Current through Register Vol. 48, No. 3, March 22, 2024
A. License Applications.
(1) In addition to the requirements in
Section
37-11-30(B),
an application for a CCRC license must contain at least the following
information:
(a) a feasibility study prepared
in accordance with generally accepted accounting principles;
(b) a statement of all fees required of
residents, including, but not limited to, a statement of the entrance fee
charged, the monthly service charges, the proposed application of the proceeds
of the entrance fee by the operator, and the plan by which the amount of the
entrance fee is determined if the entrance fee is not the same in all
cases;
(c) a resident's guide,
policy manual, or other material of similar application, whether current or
proposed;
(d) a copy of an
agreement with the providers for the provision of medical care, health care, or
other health-related services;
(e)
a list of all necessary permits, licenses and certificates received or applied
for, and their status at the time the application is submitted to the
department;
(f) a copy of the
procedure for reviewing and handling residents' complaints; and
(g) such other reasonable data as the
department may require with respect to the operator or the facility.
(2) The application for a license
shall be accompanied by a license fee of Two Thousand Dollars.
B. All licenses; form and content;
renewal licenses.
(1) Each license issued to
a licensee must state the name and address of the facility and must state fully
the name of the licensee, date of issuance, and date of expiration. The license
must be posted prominently in the facility.
(2) All licenses expire on August
thirty-first of each year.
(3) All
licenses must be renewed by filing a renewal application with the department at
least thirty days before the expiration of the license. A complete renewal
application shall contain the information the department requires in order to
determine the existence and effect of any material change from the information
contained in the applicant's original application, annual reports, or previous
renewal application. Each renewal application must be accompanied by a
nonrefundable license fee of Two Thousand Dollars.
C. Occurrences triggering updates.
Regardless of the information filed with the annual license
renewal application, each operator shall notify the department and file
pertinent documents within ten business days after the occurrence of any of the
following events:
(1) Any
investigation, litigation, orders, judgments, or decrees which affect the
facility, operator and/or owner, including, but not limited to, a bankruptcy,
foreclosure, or receivership proceeding;
(2) Any proceeding for denial, suspension or
revocation of any license or permit needed to operate the facility;
(3) Any proposed changes in the continuing
care contract;
(4) Any proposed
changes to the disclosure statement;
(5) Any proposed expansion or closure of the
facility, including, but not limited to, the closing of a wing or building of
the facility;
(6) Any proposed
transfer of ownership of the facility;
(7) Any proposed change in the control of the
operator;
(8) Any change of the
administrator of the facility;
(9)
Any change in the facility's contract(s) with the provider of medical or other
health-related services.
D. Multiple Facilities.
(1) If the operator provides or intends to
provide continuing care at more than one facility, the operator must obtain an
appropriate separate license for each such facility. Funds collected by one
facility should not be expended for the benefit of any other facility. Where
there are multi-facility operations, entrance fees collected for service at a
particular facility shall be managed appropriately to safeguard the financial
interest of the resident who paid the fee for facilities and services at that
particular community.
(2) An entity
which operates several facilities on different locations under one corporate
structure where all monies from and disbursements to such locations are
channeled through the corporate headquarters and where only one central system
of accounting is maintained for all the locations may in its license
application submit only one financial statement on behalf of all locations it
operates. Disbursements to individual locations will not be deemed
cross-collateralization, provided, however, that continuance of such practice
will not adversely affect financial soundness of any location operated by the
corporation.
E.
Advertising; general standards.
All advertising which is used by or on behalf of the operator to
promote a continuing care retirement community shall be accurate, truthful and
not misleading so as to fully inform the public and foster their understanding
and trust. In preparing any advertising material, the operator is subject to
state unfair and deceptive trade practices laws.
F. Continuing care contracts.
(1) Continuing care contracts must be printed
in one hundred percent black ink with the exception of the operator's name and
business logo. The contracts must be printed on stock that is at least 11
inches high and 7 1/4 inches wide. All print in continuing care contracts shall
be in print no smaller than ten point type.
(2) Continuing care contracts shall be
written in language customarily used and understood by people in the conduct of
their personal affairs.
(3) The
continuing care contract must contain:
(a) a
right to cancel provision in the following language which must be bold face
type:
RESIDENT'S RIGHT TO CANCEL
You may cancel this contract by sending notice of your wish to
cancel to the continuing care community (community) before midnight of the
thirtieth (30th) day after you sign a contract. This notice must be sent in
writing to the following: (Insert business name and address). If you cancel
within thirty days, all money or property paid or transferred by you must be
refunded fully, less those reasonable costs incurred by the community. If the
living unit was available for occupancy, the community may charge a daily rate
based on the usual monthly charge for that unit beginning on the eighth (8th)
day after signing and ending on the day notice of cancellation is given to the
community. Within thirty days of receipt of the cancellation notice, the
community must return any payments made and return any note or evidence of
indebtedness.
