Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a)
The process established and maintained by a program administrator to promote
and evaluate the compliance of a PACE solicitor and PACE solicitor agent with
the requirements of applicable law shall be in writing and shall comply with
the requirements of this section.
(b) The process shall include a risk-based,
commercially reasonable procedure to monitor and test the compliance of PACE
solicitors and PACE solicitor agents with the requirements of Financial Code
section
22689,
subdivision (a).
(1) A risk-based,
commercially reasonable procedure shall include different processes for
monitoring or testing compliance that are designed to identify potential areas
where the solicitation activities of PACE solicitors and PACE solicitor agents
are not in compliance with applicable law. If a program administrator relies on
samples of data that are intended to identify noncompliance, the program
administrator shall have a reasonable basis for determining the adequacy of the
sample size. The sample size shall include vulnerable populations such as
seniors, non-English speakers, and low-income populations, where applicable.
Nothing in this section restricts the monitoring or testing of compliance
through sampling unless expressly stated.
(2) The following are examples of
commercially reasonable processes for monitoring and testing whether a PACE
solicitor or a PACE solicitor agent soliciting property owners is in compliance
with the law. The list is not exhaustive, and a program administrator may
establish and implement other or additional methods to identify noncompliance.
(A) A program administrator may monitor and
test the compliance of PACE solicitors and PACE solicitor agents by posing
questions to property owners during the oral confirmation of key terms required
under Streets and Highways Code section
5913
or at any other time.
(B) A program
administrator may monitor and test the compliance of PACE solicitors and PACE
solicitor agents by conducting a confirmation of completion call to property
owners.
(C) A program administrator
may monitor and test the compliance of a PACE solicitor and PACE solicitor
agent through an analysis of the complaints received by the program
administrator.
(c) The program administrator shall monitor
and test whether a PACE solicitor is maintaining the minimum qualifications
required under subdivision (e) of Financial Code section
22680 for
enrollment as a PACE solicitor.
(1) For
purposes of monitoring and testing whether consumer complaints against a PACE
solicitor evidence a clear pattern of consumer complaints about the PACE
solicitor regarding dishonesty, misrepresentations, or omissions, the program
administrator shall track and review the complaints containing allegations of
this conduct. Notwithstanding the ability to monitor and test for compliance
through sampling, a program administrator shall track all complaints that
allege dishonesty, misrepresentations, or omissions.
(A) In considering evidence of a clear
pattern, the program administrator may consider the volume of complaints
relative to the size of the PACE solicitor, the egregiousness of the alleged
conduct, the PACE solicitor's response to the allegations, and the PACE
solicitor's subsequent resolution of the complaints.
(2) For purposes of identifying whether a
PACE solicitor's conduct presents a high likelihood that the PACE solicitor
will solicit assessment contracts in a manner that does not comply with
applicable law, the monitoring and testing shall be designed to identify the
following:
(A) Whether the PACE solicitor has
made any untrue statements to the program administrator or to a property
owner.
(B) Whether the PACE
solicitor has advised or knowingly permitted a property owner to make any
untrue statements to the program administrator.
(D) Whether PACE solicitor has had its
license revoked by the Contractors State License Board or has a complaint on
file with the registrar that is available to the public on the website of the
Contractors State License Board pursuant to Business and Professions Code
section
7124.6.
(E) Whether the PACE solicitor has a
disciplinary action against it by another regulatory agency for fraud,
misrepresentation, or deceit.
(F)
Whether the PACE solicitor has engaged in elder or dependent adult financial
abuse as defined in Welfare and Institutions Code section
15610.30.
(3) For purposes of monitoring and testing
whether a PACE solicitor has a clear pattern of failing to timely receive and
respond to property owner complaints regarding the PACE solicitor, a clear
pattern may be established by actions by a PACE solicitor such as failing to
record multiple complaints; failing to respond to multiple complainants over a
sustained period of time; or unreasonably delaying the response to, or
investigation of, multiple complaints.
(d) The program administrator shall have
risk-based, commercially reasonable processes to monitor and test a PACE
solicitor's compliance with the following.
(1) Whether a PACE solicitor may be providing
a different price for a project financed by a PACE assessment than the
solicitor would provide if paid in cash by the property owner. A program
administrator may use commercially available cost guides for
guidance.
(2) Whether the PACE
solicitor is commencing work prior to the expiration of the right to cancel
period.
(e) The process
to promote and evaluate the compliance of PACE solicitors and PACE solicitor
agents with the requirements of applicable law shall include a procedure to
regularly monitor the license or registration status of PACE solicitors and
PACE solicitor agents as provided in Financial Code section
22680,
paragraph (f)(2).
(1) The regular monitoring
of the license or registration status of a PACE solicitor or PACE solicitor
agent does not require continuous monitoring.
(2) Except as provided in paragraph (3), a
program administrator shall confirm the licensure or registration status of a
PACE solicitor or PACE solicitor agent remains in good standing at the
following times:
(A) When a PACE solicitor or
PACE solicitor agent submits a property owner's application for an assessment
contract to the program administrator.
(B) When a program administrator processes a
complaint about a PACE solicitor or PACE solicitor agent.
(C) When a program administrator enrolls a
PACE solicitor or PACE solicitor agent.
(3) A program administrator that has a
process for routinely monitoring the licensure or registration status of a PACE
solicitor or PACE solicitor agent remains in good standing not less than once
every quarter need not confirm licensure or registration status in the
circumstances described in subparagraphs (e)(2)(A) and (B).
(4) The procedure for monitoring the
registration status of PACE solicitor agents shall include a process to confirm
whether the individuals employed or retained by the PACE solicitor to solicit a
property owner to enter into an assessment contract are enrolled by the program
administrator as PACE solicitor agents, have complied with the requirements of
the training program, and are reported to the Department.
(f) For purposes of promoting and evaluating
the compliance of PACE solicitors and PACE solicitor agents with the
requirements of applicable law, the actions of a PACE solicitor agent are
attributable to the PACE solicitor employing or retaining the PACE solicitor
unless the PACE solicitor did not know and reasonably should not have known of
the conduct of the PACE solicitor agent, the conduct giving rise to the
complaint was not within the scope of the agency relationship with the PACE
solicitor, and upon receiving notice of the unauthorized conduct the PACE
solicitor took affirmative steps to remedy the harm caused by the conduct, and
if warranted by the conduct, the PACE solicitor took timely steps to
discontinue the engagement of the PACE solicitor agent in that
capacity.
(g) A program
administrator shall maintain in its books and records the written process
required by this section and documentation that the monitoring and testing
required by this section is ongoing.
1. New
section filed 8-5-2021; operative 10-1-2021 (Register 2021, No. 32).
Transmission deadline specified in Government Code section
11346.4(b)
extended 60 calendar days pursuant to Executive Order N-40-20 and an additional
60 calendar days pursuant to Executive Order N-71-20. Filing deadline specified
in Government Code section
11349.3(a)
extended 60 calendar days pursuant to Executive Order N-40-20 and an additional
60 calendar days pursuant to Executive Order
N-71-20.
Note: Authority cited: Section
22150,
Financial Code. Reference: Sections
22680 and
22689,
Financial Code.
