Senate Bill No. 939

Introduced by Senator Monning

February 3, 2016

An act to amend Sections 1771, 1788, and 1788.4 of the Health and Safety Code, relating to continuing care contracts.

LEGISLATIVE COUNSEL’S DIGEST

SB 939, as introduced, Monning. Continuing care contracts: cancellation: payments.

Existing law requires a continuing care retirement facility, as defined, to possess a certificate of authority issued by the State Department of Social Services before it can enter into a continuing care contract, as defined. Existing law requires that a continuing care contract be in writing and contain specified information. Existing law provides that a continuing care contract may be canceled without cause by written notice from either party within 90 days of the resident’s initial occupancy.

Existing law requires a provider to pay, during the cancellation period, all refunds owed to a resident within 14 days after a resident makes possession of the living unit available to the provider. Existing law requires a provider to pay a lump-sum payment that is conditioned upon resale of a unit to a resident within 14 days after resale of the unit.

This bill would instead specify that a continuing care retirement facility pay the full lump-sum payment that is conditioned upon resale of a unit to a resident within 14 days after resale of a unit. The bill would require a continuing care retirement facility, for contracts signed after January 1, 2017, to pay a resident or his or her estate a specified portion of the full lump-sum payment, notwithstanding a provider’s documented good-faith effort to resell the unit, if the unit remains vacant 120 days after the resident’s termination. The bill would require any payment balance not paid to a resident within 180 days to accrue simple interest, to be compounded annually, at a rate of 4% until the full lump-sum payment is made. The bill would require any payment balance not paid to a resident within 240 days to accrue simple interest, to be compounded annually, at a rate of 6% until the full lump-sum payment is made. The bill would require a facility to make the lump-sum payment to a resident’s estate if the resident is deceased. The bill would provide that, until January 1, 2018, these provisions do not apply to specified projects that are in development prior to January 1, 2017, provided that the initial contract for the project is entered into on or before January 1, 2018. The bill would provide that the repayment by a provider of all or a portion of an entrance fee before the resale of a unit would not subject any other entrance fee to the refund reserve requirements, except as provided.

The bill would make corresponding changes to require a continuing care contract to contain a statement that a provider is prohibited from charging the resident or his or her estate a monthly fee once a unit has been permanently vacated by the resident, unless the fee is part of an equity interest contract. The bill would also require a continuing care contract that provides for a refund or repayment of a lump sum of all or part of the entrance fee to include a statement that the provider will make a good-faith effort to reoccupy or resell a unit for which a lump-sum payment is conditioned upon resale of the unit.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated 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
begin delete principles end delete begin insert principles, end insert 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 begin delete Farmer’s end delete begin insert Farmers end insert 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. begin delete No end delete begin insert A end insert change begin delete may end delete begin insert shall not end insert 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 begin delete services end delete begin insert services, end insert 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)  begin insert (A) end insert begin insert   end insert “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. begin delete 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 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.” end delete

begin insert

(B) 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 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.

end insert

(3) “Resale fee” means a levy by the provider against the
proceeds from the sale of a transferor’s equity interest.

(4) “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.

(5) “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.

(6) “Residential care facility for the elderly” means a housing
arrangement as defined by Section 1569.2.

(7) “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.

(8) “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 begin delete nine end delete begin insert 9 end insert 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.

SEC. 2.  

Section 1788 of the Health and Safety Code is amended
to read:

1788.  

(a) A continuing care contract shall contain all of the
following:

(1) The legal name and address of each provider.

(2) The name and address of the continuing care retirement
community.

(3) The resident’s name and the identity of the unit the resident
will occupy.

(4) If there is a transferor other than the resident, the transferor
shall be a party to the contract and the transferor’s name and
address shall be specified.

(5) If the provider has used the name of any charitable or
religious or nonprofit organization in its title before January 1,
1979, and continues to use that name, and that organization is not
responsible for the financial and contractual obligations of the
provider or the obligations specified in the continuing care contract,
the provider shall include in every continuing care contract a
conspicuous statement that clearly informs the resident that the
organization is not financially responsible.

(6) The date the continuing care contract is signed by the
resident and, where applicable, any other transferor.

(7) The duration of the continuing care contract.

(8) A list of the services that will be made available to the
resident as required to provide the appropriate level of care. The
list of services shall include the services required as a condition
for licensure as a residential care facility for the elderly, including
all of the following:

(A) Regular observation of the resident’s health status to ensure
that his or her dietary needs, social needs, and needs for special
services are satisfied.

