2023 Florida Statutes › Title XXXVII - Insurance › Chapter 651 - Continuing Care Contracts › 651.114 - Delinquency Proceedings; Remedial Rights.

651.114 Delinquency proceedings; remedial rights.—
(1) Upon determination by the office that a provider is not in compliance with this chapter, the office may notify the chair of the Continuing Care Advisory Council, who may assist the office in formulating a corrective action plan.
(2) Within 30 days after a request by either the advisory council or the office, a provider shall make a plan for obtaining compliance or solvency available to the advisory council and the office.
(3) Within 30 days after receipt of a plan for obtaining compliance or solvency, the office or, at the request of the office, the advisory council shall:
(a) Consider and evaluate the plan submitted by the provider.
(b) Discuss the problem and solutions with the provider.
(c) Conduct such other business as is necessary.
(d) Report its findings and recommendations to the office, which may require additional modification of the plan.
This subsection may not be construed to delay or prevent the office from taking any regulatory measures it deems necessary regarding the provider that submitted the plan.
(4) If the financial condition of a continuing care provider is impaired or is such that if not modified or corrected, its continued operation would result in insolvency, the office may direct the provider to formulate and file with the office a corrective action plan. If the provider fails to submit a plan within 30 days after the office’s directive or submits a plan that is insufficient to correct the condition, the office may specify a plan and direct the provider to implement the plan. Before specifying a plan, the office may seek a recommended plan from the advisory council.
(5) After receiving approval of a plan by the office, the provider shall submit a progress report monthly to the advisory council or the office, or both, in a manner prescribed by the office. After 3 months, or at any earlier time deemed necessary, the council shall evaluate the progress by the provider and shall advise the office of its findings.
(6) If the office finds that sufficient grounds exist for rehabilitation, liquidation, conservation, reorganization, seizure, or summary proceedings of an insurer as set forth in ss. 631.051, 631.061, and 631.071, the department may petition for an appropriate court order or may pursue such other relief as is afforded in part I of chapter 631. Before invoking its powers under part I of chapter 631, the department shall notify the chair of the advisory council.
(7) For purposes of s. 631.051, impairment of a provider has the same meaning as the term “impaired” in s. 651.011.
(8) In the event an order of conservation, rehabilitation, liquidation, or seizure has been entered against a provider, the department and office are vested with all of the powers and duties they have under part I of chapter 631 in regard to delinquency proceedings of insurance companies. A provider shall give written notice of the proceeding to its residents within 3 business days after the initiation of a delinquency proceeding under chapter 631 and shall include a notice of the delinquency proceeding in any written materials provided to prospective residents.
(9) A provider subject to an order to show cause entered pursuant to chapter 631 must file its written response to the order, together with any defenses it may have to the department’s allegations, according to the time periods specified in s. 631.031(3).
(10) A hearing held pursuant to chapter 631 to determine whether cause exists for the department to be appointed receiver must be held in accordance with the time period specified in s. 631.031(4).
(11)(a) The rights of the office described in this section are subordinate to the rights of a trustee or lender pursuant to the terms of a resolution, ordinance, loan agreement, indenture of trust, mortgage, lease, security agreement, or other instrument creating or securing bonds or notes issued to finance a facility, and the office, subject to paragraph (c), may not exercise its remedial rights provided under this section and ss. 651.018, 651.106, 651.108, and 651.116 with respect to a facility that is subject to a lien, mortgage, lease, or other encumbrance or trust indenture securing bonds or notes issued in connection with the financing of the facility, if the trustee or lender, by inclusion or by amendment to the loan documents or by a separate contract with the office, agrees that the rights of residents under a continuing care or continuing care at-home contract will be honored and will not be disturbed by a foreclosure or conveyance in lieu thereof as long as the resident:
1. Is current in the payment of all monetary obligations required by the contract;
2. Is in compliance and continues to comply with all provisions of the contract; and
3. Has asserted no claim inconsistent with the rights of the trustee or lender.
(b) This subsection does not require a trustee or lender to:
1. Continue to engage in the marketing or resale of new continuing care or continuing care at-home contracts;
2. Pay any rebate of entrance fees as may be required by a resident’s continuing care or continuing care at-home contract as of the date of acquisition of the facility by the trustee or lender and until expiration of the period described in paragraph (d);
3. Be responsible for any act or omission of any owner or operator of the facility arising before the acquisition of the facility by the trustee or lender; or
4. Provide services to the residents to the extent that the trustee or lender would be required to advance or expend funds that have not been designated or set aside for such purposes.
(c) If the office determines, at any time during the suspension of its remedial rights as provided in paragraph (a), that:
1. The trustee or lender is not in compliance with paragraph (a);
2. A lender or trustee has assigned or has agreed to assign all or a portion of a delinquent or defaulted loan to a third party without the office’s written consent;
3. The provider engaged in the misappropriation, conversion, or illegal commitment or withdrawal of minimum liquid reserve or escrowed funds required under this chapter;
4. The provider refused to be examined by the office pursuant to s. 651.105(1); or
5. The provider refused to produce any relevant accounts, records, and files requested as part of an examination,
the office shall notify the trustee or lender in writing of its determination, setting forth the reasons giving rise to the determination and specifying those remedial rights afforded to the office which the office shall then reinstate.
(d) Upon acquisition of a facility by a trustee or lender and evidence satisfactory to the office that the requirements of paragraph (a) have been met, the office shall issue a 90-day temporary certificate of authority granting the trustee or lender the authority to engage in the business of providing continuing care or continuing care at-home and to issue continuing care or continuing care at-home contracts subject to the office’s right to immediately suspend or revoke the temporary certificate of authority if the office determines that any of the grounds described in s. 651.106 apply to the trustee or lender or that the terms of the contract used as the basis for the issuance of the temporary certificate of authority by the office have not been or are not being met by the trustee or lender since the date of acquisition.
History.—s. 1, ch. 77-323; s. 2, ch. 80-355; ss. 19, 25, ch. 81-292; s. 2, ch. 81-318; s. 3, ch. 83-265; ss. 20, 31, 33, 35, ch. 83-328; s. 8, ch. 86-209; s. 12, ch. 91-98; s. 184, ch. 91-108; ss. 10, 12, ch. 93-22; s. 515, ch. 97-102; s. 22, ch. 97-229; s. 47, ch. 99-7; s. 1690, ch. 2003-261; s. 14, ch. 2010-202; s. 14, ch. 2011-193; s. 29, ch. 2019-160.