1     
CONTINUING CARE RETIREMENT COMMUNITY AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Earl D. Tanner

5     
Senate Sponsor: Deidre M. Henderson

6     

7     LONG TITLE
8     General Description:
9          This bill enacts provisions related to continuing care providers.
10     Highlighted Provisions:
11          This bill:
12          ▸      includes a continuing care provider within the jurisdiction of the Insurance
13     Department;
14          ▸     authorizes the commissioner to create a continuing care advisory committee;
15          ▸     provides operating requirements for a continuing care provider;
16          ▸     requires a continuing care provider to register with the Insurance Department;
17          ▸     provides form and content requirements for a continuing care contract;
18          ▸     requires a continuing care provider to make certain disclosures;
19          ▸     provides requirements for a successor to a continuing care provider's assets;
20          ▸     grants rulemaking and enforcement authority to the Insurance Department;
21          ▸     imposes criminal and civil penalties; and
22          ▸     creates a private right of action.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     ENACTS:
29          31A-44-101, Utah Code Annotated 1953

30          31A-44-102, Utah Code Annotated 1953
31          31A-44-103, Utah Code Annotated 1953
32          31A-44-104, Utah Code Annotated 1953
33          31A-44-201, Utah Code Annotated 1953
34          31A-44-202, Utah Code Annotated 1953
35          31A-44-203, Utah Code Annotated 1953
36          31A-44-204, Utah Code Annotated 1953
37          31A-44-205, Utah Code Annotated 1953
38          31A-44-206, Utah Code Annotated 1953
39          31A-44-301, Utah Code Annotated 1953
40          31A-44-302, Utah Code Annotated 1953
41          31A-44-303, Utah Code Annotated 1953
42          31A-44-304, Utah Code Annotated 1953
43          31A-44-305, Utah Code Annotated 1953
44          31A-44-306, Utah Code Annotated 1953
45          31A-44-307, Utah Code Annotated 1953
46          31A-44-308, Utah Code Annotated 1953
47          31A-44-309, Utah Code Annotated 1953
48          31A-44-310, Utah Code Annotated 1953
49          31A-44-311, Utah Code Annotated 1953
50          31A-44-312, Utah Code Annotated 1953
51          31A-44-313, Utah Code Annotated 1953
52          31A-44-314, Utah Code Annotated 1953
53          31A-44-401, Utah Code Annotated 1953
54          31A-44-402, Utah Code Annotated 1953
55          31A-44-403, Utah Code Annotated 1953
56          31A-44-404, Utah Code Annotated 1953
57          31A-44-405, Utah Code Annotated 1953

58          31A-44-501, Utah Code Annotated 1953
59          31A-44-502, Utah Code Annotated 1953
60          31A-44-503, Utah Code Annotated 1953
61          31A-44-504, Utah Code Annotated 1953
62          31A-44-505, Utah Code Annotated 1953
63          31A-44-506, Utah Code Annotated 1953
64          31A-44-601, Utah Code Annotated 1953
65          31A-44-602, Utah Code Annotated 1953
66          31A-44-603, Utah Code Annotated 1953
67          31A-44-604, Utah Code Annotated 1953
68          31A-44-605, Utah Code Annotated 1953
69     

70     Be it enacted by the Legislature of the state of Utah:
71          Section 1. Section 31A-44-101 is enacted to read:
72     
CHAPTER 44. CONTINUING CARE PROVIDER ACT

73          31A-44-101. Title.
74          This chapter is known as the "Continuing Care Provider Act."
75          Section 2. Section 31A-44-102 is enacted to read:
76          31A-44-102. Definitions.
77          As used in this chapter:
78          (1) "Continuing care" means the furnishing to an individual, other than by an
79     individual related to the individual by blood, marriage, or adoption, of lodging together with
80     nursing services, medical services, or other related services pursuant to a contract requiring an
81     entrance fee.
82          (2) "Continuing care contract" means a contract under which a provider provides
83     continuing care to a resident.
84          (3) (a) "Entrance fee" means an initial or deferred transfer to a provider of a sum of
85     money or property made or promised to be made as full or partial consideration for acceptance

86     of a specified individual as a resident in a facility.
87          (b) "Entrance fee" includes a monthly fee, assessed at a rate that is greater than the
88     value of the provider's monthly services, that a resident agrees to pay in exchange for
89     acceptance into a facility or a promise of future monthly fees assessed at a rate that is less than
90     the value of the services rendered.
91          (c) "Entrance fee" does not include an amount less than the sum of the regular period
92     charges for three months of residency in a facility.
93          (d) "Entrance fee" does not include a deposit of less than $1,000 made under a
94     reservation agreement.
95          (4) "Facility" means a place in which a person provides continuing care.
96          (5) "Living unit" means a room, apartment, cottage, or other area within a facility set
97     aside for the exclusive use or control of one or more identified individuals.
98          (6) "Provider" means:
99          (a) the owner of a facility;
100          (b) a person, other than a resident, that claims a possessory interest in a facility; or
101          (c) a person who enters into a continuing care contract with a resident or potential
102     resident.
103          (7) "Provider disclosure statement" means, for a given provider, the disclosure
104     statement described in Section 31A-44-301.
105          (8) "Reservation agreement" means an agreement that requires the payment of a
106     deposit to reserve a living unit for a prospective resident.
107          (9) "Resident" means an individual entitled to receive continuing care in a facility
108     pursuant to a continuing care contract.
109          Section 3. Section 31A-44-103 is enacted to read:
110          31A-44-103. Advisory committee.
111          (1) The commissioner may convene a continuing care advisory committee to advise the
112     department on issues related to the continuing care industry, continuing care facility residents,
113     and the department's duties under this chapter.