(B) Safe and healthful living accommodations, including
housekeeping services and utilities.

(C) Maintenance of house rules for the protection of residents.

(D) A planned activities program, which includes social and
recreational activities appropriate to the interests and capabilities
of the resident.

(E) Three balanced, nutritious meals and snacks made available
daily, including special diets prescribed by a physician as a medical
necessity.

(F) Assisted living services.

(G) Assistance with taking medications.

(H) Central storing and distribution of medications.

(I) Arrangements to meet health needs, including arranging
transportation.

(9) An itemization of the services that are included in the
monthly fee and the services that are available at an extra charge.
The provider shall attach a current fee schedule to the continuing
care contract. begin insert The schedule shall state that a provider is prohibited
from charging the resident or his or her estate a monthly fee once
a unit has been permanently vacated by the resident, unless the
fee is part of an equity interest contract. end insert

(10) The procedures and conditions under which a resident may
be voluntarily and involuntarily transferred from a designated
living unit. The transfer procedures, at a minimum, shall include
provisions addressing all of the following circumstances under
which a transfer may be authorized:

(A) A continuing care retirement community may transfer a
resident under the following conditions, taking into account the
appropriateness and necessity of the transfer and the goal of
promoting resident independence:

(i) The resident is nonambulatory. The definition of
“nonambulatory,” as provided in Section 13131, shall either be
stated in full in the continuing care contract or be cited. If Section
13131 is cited, a copy of the statute shall be made available to the
resident, either as an attachment to the continuing care contract or
by specifying that it will be provided upon request. If a
nonambulatory resident occupies a room that has a fire clearance
for nonambulatory residents, transfer shall not be necessary.

(ii) The resident develops a physical or mental condition that
endangers the health, safety, or well-being of the resident or another
person.

(iii) The resident’s condition or needs require the resident’s
transfer to an assisted living care unit or skilled nursing facility,
because the level of care required by the resident exceeds that
which may be lawfully provided in the living unit.

(iv) The resident’s condition or needs require the resident’s
transfer to a nursing facility, hospital, or other facility, and the
provider has no facilities available to provide that level of care.

(B) Before the continuing care retirement community transfers
a resident under any of the conditions set forth in subparagraph
(A), the community shall satisfy all of the following requirements:

(i) Involve the resident and the resident’s responsible person,
as defined in paragraph (6) of subdivision (r) of Section 87101 of
Title 22 of the California Code of Regulations, and upon the
resident’s or responsible person’s request, family members, or the
resident’s physician or other appropriate health professional, in
the assessment process that forms the basis for the level of care
transfer decision by the provider. The provider shall offer an
explanation of the assessment process. If an assessment tool or
tools, including scoring and evaluating criteria, are used in the
determination of the appropriateness of the transfer, the provider
shall make copies of the completed assessment available upon the
request of the resident or the resident’s responsible person.

(ii) Prior to sending a formal notification of transfer, the provider
shall conduct a care conference with the resident and the resident’s
responsible person, and upon the resident’s or responsible person’s
request, family members, and the resident’s health care
professionals, to explain the reasons for transfer.

(iii) Notify the resident and the resident’s responsible person
of the reasons for the transfer in writing.

(iv) Notwithstanding any other provision of this subparagraph,
if the resident does not have impairment of cognitive abilities, the
resident may request that his or her responsible person not be
involved in the transfer process.

(v) The notice of transfer shall be made at least 30 days before
the transfer is expected to occur, except when the health or safety
of the resident or other residents is in danger, or the transfer is
required by the resident’s urgent medical needs. Under those
circumstances, the written notice shall be made as soon as
practicable before the transfer.

(vi) The written notice shall contain the reasons for the transfer,
the effective date, the designated level of care or location to which
the resident will be transferred, a statement of the resident’s right
to a review of the transfer decision at a care conference, as provided
for in subparagraph (C), and for disputed transfer decisions, the
right to review by the Continuing Care Contracts Branch of the
State Department of Social Services, as provided for in
subparagraph (D). The notice shall also contain the name, address,
and telephone number of the department’s Continuing Care
Contracts Branch.

(vii) The continuing care retirement community shall provide
sufficient preparation and orientation to the resident to ensure a
safe and orderly transfer and to minimize trauma.

