (iii). funds in the repayment account becoming sufficient to make the full lump-sum payment.
(C) A repayable contract as set forth in clause (ii) of subparagraph (A) shall not be considered a refundable contract for purposes of the refund reserve requirements of Section 1792.6, provided that this conditional promise of repayment is not referred to by the applicant or provider as a “refund.” A provider may repay all or a portion of an entrance fee that is conditioned upon resale of any unit within the facility before the resale of the unit. The repayment of an entrance fee before the resale of any unit within the facility shall not cause any other entrance fee to be subject to the refund reserve requirements of Section 1792.6, provided that the provider does not promise, at the time of contracting or thereafter, to make this type of early repayment, represent that the provider intends to make this type of early repayment, or indicate that the provider has a practice of making this type of early repayment.
(D) A repayable contract as set forth in clause (ii) of subparagraph (A) shall be subject to all legal requirements otherwise applicable to repayable contracts. contracts, including, but not limited to, Section 1788.4.
(E) The changes made to this paragraph by the measure that added this subparagraph shall apply only to continuing care contracts entered into or amended on or after January 1, 2019.
(4) “Resale fee” means a levy by the provider against the proceeds from the sale of a transferor’s equity interest.
(5) “Reservation fee” refers to consideration collected by an entity that has made a continuing care promise or is proposing to make this promise and has complied with Section 1771.4.
(6) “Resident” means a person who enters into a continuing care contract with a provider, or who is designated in a continuing care contract to be a person being provided or to be provided services, including care, board, or lodging.
(7) “Residential care facility for the elderly” means a housing arrangement as defined by Section 1569.2.
(8) “Residential living unit” means a living unit in a continuing care retirement community that is not used exclusively for assisted living services or nursing services.
(9) “Residential temporary relocation” means the relocation of one or more residents, except in the case of a natural disaster that is out of the provider’s control, from one or more residential living units, assisted living units, skilled nursing units, or a wing, floor, or entire continuing care retirement community building, due to a change of use or major repairs or renovations. A residential temporary relocation shall mean a relocation pursuant to this subdivision that lasts for a period of at least 9 months but that does not exceed 18 months without the written agreement of the resident.
(s) (reserved)
(t) (1) “Termination” means the ending of a continuing care contract as provided for in the terms of the continuing care contract.
(2) “Transfer trauma” means death, depression, or regressive behavior, that is caused by the abrupt and involuntary transfer of an elderly resident from one home to another and results from a loss of familiar physical environment, loss of well-known neighbors, attendants, nurses and medical personnel, the stress of an abrupt break in the small routines of daily life, or the loss of visits from friends and relatives who may be unable to reach the new facility.
(3) “Transferor” means a person who transfers, or promises to transfer, consideration in exchange for care and related services under a continuing care contract or proposed continuing care contract, for the benefit of another. A transferor shall have the same rights to cancel and obtain a refund as the depositor under the deposit agreement or the resident under a continuing care contract.