114          (2) The committee described in Subsection (1) shall consist of five members appointed
115     by the department as follows:
116          (a) a representative from an organization that advocates for the elderly;
117          (b) a representative of nursing homes;
118          (c) a representative from the continuing care industry;
119          (d) a representative from the insurance community; and
120          (e) a member of the general public who is a resident of a continuing care facility.
121          (3) (a) Except as required by Subsection (3)(b), the term of a member of the committee
122     shall be four years and expire on July 1.
123          (b) The commissioner shall, at the time of appointment or reappointment, adjust the
124     length of terms to ensure that the terms of members are staggered so that approximately half of
125     the committee is appointed every two years.
126          (4) A member of the committee shall serve until the member's successor is appointed
127     and qualified.
128          (5) When a vacancy occurs in the committee's membership, the department shall
129     appoint a replacement.
130          (6) The department may dismiss and replace members of the committee at the
131     department's discretion.
132          (7) The department may designate a chair of the committee.
133          (8) The committee shall meet when called by the department.
134          (9) A member may not receive compensation or benefits for the member's service, but
135     may receive per diem and travel expenses in accordance with:
136          (a) Section 63A-3-106;
137          (b) Section 63A-3-107; and
138          (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
139     63A-3-107.
140          (10) The department shall staff the committee.
141          Section 4. Section 31A-44-104 is enacted to read:

142          31A-44-104. Scope of regulation -- When compliance required.
143          (1) The regulation of providers under this chapter does not limit or replace regulation
144     by any other governmental entity of continuing care facilities or providers.
145          (2) The department may not regulate, or in any manner inquire into, the quality of care
146     provided in a facility.
147          (3) A record that the department receives from a provider that is not required to be part
148     of a disclosure statement under this chapter is a protected record under Title 63G, Chapter 2,
149     Government Records Access and Management Act.
150          (4) The department shall determine the amount of any fee required under this chapter,
151     in accordance with Section 63J-1-504, and in an amount that covers the department's cost to
152     administer this chapter.
153          (5) A provider that begins a continuing care facility project on or before May 10, 2016,
154     is not required to comply with this chapter until May 10, 2017.
155          Section 5. Section 31A-44-201 is enacted to read:
156     
Part 2. Registration

157          31A-44-201. Registration required.
158          (1) A person may not provide or offer to provide continuing care unless the person is
159     registered with the department.
160          (2) A registration expires on December 31 of a given year, unless a provider renews the
161     provider's registration under Section 31A-44-203.
162          Section 6. Section 31A-44-202 is enacted to read:
163          31A-44-202. Registration.
164          (1) To register under this part, a person shall:
165          (a) pay an original registration fee established by the department in accordance with
166     Section 63J-1-504; and
167          (b) submit a registration statement, in a form approved by the department, that contains
168     the information described in Subsection (2).
169          (2) A provider's registration statement shall include:

170          (a) the provider disclosure described in Section 31A-44-301;
171          (b) a copy of the continuing care contract that the provider will propose to a
172     prospective facility resident;
173          (c) evidence that the provider's facility is located or will be located in a zone that a
174     municipality or county has zoned for continuing care facilities; and
175          (d) information required by the department by rule made in accordance with Title 63G,
176     Chapter 3, Utah Administrative Rulemaking Act.
177          (3) The department shall accept or deny a registration no later than 180 days after the
178     day on which the provider applies for registration.
179          Section 7. Section 31A-44-203 is enacted to read:
180          31A-44-203. Renewal process.
181          In order to renew a registration under this section, a provider shall:
182          (1) pay an annual fee established by the department in accordance with Section
183     63J-1-504;
184          (2) submit an updated provider disclosure statement that complies with Section
185     31A-44-301;
186          (3) submit a copy of the most recent version of the continuing care contract the
187     provider will propose to a prospective facility resident; and
188          (4) comply with rules made by the department under Subsection 31A-44-202(2).
189          Section 8. Section 31A-44-204 is enacted to read:
190          31A-44-204. Actuarial review.
191          (1) (a) This section applies only to a provider that directly or indirectly offers a future
192     guarantee of continuing care that the department determines develops current actuarial
193     liabilities.
194          (b) This section does not apply to a provider that offers continuing care under a
195     fee-for-service model with a required entrance fee.
196          (2) A provider subject to this section shall file, with the department, an actuarial
197     review:

198          (a) upon being notified of the department's determination; and
199          (b) on a day designated by the department in the year five years after the day on which
200     the department last received an actuarial review from the provider.
201          (3) The department may require an actuarial review in addition to the actuarial reviews
202     required by Subsection (2) if the department determines that the provider shows an indication
203     of financial instability.
204          Section 9. Section 31A-44-205 is enacted to read:
205          31A-44-205. Suspension or revocation of registration.
206          The department may suspend or revoke a provider's registration if the provider
207     intentionally violates this chapter.
208          Section 10. Section 31A-44-206 is enacted to read:
209          31A-44-206. Management by others.
210          A provider may not contract for total management of a facility unless the provider
211     notifies the department.
212          Section 11. Section 31A-44-301 is enacted to read:
213     
Part 3. Provider Disclosure

214          31A-44-301. Precontractual recording requirements.
215          (1) A provider shall file with the department a current disclosure statement that meets
216     the requirements of this part.
217          (2) A provider shall comply with Subsection (1) before the provider:
218          (a) contracts to provide continuing care to a resident in this state;
219          (b) extends the term of an existing continuing care contract with a resident in this state
220     that requires a person to pay an entrance fee, regardless of whether the extended continuing
221     care contract requires an entrance fee; or
222          (c) solicits or offers, or directs another person to solicit or offer, a continuing care
223     contract to a resident of the state.
224          (3) A provider solicits or offers a contract under Subsection (2)(c), if, after 12 months
225     before the day on which a party to a continuing care contract signs or accepts a continuing care

226     contract, the provider or a person acting on behalf of the provider gives information concerning
227     the facility or the availability of a continuing care contract for the facility:
228          (a) in a direct communication to an individual in the state; or
229          (b) in a paid advertisement published in or broadcast from the state, except for a paid
230     advertisement in a publication with more than two-thirds of the publication's circulation
231     outside of the state.
232          Section 12. Section 31A-44-302 is enacted to read:
233          31A-44-302. Delivery of disclosure statement .
234          (1) A provider shall deliver a disclosure statement to an individual before the earlier of
235     the date:
236          (a) the provider executes a continuing care contract with the individual; or
237          (b) the individual transfers an entrance fee or a nonrefundable deposit to the provider.
238          (2) The most recently filed disclosure statement:
239          (a) is current for the purpose of this chapter; and
240          (b) is the only disclosure statement that satisfies the requirements described in
241     Subsection (1).
242          Section 13. Section 31A-44-303 is enacted to read:
243          31A-44-303. Cover page of disclosure statement .
244          The cover page of a disclosure statement shall state:
245          (1) the disclosure statement's date in a prominent location and in type that is boldfaced,
246     capitalized, underlined, or otherwise set out from the surrounding written material so as to be
247     conspicuous;
248          (2) that the provider is required to deliver a disclosure statement to an individual before
249     the provider executes a continuing care contract with the individual or accepts payment of an
250     entrance fee or a nonrefundable deposit from the individual; and
251          (3) that the disclosure statement has not been approved by a government agency to
252     ensure the disclosure statement's accuracy.
253          Section 14. Section 31A-44-304 is enacted to read:

254          31A-44-304. Disclosure statement -- Contents -- Provider characteristics .
255          A provider disclosure statement shall contain:
256          (1) the name and business address of each provider officer, director, trustee, and
257     managing or general partner of the provider;
258          (2) the name and business address of each person who has at least a 10% interest in the
259     provider and a description of the person's interest in or occupation with the provider;
260          (3) a statement of whether the continuing care provider is a for-profit or not-for-profit
261     entity, and a statement of the provider's tax-exempt status, if any;
262          (4) (a) the location and a description of the proposed or existing physical property of
263     the facility; and
264          (b) if the physical property is proposed:
265          (i) the property's estimated completion date;
266          (ii) whether construction has begun; and
267          (iii) conditions known to the provider under which the property's construction could be
268     deferred;
269          (5) if the provider intends to contract with a person other than an employee of the
270     provider to manage the operations of the facility:
271          (a) a description of the person's experience in the operation or management of a
272     continuing care or similar facility;
273          (b) a description of any entity that controls or is controlled by the person that proposes
274     to provide goods, leases, or services to residents of the facility, of an aggregate value of $500
275     or greater in a year;
276          (c) a description of any goods, leases, or services described in Subsection (5)(b), and a
277     statement of the probable or anticipated cost to the facility, provider, or residents for the goods,
278     leases, or services, or a statement that the provider is unable to estimate the cost; and
279          (d) a description of any matter in which the person:
280          (i) has been convicted of a felony;
281          (ii) is subject to a restrictive court order; or