(C) The resident has the right to review the transfer decision at
a subsequent care conference that shall include the resident, the
resident’s responsible person, and upon the resident’s or
responsible person’s request, family members, the resident’s
physician or other appropriate health care professional, and
members of the provider’s interdisciplinary team. The local
ombudsperson may also be included in the care conference, upon
the request of the resident, the resident’s responsible person, or
the provider.

(D) For disputed transfer decisions, the resident or the resident’s
responsible person has the right to a prompt and timely review of
the transfer process by the Continuing Care Contracts Branch of
the State Department of Social Services.

(E) The decision of the department’s Continuing Care Contracts
Branch shall be in writing and shall determine whether the provider
failed to comply with the transfer process pursuant to
subparagraphs (A) to (C), inclusive. Pending the decision of the
Continuing Care Contracts Branch, the provider shall specify any
additional care the provider believes is necessary in order for the
resident to remain in his or her unit. The resident may be required
to pay for the extra care, as provided in the contract.

(F) Transfer of a second resident when a shared accommodation
arrangement is terminated.

(11) Provisions describing any changes in the resident’s monthly
fee and any changes in the entrance fee refund payable to the
resident that will occur if the resident transfers from any unit,
including, but not limited to, terminating his or her contract after
18 months of residential temporary relocation, as defined in
paragraph (8) of subdivision (r) of Section 1771. begin insert Unless the fee is
part of an equity interest contract, a provider is prohibited from
charging the resident or his or her estate a monthly fee once a unit
has been permanently vacated by the resident. end insert

(12) The provider’s continuing obligations, if any, in the event
a resident is transferred from the continuing care retirement
community to another facility.

(13) The provider’s obligations, if any, to resume care upon the
resident’s return after a transfer from the continuing care retirement
community.

(14) The provider’s obligations to provide services to the
resident while the resident is absent from the continuing care
retirement community.

(15) The conditions under which the resident must permanently
release his or her living unit.

(16) If real or personal properties are transferred in lieu of cash,
a statement specifying each item’s value at the time of transfer,
and how the value was ascertained.

(A) An itemized receipt that includes the information described
above is acceptable if incorporated as a part of the continuing care
contract.

(B) When real property is or will be transferred, the continuing
care contract shall include a statement that the deed or other
instrument of conveyance shall specify that the real property is
conveyed pursuant to a continuing care contract and may be subject
to rescission by the transferor within 90 days from the date that
the resident first occupies the residential unit.

(C) The failure to comply with this paragraph shall not affect
the validity of title to real property transferred pursuant to this
chapter.

(17) The amount of the entrance fee.

(18) In the event two parties have jointly paid the entrance fee
or other payment that allows them to occupy the unit, the
continuing care contract shall describe how any refund of entrance
fees is allocated.

(19) The amount of any processing fee.

(20) The amount of any monthly care fee.

(21) For continuing care contracts that require a monthly care
fee or other periodic payment, the continuing care contract shall
include the following:

(A) A statement that the occupancy and use of the
accommodations by the resident is contingent upon the regular
payment of the fee.

(B) The regular rate of payment agreed upon (per day, week,
or month).

(C) A provision specifying whether payment will be made in
advance or after services have been provided.

(D) A provision specifying the provider will adjust monthly
care fees for the resident’s support, maintenance, board, or lodging,
when a resident requires medical attention while away from the
continuing care retirement community.

(E) A provision specifying whether a credit or allowance will
be given to a resident who is absent from the continuing care
retirement community or from meals. This provision shall also
state, when applicable, that the credit may be permitted at the
discretion or by special permission of the provider.

(F) A statement of billing practices, procedures, and timelines.
A provider shall allow a minimum of 14 days between the date a
bill is sent and the date payment is due. A charge for a late payment
may only be assessed if the amount and any condition for the
penalty is stated on the bill.

begin insert

(G) A statement that the provider is prohibited from charging
the resident or his or her estate a monthly fee once a unit has been
permanently vacated by the resident, unless the fee is part of an
equity interest contract.

end insert

(22) All continuing care contracts that include monthly care
fees shall address changes in monthly care fees by including either
of the following provisions:

(A) For prepaid continuing care contracts, which include
monthly care fees, one of the following methods:

(i) Fees shall not be subject to change during the lifetime of the
agreement.

(ii) Fees shall not be increased by more than a specified number
of dollars in any one year and not more than a specified number
of dollars during the lifetime of the agreement.

