2012 Florida Statutes
Delinquency proceedings; remedial rights.
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) A provider shall make available to the advisory council, within 30 days after being requested to do so by the council, a plan for obtaining compliance or solvency.
(3) Within 30 days after notification, 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.
(4) 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.
(5) Should the office find 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 office 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 office shall notify the chair of the advisory council.
(6) In the event an order of rehabilitation, liquidation, conservation, reorganization, seizure, or summary proceeding has been entered against a provider, the department and office are vested with all of the powers and duties they have under the provisions of part I of chapter 631 in regard to delinquency proceedings of insurance companies.
(7) If the financial condition of the continuing care facility or provider 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.
(8)(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 the provisions of paragraph (c), shall 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) Should the office determine, at any time during the suspension of its remedial rights as provided in paragraph (a), that the trustee or lender is not in compliance with paragraph (a), or that 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, 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.