282          (iii) has had a state or federal license revoked as a result of a matter related to a
283     continuing care facility or a related health care field; and
284          (6) (a) any religious, charitable, or nonprofit organization affiliated with the provider;
285          (b) the extent of the affiliation and the extent to which the organization is responsible
286     for contractual or financial obligations of the provider; and
287          (c) the organization's tax-exempt status, if any.
288          Section 15. Section 31A-44-305 is enacted to read:
289          31A-44-305. Disclosure statement -- Contents -- Contract .
290          A provider disclosure statement shall include a description of the following provisions
291     contained in the provider's continuing care contract:
292          (1) a description of the services provided under the provider's proposed continuing care
293     contract, including a description of:
294          (a) the extent to which the provider will offer or provide medical care to a resident; and
295          (b) the services the provider includes under the contract, and the services the provider
296     offers at an extra charge;
297          (2) the fees the provider requires a resident to pay, including any entrance fees or
298     periodic charges;
299          (3) a description of the conditions, in the provider's continuing care contract, under
300     which:
301          (a) a provider or a resident may cancel the continuing care contract;
302          (b) a provider will refund all or part of an entrance fee; or
303          (c) a provider may adjust a fee the provider charges a resident and any limitations on
304     those adjustments;
305          (4) any health or financial criteria that a resident is required to meet under the
306     continuing care contract for acceptance to the facility or for the resident to continue living in
307     the facility, including the effect of any change in the health or financial condition of an
308     individual between the date of the continuing care contract and the date on which the
309     individual initially occupies a living unit;

310          (5) the provider's policy for the spouse of a resident, regarding:
311          (a) the conditions under which the spouse is allowed to live in the resident's unit; and
312          (b) the financial or other consequences to the resident if the spouse does not meet the
313     requirements for admission;
314          (6) the provider's policy regarding changes in the number of people residing in a living
315     unit because of marriage or other relationships;
316          (7) the conditions under which a living unit occupied by a resident may be made
317     available by the provider to a different resident other than on the death of the previous resident;
318     and
319          (8) the number of continuing care contracts terminated, other than by the resident's
320     death, at the provider's facility in the state during the three most recent calendar years.
321          Section 16. Section 31A-44-306 is enacted to read:
322          31A-44-306. Disclosure statement -- Contents -- Health care information .
323          The provider disclosure statement shall include:
324          (1) a description of the facility as an independent living, assisted living, or nursing care
325     facility, or a combination of facility types;
326          (2) a general description of medical services provided at the facility in addition to
327     assisted living services and nursing care services;
328          (3) a statement as to whether the facility accepts Medicare and Medicaid
329     reimbursements; and
330          (4) notice of the online federal nursing care facility database and the online federal
331     nursing care facility database's Internet address.
332          Section 17. Section 31A-44-307 is enacted to read:
333          31A-44-307. Disclosure statement -- Contents -- Financial information.
334          The provider disclosure statement shall:
335          (1) describe any provisions the provider made or will make to provide reserve funding
336     or security to enable the provider to fully perform the provider's obligations under a continuing
337     care contract, including:

338          (a) the establishment of an escrow account, trust, or reserve fund, and the manner in
339     which the provider will invest the account, trust, or reserve funds; and
340          (b) the name and experience of an individual in the provider's direct employment who
341     will make the investment decisions;
342          (2) contain a provider financial statement, prepared in accordance with generally
343     accepted accounting principles, and audited by an independent certified public account, that
344     includes:
345          (a) a balance sheet as of the end of the most recent fiscal year;
346          (b) an income statement for each of the three most recent fiscal years; and
347          (c) a cash flow statement for each of the three most recent fiscal years.
348          Section 18. Section 31A-44-308 is enacted to read:
349          31A-44-308. Anticipated source and application of funds.
350          If a provider's facility is not in operation, the provider disclosure statement shall include
351     a statement of the provider's anticipated source and application of funds to be used in the
352     purchase or construction of the facility, including:
353          (1) an estimate of the cost of purchasing or constructing and of equipping the facility,
354     including financing expenses, legal expenses, land costs, occupancy development costs, and
355     any other costs that the provider expects to incur or to become obligated to pay before the
356     facility begins operating;
357          (2) a description of any mortgage loan or other long-term financing arrangement for the
358     facility, including the anticipated terms and costs of the financing;
359          (3) an estimate of the total entrance fees to be received from, or on behalf of, residents
360     before the facility begins operation; and
361          (4) an estimate of any funds the provider anticipates are necessary to cover the facility's
362     initial losses.
363          Section 19. Section 31A-44-309 is enacted to read:
364          31A-44-309. Standard contract form.
365          (1) A provider shall attach a copy of the provider's standard contract form to a