(iii) Fees shall not be increased in excess of a specified
percentage over the preceding year and not more than a specified
percentage during the lifetime of the agreement.

(B) For monthly fee continuing care contracts, except prepaid
contracts, changes in monthly care fees shall be based on projected
costs, prior year per capita costs, and economic indicators.

(23) A provision requiring that the provider give written notice
to the resident at least 30 days in advance of any change in the
resident’s monthly care fees or in the price or scope of any
component of care or other services.

(24) A provision indicating whether the resident’s rights under
the continuing care contract include any proprietary interests in
the assets of the provider or in the continuing care retirement
community, or both. Any statement in a contract concerning an
ownership interest shall appear in a large-sized font or print.

(25) If the continuing care retirement community property is
encumbered by a security interest that is senior to any claims the
residents may have to enforce continuing care contracts, a provision
shall advise the residents that any claims they may have under the
continuing care contract are subordinate to the rights of the secured
lender. For equity projects, the continuing care contract shall
specify the type and extent of the equity interest and whether any
entity holds a security interest.

(26) Notice that the living units are part of a continuing care
retirement community that is licensed as a residential care facility
for the elderly and, as a result, any duly authorized agent of the
department may, upon proper identification and upon stating the
purpose of his or her visit, enter and inspect the entire premises at
any time, without advance notice.

(27) A conspicuous statement, in at least 10-point boldface type
in immediate proximity to the space reserved for the signatures of
the resident and, if applicable, the transferor, that provides as
follows: “You, the resident or transferor, may cancel the transaction
without cause at any time within 90 days from the date you first
occupy your living unit. See the attached notice of cancellation
form for an explanation of this right.”

(28) Notice that during the cancellation period, the continuing
care contract may be canceled upon 30 days’ written notice by the
provider without cause, or that the provider waives this right.

(29) The terms and conditions under which the continuing care
contract may be terminated after the cancellation period by either
party, including any health or financial conditions.

(30) A statement that, after the cancellation period, a provider
may unilaterally terminate the continuing care contract only if the
provider has good and sufficient cause.

(A) Any continuing care contract containing a clause that
provides for a continuing care contract to be terminated for “just
cause,” “good cause,” or other similar provision, shall also include
a provision that none of the following activities by the resident,
or on behalf of the resident, constitutes “just cause,” “good cause,”
or otherwise activates the termination provision:

(i) Filing or lodging a formal complaint with the department or
other appropriate authority.

(ii) Participation in an organization or affiliation of residents,
or other similar lawful activity.

(B) The provision required by this paragraph shall also state
that the provider shall not discriminate or retaliate in any manner
against any resident of a continuing care retirement community
for contacting the department, or any other state, county, or city
agency, or any elected or appointed government official to file a
complaint or for any other reason, or for participation in a residents’
organization or association.

(C) Nothing in this paragraph diminishes the provider’s ability
to terminate the continuing care contract for good and sufficient
cause.

(31) A statement that at least 90 days’ written notice to the
resident is required for a unilateral termination of the continuing
care contract by the provider.

(32) A statement concerning the length of notice that a resident
is required to give the provider to voluntarily terminate the
continuing care contract after the cancellation period.

(33) The policy or terms for refunding begin insert or repaying a lump sum
of end insert any portion of the entrance fee, in the event of cancellation,
termination, or death. Every continuing care contract that provides
for a refund begin insert or repaying a lump sum end insert of all or a part of the entrance
fee shall also do all of the following:

(A) Specify the amount, if any, the resident has paid or will pay
for upgrades, special features, or modifications to the resident’s
unit.

(B) State that if the continuing care contract is canceled or
terminated by the provider, the provider shall do both of the
following:

(i) Amortize the specified amount at the same rate as the
resident’s entrance fee.

(ii) Refund the unamortized balance to the resident at the same
time the provider pays the resident’s entrance fee refund.