(b) a
statement in bold face type of what portion, if any, of the entrance fee is
refundable or non-refundable.
(c)
in capital letters, in bold face type no smaller than the largest type used in
the contract the following statement:
A license issued by the South Carolina Department of Consumer
Affairs is not an endorsement or guarantee of this facility by the State of
South Carolina. The South Carolina Department of Consumer Affairs urges you to
consult with an attorney and a suitable financial advisor before signing any
documents.
(4)
No act, agreement or statement of a resident or an individual purchasing care
for a resident under any agreement to furnish care to the resident shall
constitute a valid waiver of any provision of the Act and this regulation
intended for the benefit or protection of the resident or the individual
purchasing care for the resident.
G. Disclosure Statement.
(1) The disclosure statement must contain at
least the following information:
(a) Items
specified in Section
37-11-30(B)(1),
(4), (5), (6), (7), (8), (10), (11), (12), and
(13);
(b) The name and position title of the
individual to whom inquiries should be directed regarding facilities, services,
or other information;
(c) A
statement that the facility will make available upon request the names and
business addresses of the officers, directors, trustees, managing or general
partners, any person having a five percent or greater equity or beneficial
interest in the continuing care retirement community, and any person who will
be managing the community on a day-to-day basis;
(d) The services provided or proposed to be
provided pursuant to contracts for continuing care at the facility, including
the extent to which medical care is furnished; a clear statement of which
services are included for monthly basic fees for continuing care and which
services are made available at or by the facility at extra charge;
(e) If the facility is already in operation,
a statement as to which services may be available subject to a waiting list or
priority rights of other residents, as well as the best estimate of the average
waiting period for such services.
(f) The current and estimated number of the
residents of the facility to be provided services by the operator pursuant to
the contract for continuing care;
(g) A copy of the complaint system and
procedures;
(h) A statement as to
whether or not the facility, or any component thereof, accepts Medicare and/or
Medicaid. In case the facility does not accept Medicare and/or Medicaid, the
following statement will be inserted in bold face type in the disclosure
statement:
This facility does not accept Medicare and/or Medicaid. In case a
resident exhausts his available financial resources prior to or following
admission into our nursing home or assisted living accommodations, the resident
might have no choice but to apply for admission to a facility that accepts
these payments.
A facility which has a discretionary fund to assist residents who
deplete their financial resources, the following language will also be inserted
in bold face type in the disclosure statement:
The discretionary funds available to the management may be used
to supplement the entire cost of care or a part of it. However, the application
of these funds is entirely within the discretion of the management and the
presence of these funds is no guarantee for a continuing stay in this facility
following the depletion of your own financial resources.
(i) A conspicuous statement that in addition
to the information contained in the disclosure statement, a prospective or
current resident or prospective or current resident's legal representative with
a general power of attorney has a right to ask for and receive the information
regarding reserve funding of the facility, if any, experience of persons who
will make investment decisions, certified financial statements of the operator
including balance sheets and income statements, a current actuarial study, if
available, a feasibility study for a facility that has not begun operations,
and the names and business addresses of persons having a five percent or
greater interest in the facility.
H. Expansions of existing facilities.
(1) An existing operator which intends to
expand a continuing care retirement community by more than twelve units or
twenty-five percent of individual living units, whichever is more, shall file
with the department a letter of intent disclosing the plan of the expansion.
The letter shall disclose the following:
(a)
The purpose and scope of the expansion;
(b) Estimated capital cost;
(c) Ability to finance;
(d) Financial impact on current
residents;
(e) Impact on current
community structure to provide resident services;
(f) Present occupancy rate and marketability
of the expansion;
(g) If the
facility has had a feasibility study made, then its operator shall submit, in
addition to the letter of intent, a supplement to that feasibility study. If
the facility did not have a feasibility study made in the past, then the
operator shall submit, in addition to the letter of intent, a substitute
study.
(2) In order to
prevent avoidance of subsection (1) above, the exemption may not exceed a
twenty-five percent increase in individual living units cumulative over a two
year period.
I. Transfer
of ownership of a facility.
(1) An operator
intending to undertake a transfer of ownership of a facility shall notify the
department at least thirty days in advance of the proposed settlement
date.
(2) A notice of intention of
transfer of ownership of a facility may be in the form of a letter, addressed
to the department, and shall contain the following information:
(a) Name and address of the licensed operator
from whom ownership will be transferred;
(b) Name and address of the person intending
to acquire the ownership interest;
(c) Name and address of the facility whose
ownership is being transferred;
(d)
Proposed settlement date.