366     disclosure statement.
367          (2) The standard contract form shall specify the refund provisions of Sections
368     31A-44-312 and 31A-44-313.
369          Section 20. Section 31A-44-310 is enacted to read:
370          31A-44-310. Annual disclosure statement revision.
371          (1) A provider shall file a revised disclosure statement with the department before 120
372     days after the day on which the provider's fiscal year ends.
373          (2) The revised disclosure statement shall revise, as of the end of the provider's fiscal
374     year, the information required by this part.
375          (3) The revised disclosure statement shall describe any material differences between:
376          (a) the estimated income statements filed under Section 31A-44-307 as a part of the
377     disclosure statement the provider filed after the start of the provider's most recently completed
378     fiscal year; and
379          (b) the actual result of operations during that fiscal year with the revised estimated
380     income statements filed as a part of the revised disclosure statement.
381          (4) A provider may revise the provider's disclosure statement and may file a revised
382     disclosure statement at any time if, in the provider's opinion, a revision is necessary to prevent
383     a disclosure statement from containing a material misstatement of fact or omitting a material
384     fact required by this part.
385          (5) The department:
386          (a) shall review the disclosure statement for completeness; and
387          (b) is not required to review the disclosure statement for accuracy.
388          Section 21. Section 31A-44-311 is enacted to read:
389          31A-44-311. Advertisement in conflict with disclosures.
390          A provider may not engage in any type of advertisement for a continuing care contract
391     or facility if the advertisement contains a statement or representation in conflict with the
392     disclosures required under this part.
393          Section 22. Section 31A-44-312 is enacted to read:

394          31A-44-312. Rescission of contract -- Required language.
395          (1) An individual who executes a continuing care contract with a provider may rescind
396     the contract at any time before the later of:
397          (a) midnight on the day seven days after the day on which the individual executes the
398     continuing care contract; or
399          (b) a time specified in the continuing care contract that is:
400          (i) after the day on which the continuing care contract is executed; or
401          (ii) after the day on which the individual receives a disclosure statement that meets the
402     requirements of this part.
403          (2) A provider may not require an individual who executes a continuing care contract
404     with the provider to move into a facility before the end of the rescission period described in
405     Subsection (1).
406          (3) If an individual rescinds a continuing care contract under this section, the provider
407     shall refund any money or property that the individual transferred to the provider, other than
408     periodic charges specified in the contract and applicable only to the period the individual
409     occupied a living unit, before 30 days after the day on which the individual rescinds the
410     contract.
411          (4) A continuing care contract shall include the following statement, or a substantially
412     equivalent statement, in type that is boldfaced, capitalized, underlined, or otherwise set out
413     from the surrounding written material so as to be conspicuous:
414          "You may cancel this contract at any time before midnight on the day seven days after
415     the day on which you sign the contract, or before a later day if specified in the contract that is
416     after the later of the day on which you sign the contract or you receive the facility's disclosure
417     statement. If you elect to cancel the contract, you are required to cancel the contract in writing,
418     and you are entitled to receive a refund of all assets transferred other than periodic charges
419     applicable to the time you occupied your living unit."
420          (5) In addition to Subsection (4), a continuing care contract shall include the following
421     statement in type that is boldfaced, capitalized, underlined, or otherwise set out from the

422     surrounding written material so as to be conspicuous:
423          "This document, if executed, constitutes a legal and binding contract between you and
424     __________ (Legal name of the continuing care provider). You may wish to consult a legal or
425     financial advisor before signing, although it is not required that you do so to make this contract
426     binding."
427          Section 23. Section 31A-44-313 is enacted to read:
428          31A-44-313. Cancellation of contract -- Death or incapacity before occupancy.
429          (1) A continuing care contract to provide continuing care in a living unit in a facility is
430     cancelled if the resident:
431          (a) dies before occupying a living unit in the facility; or
432          (b) is precluded under the terms of the contract from occupying a living unit in the
433     facility because of illness, injury, or incapacity.
434          (2) If a continuing care contract is cancelled under this section, the resident or the
435     resident's legal representative is entitled to a refund of all money or property transferred to the
436     provider, minus:
437          (a) any nonstandard costs specifically incurred by the provider or facility at the request
438     of the resident that are described in the contract or in an addendum to the contract signed by the
439     resident; and
440          (b) a reasonable service charge, if set out in the contract, that may not exceed the
441     greater of:
442          (i) $1,000; or
443          (ii) 2% of the entrance fee.
444          Section 24. Section 31A-44-314 is enacted to read:
445          31A-44-314. Disclosure statement fees.
446          A provider that files a disclosure statement under this chapter shall pay to the
447     department a fee established by the department in accordance with Section 63J-1-504.
448          Section 25. Section 31A-44-401 is enacted to read:
449     
Part 4. Operations


450          31A-44-401. Continuing care contract requirements -- No waiver.
451          (1) A continuing care contract shall:
452          (a) provide that the provider shall refund the portion of a resident's entrance fee that the
453     provider has agreed to refund, if any, no later than the earlier of:
454          (i) 30 days after the day on which the resident's living unit is occupied by a new
455     resident; or
456          (ii) one year after the day on which the resident ceases to occupy the resident's living
457     unit, unless the provider proves that the provider has made and is making a good faith effort to
458     find another resident for the living unit at the lowest entrance fee that is acceptable to the
459     resident ceasing to occupy the living unit;
460          (b) provide that the resident may terminate the continuing care contract upon giving
461     notice of termination:
462          (i) with or without cause; and
463          (ii) clearly stating what portion of the entrance fee the provider will refund and the date
464     by which the provider will make the refund; and
465          (c) provide that a continuing care contract is terminated by the resident's death and
466     clearly state:
467          (i) what portion of the entrance fee the provider will refund in the event of the
468     resident's death;
469          (ii) the date before which the provider will make the refund; and
470          (iii) to whom the provider will make the refund.
471          (2) A continuing care contract may permit involuntary dismissal of a resident from a
472     continuing care facility upon a reasonable determination by the provider that the resident's
473     health and well-being require termination of the continuing care contract.
474          (3) If a resident is dismissed under Subsection (2) and is in a condition of financial
475     hardship, as defined by the department by rule made in accordance with Title 63G, Chapter 3,
476     Utah Administrative Rulemaking Act, the provider shall refund the resident's entrance fee:
477          (a) in an amount provided in the continuing care contract; and