(C) State that the resident has a right to terminate his or her
contract after 18 months of residential temporary relocation, as
defined in paragraph (8) of subdivision (r) of Section 1771.
Provisions for refunds due to cancellation pursuant to this
subparagraph shall be set forth in the contract.

begin insert

(D) State the provider shall make a good-faith effort to reoccupy
or resell a unit for which a lump-sum payment is conditioned upon
resale of the unit. No later than July 1, 2017, a provider shall
provide notice to all current residents with contracts applicable
to this subparagraph regarding the statement required by this
subparagraph as a clarification of the resident’s existing contract.

end insert begin insert

(E) For all contracts with a repayment of all or a portion of the
entrance fee conditioned upon the resale of the unit, the provider
shall state the average and longest amount of time that it has taken
to resell a unit within the last five calendar years.

end insert

(34) The following notice at the bottom of the signatory page:

 

“NOTICE”

(date)

 

“This is a continuing care contract as defined by paragraph (8)
of subdivision (c), or subdivision (l) of Section 1771 of the
California Health and Safety Code. This continuing care contract
form has been approved by the State Department of Social Services
as required by subdivision (b) of Section 1787 of the California
Health and Safety Code. The basis for this approval was a
determination that (provider name) has submitted a contract that
complies with the minimum statutory requirements applicable to
continuing care contracts. The department does not approve or
disapprove any of the financial or health care coverage provisions
in this contract. Approval by the department is NOT a guaranty
of performance or an endorsement of any continuing care contract
provisions. Prospective transferors and residents are strongly
encouraged to carefully consider the benefits and risks of this
continuing care contract and to seek financial and legal advice
before signing.”

(35) The provider may not attempt to absolve itself in the
continuing care contract from liability for its negligence by any
statement to that effect, and shall include the following statement
in the contract: “Nothing in this continuing care contract limits
either the provider’s obligation to provide adequate care and
supervision for the resident or any liability on the part of the
provider which may result from the provider’s failure to provide
this care and supervision.”

(36) Provisions describing how the provider will proceed in the
event of a closure, including an explanation of how the provider
will comply with Sections 1793.80, 1793.81, 1793.82, and 1793.83.

(b) A life care contract shall also provide that:

(1) All levels of care, including acute care and physicians’ and
surgeons’ services, will be provided to a resident.

(2) Care will be provided for the duration of the resident’s life
unless the life care contract is canceled or terminated by the
provider during the cancellation period or after the cancellation
period for good cause.

(3) A comprehensive continuum of care will be provided to the
resident, including skilled nursing, in a facility under the ownership
and supervision of the provider on, or adjacent to, the continuing
care retirement community premises.

(4) Monthly care fees will not be changed based on the resident’s
level of care or service.

(5) A resident who becomes financially unable to pay his or her
monthly care fees shall be subsidized provided the resident’s
financial need does not arise from action by the resident to divest
the resident of his or her assets.

(c) Continuing care contracts may include provisions that do
any of the following:

(1) Subsidize a resident who becomes financially unable to pay
for his or her monthly care fees at some future date. If a continuing
care contract provides for subsidizing a resident, it may also
provide for any of the following:

(A) The resident shall apply for any public assistance or other
aid for which he or she is eligible and that the provider may apply
for assistance on behalf of the resident.

(B) The provider’s decision shall be final and conclusive
regarding any adjustments to be made or any action to be taken
regarding any charitable consideration extended to any of its
residents.

(C) The provider is entitled to payment for the actual costs of
care out of any property acquired by the resident subsequent to
any adjustment extended to the resident under this paragraph, or
from any other property of the resident that the resident failed to
disclose.

(D) The provider may pay the monthly premium of the resident’s
health insurance coverage under Medicare to ensure that those
payments will be made.

(E) The provider may receive an assignment from the resident
of the right to apply for and to receive the benefits, for and on
behalf of the resident.

(F) The provider is not responsible for the costs of furnishing
the resident with any services, supplies, and medication, when
reimbursement is reasonably available from any governmental
agency, or any private insurance.

(G) Any refund due to the resident at the termination of the
continuing care contract may be offset by any prior subsidy to the
resident by the provider.

(2) Limit responsibility for costs associated with the treatment
or medication of an ailment or illness existing prior to the date of
admission. In these cases, the medical or surgical exceptions, as
disclosed by the medical entrance examination, shall be listed in
the continuing care contract or in a medical report attached to and
made a part of the continuing care contract.

(3) Identify legal remedies that may be available to the provider
if the resident makes any material misrepresentation or omission
pertaining to the resident’s assets or health.

(4) Restrict transfer or assignments of the resident’s rights and
privileges under a continuing care contract due to the personal
nature of the continuing care contract.

(5) Protect the provider’s ability to waive a resident’s breach
of the terms or provisions of the continuing care contract in specific
instances without relinquishing its right to insist upon full
compliance by the resident with all terms or provisions in the
contract.

(6) Provide that the resident shall reimburse the provider for
any uninsured loss or damage to the resident’s unit, beyond normal
wear and tear, resulting from the resident’s carelessness or
negligence.

(7) Provide that the resident agrees to observe the off-limit areas
of the continuing care retirement community designated by the
provider for safety reasons. The provider may not include any
provision in a continuing care contract that absolves the provider
from liability for its negligence.

(8) Provide for the subrogation to the provider of the resident’s
rights in the case of injury to a resident caused by the acts or
omissions of a third party, or for the assignment of the resident’s
recovery or benefits in this case to the provider, to the extent of
the value of the goods and services furnished by the provider to
or on behalf of the resident as a result of the injury.

(9) Provide for a lien on any judgment, settlement, or recovery
for any additional expense incurred by the provider in caring for
the resident as a result of injury.

(10) Require the resident’s cooperation and assistance in the
diligent prosecution of any claim or action against any third party.

(11) Provide for the appointment of a conservator or guardian
by a court with jurisdiction in the event a resident becomes unable
to handle his or her personal or financial affairs.

(12) Allow a provider, whose property is tax exempt, to charge
the resident, on a pro rata basis, property taxes, or in-lieu taxes,
that the provider is required to pay.

(13) Make any other provision approved by the department.

(d) A copy of the resident’s rights as described in Section 1771.7
shall be attached to every continuing care contract.

(e) A copy of the current audited financial statement of the
provider shall be attached to every continuing care contract. For
a provider whose current audited financial statement does not
accurately reflect the financial ability of the provider to fulfill the
continuing care contract obligations, the financial statement
attached to the continuing care contract shall include all of the
following:

(1) A disclosure that the reserve requirement has not yet been
determined or met, and that entrance fees will not be held in
escrow.

(2) A disclosure that the ability to provide the services promised
in the continuing care contract will depend on successful
compliance with the approved financial plan.

(3) A copy of the approved financial plan for meeting the reserve
requirements.

(4) Any other supplemental statements or attachments necessary
to accurately represent the provider’s financial ability to fulfill its
continuing care contract obligations.

(f) A schedule of the average monthly care fees charged to
residents for each type of residential living unit for each of the five
years preceding execution of the continuing care contract shall be
attached to every continuing care contract. The provider shall
update this schedule annually at the end of each fiscal year. If the
continuing care retirement community has not been in existence
for five years, the information shall be provided for each of the
years the continuing care retirement community has been in
existence.

(g) If any continuing care contract provides for a health
insurance policy for the benefit of the resident, the provider shall
attach to the continuing care contract a binder complying with
Sections 382 and 382.5 of the Insurance Code.

(h) The provider shall attach to every continuing care contract
a completed form in duplicate, captioned “Notice of Cancellation.”
The notice shall be easily detachable, and shall contain, in at least
10-point boldface type, the following statement:

 

“NOTICE OF CANCELLATION”	(date)
Your first date of occupancy under this contract
is: _____________________________________________

 

“You may cancel this transaction, without any penalty within
90 calendar days from the above date.

If you cancel, any property transferred, any payments made by
you under the contract, and any negotiable instrument executed
by you will be returned within 14 calendar days after making
possession of the living unit available to the provider. Any security
interest arising out of the transaction will be canceled.

If you cancel, you are obligated to pay a reasonable processing
fee to cover costs and to pay for the reasonable value of the services
received by you from the provider up to the date you canceled or
made available to the provider the possession of any living unit
delivered to you under this contract, whichever is later.

If you cancel, you must return possession of any living unit
delivered to you under this contract to the provider in substantially
the same condition as when you took possession.

Possession of the living unit must be made available to the
provider within 20 calendar days of your notice of cancellation.
If you fail to make the possession of any living unit available to
the provider, then you remain liable for performance of all
obligations under the contract.

To cancel this transaction, mail or deliver a signed and dated
copy of this cancellation notice, or any other written notice, or
send a telegram

 

to
(Name of provider)
at
(Address of provider’s place of business)
not later than midnight of _____________ (date).
I hereby cancel this transaction
	(Resident’s or Transferor’s signature)”

 

SEC. 3.  

Section 1788.4 of the Health and Safety Code is
amended to read:

1788.4.  

(a)  During the cancellation period, the provider shall
pay all refunds owed to a resident within 14 calendar days after a
resident makes possession of the living unit available to the
provider.