478          (b) before the earlier of:
479          (i) a time provided in the continuing care contract; and
480          (ii) 60 days after the day on which the provider dismisses the resident from the facility.
481          (4) A resident may not waive a provision of this chapter by agreement.
482          Section 26. Section 31A-44-402 is enacted to read:
483           31A-44-402. Actuarial reserve -- Department may require .
484          (1) The department may require a provider that the department determines has actuarial
485     liability under Section 31A-44-204 to create an additional reserve fund to offset the actuarial
486     liability.
487          (2) The department may require the additional reserve fund described in Subsection (1)
488     by rule made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
489          Section 27. Section 31A-44-403 is enacted to read:
490          31A-44-403. Resident advisory committee .
491          (1) A provider shall maintain, beginning no later than two years after the day on which
492     a facility is operational, a resident advisory committee for the facility that meets the
493     requirements of this section.
494          (2) A resident advisory committee shall:
495          (a) consist of no fewer than the lesser of five residents or all residents;
496          (b) meet no less than once per month; and
497          (c) discuss resident concerns and communications relevant to the provider or the
498     facility.
499          (3) A provider shall:
500          (a) meet with the resident advisory committee no fewer than three times per year; and
501          (b) distribute a provider disclosure statement to the resident advisory committee each
502     time the provider is required to renew the provider disclosure statement under Section
503     31A-44-301.
504          Section 28. Section 31A-44-404 is enacted to read:
505          31A-44-404. Nondisturbance of residents .

506          (1) A person may not directly or indirectly disturb the rights of a resident or third party
507     beneficiary under a continuing care contract and this chapter if the resident has substantially
508     performed the resident's obligations under the continuing care contract.
509          (2) If the person to whom a resident owes performance under the continuing care
510     contract is contested, and a court has not issued a temporary or permanent order resolving the
511     contest:
512          (a) the department may appoint a temporary receiver to receive the performance of the
513     resident; and
514          (b) a court may appoint a receiver upon petition by the department.
515          (3) A person that succeeds a provider in the provider's interest in a facility is bound by
516     every continuing care contract concerning the facility, including a continuing care contract that
517     provides for the return of entrance fees.
518          Section 29. Section 31A-44-405 is enacted to read:
519          31A-44-405. Continuing care facilities not exempt from property tax.
520          Notwithstanding any tax-exempt status of a provider or facility, a provider or facility is
521     liable for property tax due under Title 59, Chapter 2, Property Tax Act.
522          Section 30. Section 31A-44-501 is enacted to read:
523     
Part 5. Rehabilitation and Liquidation

524          31A-44-501. Application for court order for rehabilitation or liquidation .
525          (1) The department may request that the attorney general petition a district court in the
526     state, or a federal bankruptcy court that has exercised jurisdiction over a provider's facility, for
527     an order that appoints a trustee to rehabilitate or liquidate the facility if:
528          (a) the department determines that:
529          (i) the provider is financially unsound or is unable to meet the income or available cash
530     projections described in the provider's disclosure statement; and
531          (ii) the provider's ability to fully perform the provider's obligations under a continuing
532     care contract is endangered; or
533          (b) the provider is bankrupt, insolvent, or has filed for protection from creditors under

534     a federal or state reorganization, bankruptcy, or insolvency law.
535          (2) A court that evaluates a petition filed under Subsection (1) regarding a provider:
536          (a) shall evaluate the best interests of a person that has contracted with the provider;
537     and
538          (b) may require the proceeds of a lien imposed under Section 31A-44-601 to be used to
539     pay an entrance fee to another facility on behalf of a resident of the provider's facility.
540          Section 31. Section 31A-44-502 is enacted to read:
541          31A-44-502. Order to rehabilitate .
542          A court order to rehabilitate a facility under Section 31A-44-501 may direct a trustee to:
543          (1) take possession of the provider's property in order to conduct the provider's
544     business, including employing any manager or agent that the trustee considers necessary; and
545          (2) take action as directed by the court to eliminate the causes and conditions that made
546     rehabilitation necessary, which action may include:
547          (a) selling the facility through bankruptcy or receivership proceedings; and
548          (b) requiring a purchaser of the facility to honor any continuing care contract for the
549     facility.
550          Section 32. Section 31A-44-503 is enacted to read:
551          31A-44-503. Order to liquidate .
552          (1) If the trustee determines that further efforts to rehabilitate a provider's facility are
553     impractical or useless, the trustee may petition a court for liquidation of the facility.
554          (2) A court that issues an order to liquidate a facility under Subsection (1) shall appoint
555     a trustee to collect and liquidate all of the provider's assets located in this state.
556          (3) An individual may not enter into a continuing care contract at a facility after a court
557     enters an order to liquidate the facility.
558          Section 33. Section 31A-44-504 is enacted to read:
559          31A-44-504. Bond.
560          A court may refuse to make or vacate an order to rehabilitate a provider's facility under
561     this part if the provider posts a bond that is:

562          (1) in an amount that the court determines is equal to the reserve funding the provider
563     needs to fulfill the provider's obligations under all of the continuing care contracts for the
564     facility;
565          (2) issued by a recognized surety authorized to do business in the state; and
566          (3) executed in favor of the state on behalf of any individual entitled to an entrance fee
567     refund or other damages from the provider.
568          Section 34. Section 31A-44-505 is enacted to read:
569          31A-44-505. Termination of rehabilitation.
570          (1) A court may terminate a rehabilitation of a provider's facility and order the return of
571     the facility and the facility's assets to the provider if the court determines:
572          (a) the objectives of the order to rehabilitate the facility have been accomplished; and
573          (b) the facility may be returned to the provider without further jeopardy to the facility's
574     residents, creditors, or owners, or the public.
575          (2) A court may enter an order under this section after the court enters:
576          (a) a full report and accounting of the conduct of the facility's affairs during the
577     rehabilitation; and
578          (b) a report on the facility's financial condition.
579          Section 35. Section 31A-44-506 is enacted to read:
580          31A-44-506. Payment of trustee.
581          A trustee's reasonable costs, expenses, and fees are payable from a provider's or
582     facility's assets.
583          Section 36. Section 31A-44-601 is enacted to read:
584     
Part 6. Enforcement

585          31A-44-601. Lien held by the commissioner in favor of a resident or a group of
586     residents.
587          (1) To secure the obligations of the provider to a resident or a group of residents under
588     a continuing care contract, the commissioner holds a lien in favor of the resident or group of
589     residents that attaches on the day the notice described in Subsection (3) is recorded as provided

590     in Subsection (4).
591          (2) A lien described in Subsection (1) covers the real and personal property of the
592     provider.
593          (3) The provider shall prepare, for each county where the provider has an interest in
594     real or personal property, a written notice, sworn to by an officer of the provider, that contains:
595          (a) the name of the provider;
596          (b) a legal description of the provider's real or personal property; and
597          (c) a statement that the real or personal property is subject to this chapter and to the
598     lien imposed by this section.
599          (4) The provider shall record the notice described in Subsection (3) in the real property
600     records of each county where the provider has real property on or before the date the provider
601     first executes a continuing care contract for the facility.
602          (5) Except as provided in Subsection (6), the lien described in Subsection (1) is
603     subordinate to a lien on the property of the provider.
604          (6) The amount of a lien on the provider's property that is superior to a lien described
605     in Subsection (1) is limited to the portion of the funds secured by the lien that the provider uses
606     to:
607          (a) construct, acquire, replace, or improve a facility;
608          (b) refinance the portion of a loan used to construct, acquire, replace, or improve a
609     facility;
610          (c) pay, for a loan related to the facility, a reasonable loan fee, a loan expense, or loan
611     interest; or
612          (d) pay reasonable operating costs of the facility.
613          (7) If a lien on the property of the provider is superior to a lien described in Subsection
614     (1), a provider may only use an entrance fee to:
615          (a) reduce a debt secured by a superior lien;
616          (b) construct, acquire, replace, or improve a facility;
617          (c) fund reserves for the provider's actuarial debt under continuing care contracts for a

618     facility;
619          (d) refund an entrance fee of a resident of a facility;
620          (e) pay a facility resident's debt to the provider for a recurring fee due under the
621     resident's continuing care contract; or
622          (f) pay an amount for a purpose approved by the commissioner.
623          (8) The commissioner may judicially foreclose a lien described in Subsection (1) if
624     property subject to the lien is liquidated or the provider is insolvent or bankrupt.
625          (9) The commissioner shall use the proceeds from a lien foreclosed under Subsection
626     (8) to satisfy the provider's obligations under any continuing care contract in effect on the day
627     the commissioner forecloses the lien.
628          Section 37. Section 31A-44-602 is enacted to read:
629          31A-44-602. Enforcement by department -- Rulemaking.
630          (1) Subject to the requirements of Title 63G, Chapter 4, Administrative Procedures
631     Act, the department may:
632          (a) receive and act on a complaint about a provider or a facility;
633          (b) take action designed to obtain voluntary compliance by the provider with this
634     chapter;
635          (c) commence administrative or judicial proceedings on the commission's own in order
636     to enforce compliance by a provider with this chapter; or
637          (d) take action against a provider who fails to:
638          (i) respond to the department, in writing, before 30 business days after the day on
639     which the provider receives notice from the department of a complaint filed with the
640     department; or
641          (ii) submit information requested by the department.
642          (2) The department may:
643          (a) counsel an individual on the individual's rights or duties under this chapter;
644          (b) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
645     Rulemaking Act, to:

646          (i) restrict or prohibit practices by the provider that are misleading, unfair, or abusive;
647          (ii) promote or assure fair and full disclosure of the terms and conditions of continuing
648     care contracts, agreements, and communications between a resident and a provider;
649          (iii) promote or assure the ability of the public to compare continuing care contracts,
650     providers, and facilities; and
651          (iv) clearly disclose any financial risks related to a provider's facility to the facility's
652     residents;
653          (c) employ hearing examiners, clerks, and other employees and agents as necessary to
654     perform the department's duties under this chapter; and
655          (d) appoint a receiver for a provider.
656          Section 38. Section 31A-44-603 is enacted to read:
657          31A-44-603. Examinations.
658          (1) The department may conduct periodic on-site examinations of a provider.
659          (2) In conducting an examination, the department or the department's staff:
660          (a) shall have full and free access to all the provider's records; and
661          (b) may summon and qualify as a witness, under oath, and examine, any director,
662     officer, member, agent, or employee of the provider, and any other person, concerning the
663     condition and affairs of the provider or a facility.
664          (3) The provider shall pay the reasonable costs of an examination under this section.
665          (4) The department may conduct an on-site examination in conjunction with an
666     examination performed by a representative of an agency of another state.
667          (5) (a) The department, in lieu of an on-site examination, may accept the examination
668     report of an agency of another state that has regulatory oversight of the provider, or a report
669     prepared by an independent accounting firm.
670          (b) A report accepted under Subsection (5)(a) is considered for all purposes an official
671     report of the department.
672          (6) Upon reasonable cause, the department may conduct an on-site examination of an
673     unlicensed person to determine whether a violation of this chapter has occurred.

674          Section 39. Section 31A-44-604 is enacted to read:
675          31A-44-604. Criminal and civil penalties.
676          (1) A person who knowingly violates this chapter or files materially false information
677     with a registration application or renewal under this chapter is:
678          (a) guilty of a class B misdemeanor; and
679          (b) subject to revocation of the person's registration under this chapter.
680          (2) Subject to Title 63G, Chapter 4, Administrative Procedures Act, if the department
681     determines that a person is engaging in the business of being a continuing care provider in
682     violation of this chapter, the department may:
683          (a) suspend, revoke, or refuse to renew the person's registration under this chapter;
684          (b) issue a cease and desist order from committing any further violation;
685          (c) prohibit the person from continuing to engage in the business of being a continuing
686     care provider;
687          (d) impose an administrative fine not greater than $1,000 per violation, except that the
688     aggregate total of fines imposed under this chapter against a person in a calendar year may not
689     exceed $30,000 for that calendar year; or
690          (e) take any combination of actions listed under this Subsection (2).
691          (3) If the department revokes a registration, the department is not required to refund
692     any portion of the provider's filing or renewal fee for the remainder of the period for which the
693     fee is paid.
694          Section 40. Section 31A-44-605 is enacted to read:
695          31A-44-605. Civil liability.
696          (1) A provider who enters into a continuing care contract with an individual without
697     complying with the disclosure statement requirement described in this chapter, or who makes a
698     continuing care contract with an individual who relies on a disclosure statement that omits a
699     material fact, is liable to the individual for:
700          (a) actual damages;
701          (b) repayment of all fees the individual paid to the provider, minus the reasonable

702     value of care and lodging provided to the individual before the violation, misstatement, or
703     omission was discovered or reasonably should have been discovered;
704          (c) interest at the legal rate for judgments;
705          (d) court costs; and
706          (e) reasonable attorney fees.
707          (2) A provider is liable under this section regardless of whether the provider had actual
708     knowledge of the misstatement or omission.
709          (3) An individual may not file or maintain an action under this section if:
710          (a) the individual, before filing the action, receives a written offer from the provider for
711     refund of all amounts paid to the provider or the provider's facility plus reasonable interest
712     from the date of payment, minus the reasonable value of care and lodging provided before the
713     receipt of the offer;
714          (b) the offer includes a description of the provisions of this section; and
715          (c) the recipient of the offer fails to accept the offer within 30 days after the date the
716     offer is received.
717          (4) An individual shall bring an action under this section before the day three years
718     after:
719          (a) the day on which the individual enters into the continuing care contract; or
720          (b) the individual discovers, or reasonably should have discovered, the provider's
721     violation, misstatement, or omission.
722          (5) A person does not have a cause of action under this chapter except as expressly
723     provided by this chapter.
724          (6) This chapter does not limit the liability that exists under any other statute or
725     common law.
726          (7) The provisions of this chapter are not exclusive and the remedies provided by this
727     chapter are in addition to any other remedies provided by any other law.