(b)  After the cancellation period, any refunds due to a resident
under a continuing care contract shall be paid within 14 calendar
days after a resident makes possession of the living unit available
to the provider or 90 calendar days after death or receipt of notice
of termination, whichever is later.

(c)  In nonequity projects, if the continuing care contract is
canceled by either party during the cancellation period or
terminated by the provider after the cancellation period, the resident
shall be refunded the difference between the total amount of
entrance, monthly, and optional fees paid and the amount used for
care of the resident.

(d)  If a resident has paid additional amounts for upgrades,
special features, or modifications to the living unit and the provider
terminates the resident’s continuing care contract, the provider
shall amortize those additional amounts at the same rate as the
entrance fee and shall refund the unamortized balance to the
resident.

(e)  A lump-sum payment to a resident after termination of a
continuing care contract that is conditioned upon resale of begin delete a end delete begin insert the end insert
unit shall not be considered to be a refund and may not be
characterized or advertised as a refund. The begin delete lump sum end delete begin insert full
lump-sum end insert payment shall be paid to the resident within 14 calendar
days after resale of the unit.

begin insert

(f) (1) For contracts signed on and after January 1, 2017,
notwithstanding a provider’s documented good-faith effort to resell
the unit, the resident is entitled to the repayment of a specified
portion, pursuant to subparagraphs (A) and (B), of the full
lump-sum payment if the unit remains vacant 120 days after the
resident’s termination of the contract. This repayment shall not
cause the contract in question to be deemed a refundable contract,
as defined in paragraph (2) of subdivision (r) of Section 1771.

end insert begin insert

(A) When a continuing care contract is terminated by the death
of a resident, at least 10 percent of the full lump-sum payment
shall be paid to the resident’s estate within 120 days after the
death of the resident.

end insert begin insert

(B) When a continuing care contract is terminated for a reason
not described in subparagraph (A), at least 20 percent of the full
lump-sum payment shall be paid to the resident within 120 days
after the resident’s termination of the contract.

end insert begin insert

(2) Any payment balance that has not been paid to the resident
within 180 days shall accrue interest at a rate calculated pursuant
to paragraph (3). Any payment balance that has not been paid to
the resident within 240 days shall accrue interest at a rate
calculated pursuant to paragraph (4). Interest shall continue to
accrue until the date the full lump-sum payment is paid to the
resident. This paragraph shall apply only to continuing care
contracts entered into on or after January 1, 2017.

end insert begin insert

(3) Any payments that are not paid to the resident within the
180-day period pursuant to paragraph (2) shall accrue simple
interest, to be compounded annually, at a rate of 4 percent.

end insert begin insert

(4) Any payments that are not paid to the resident within the
240-day period pursuant to paragraph (2) shall accrue simple
interest, to be compounded annually, at a rate of 6 percent.

end insert begin insert

(5) Until January 1, 2018, this subdivision shall not apply to a
project that is in development prior to January 1, 2017, including
current repayable agreements, current deposit agreements that
contemplate repayable entrance fees, and other projects that have
received department approval to market units pursuant to Section
1771.4, or have received issuer, lender, or bond insurer approval
to obtain bond financing, or other governmental approval based
on a repayable entrance fee option, if the initial contract for the
project is entered into on or before January 1, 2018.

end insert begin insert

(g) (1) After the death of a resident, a lump-sum payment that
is conditioned upon resale of a unit shall be subject to subdivision
(f) and the payment and interest, if any, shall be payable to the
resident’s estate.

end insert begin insert

(2) Until January 1, 2018, this subdivision shall not apply to a
project that is in development prior to January 1, 2017, including
current repayable agreements, current deposit agreements that
contemplate repayable entrance fees, and other projects that have
received department approval to market units pursuant to Section
1771.4, or have received issuer, lender, or bond insurer approval
to obtain bond financing, or other governmental approval based
on a repayable entrance fee option, if the initial contract for the
project is entered into on or before January 1, 2018.

end insert begin insert

(h) Except as otherwise obligated by an equity interest contract,
once the unit has been vacated and made available to the provider,
the provider shall not make any further charges to the resident or
his or her estate or charges against the lump-sum payment that is
due to the resident for purposes of continued monthly payments
to the provider or for maintenance or housekeeping on the vacated
unit.

end insert begin insert

(i) Nothing in this section shall be construed to limit or alter
any legal remedies otherwise available to a resident or his or her
estate.

end insert