(3) No transfer of ownership of a facility
shall be consummated until the person to whom ownership is being transferred
obtains a license from the department.
(4) When a person to whom ownership is being
transferred files an application for a license, in addition to the selected
information as will be specified on a form available from the department, the
person shall file a statement containing the following information:
(a) The terms and conditions of the transfer
of ownership;
(b) The source of
funds to be used to finance transfer of ownership and, if the funds are to be
borrowed, the name of a lender and a summary of the terms and conditions of the
loan transactions;
(c) The plans,
arrangements, understandings and intentions of the transferee for the future
business and management of the facility, including plans as to the sale of
assets or material change in business, corporate structure or
management.
(5) A
license will not be issued under this Section unless the transferee has agreed
in writing to assume the contractual obligations imposed on the current
operator by its existing continuing care agreements. Any person aggrieved by
the determination of the department shall be entitled to a contested case
hearing before the Administrative Law Court in accordance with the provisions
of the Administrative Procedures Act.
J. Entrance fees; escrow provisions.
(1) An escrow agreement entered into between
a trust institution and an operator shall state that its purpose is to protect
the resident or the prospective resident; and, upon presentation of evidence of
compliance with applicable portions of the Act and this regulation, or upon
order of a court of competent jurisdiction, the escrow agent shall release and
pay over the funds, or portions thereof, together with any interest accrued
thereon or earned from investment of the funds, to the operator or resident as
directed. At the time of entering into an escrow agreement, an operator shall
inform an escrow agent of the Act and this regulation and the respective
requirements of each.
(2) All funds
deposited in an escrow account shall not be subject to any liens or charges by
the escrow agent or judgments, garnishments, or creditor's claims against the
operator or facility.
(3) When
funds are received from a resident or prospective resident, the operator shall
deliver to the resident a written receipt. The receipt shall show the payor's
name and address, the date, the price of the continuing care contract, and the
amount of money paid.
(4) In
applying the provision of Section
37-11-90(C)
relating to the reasonable time in which the operator must meet the
requirements for release of funds held in the escrow account, escrow agents
shall not consider such reasonable time to exceed thirty months from the date
the entrance fee or any portion thereof was first deposited in the escrow
account, unless the extension is requested from and granted by the department
for good cause shown.
K.
Dismissal or discharge of resident; refund.
(1) No continuing care contract which
requires payment of an entrance fee or other fee in return for a promise of
future care or which provides for services for the life of the person or for
more than one year (including mutually terminable contracts) shall permit
dismissal or discharge of the resident from the facility providing care before
the expiration of the agreement without just cause for such removal. The term
"just cause" includes, but is not limited to, a good faith determination in
writing, signed by the medical director and/or the administrator of the
facility, that a resident is a danger to himself or others while remaining in
the facility. The written determination shall state:
(a) That the determination is made in good
faith;
(b) The reasons supporting
the determination that the resident is a danger to himself/herself or
others;
(c) The basis for the
conclusion that there is no less restrictive alternative to dismissal,
discharge or cancellation, as the case may be, for abating the dangerousness of
the resident.
(2) If a
facility dismisses a resident for just cause, the resident shall be entitled to
a refund of his unearned entrance fee, to the extent the continuing care
contract between the parties so provides.
L. Inspections; Investigations.
(1) The department may conduct inspections or
investigations as necessary to enforce the State Continuing Care Retirement
Community Act, the accompanying regulations, or an order of the Administrator
or the Administrative Law Court related to these provisions. Any operator being
examined shall, upon request, give reasonable and timely access to all of its
records. The representative of the department may at any time examine the
records and affairs and inspect the physical property of any operator and the
health care and health-related services provider with whom the operator has
contracts, agreements, or other arrangements, whether in connection with a
formal examination or not.
(2) Any
duly authorized officer, employee, or agent of the department may, upon
presentation of proper identification, have access to, and inspect and copy any
records, with or without advance notice, to secure compliance with, or to
prevent a violation of, any provision of the Act and this regulation.
(3) Reports of the results of such
examinations shall be kept on file by the department. Any records, reports, or
documents obtained by the department which by state or federal law or
regulation are deemed confidential may not be distributed to the public by the
department unless required under appropriate court order or until such
confidential status has expired.
(4) The department shall notify the operator
in writing of all deficiencies in its compliance with the provisions of the Act
and this regulation and shall set a reasonable length of time for compliance by
the facility. In addition, the department may require corrective action or
request a corrective action plan.
M. Complaint system to be established.
(1) Each facility's complaint system shall,
at a minimum, provide residents with the following:
(a) The name of the staff person or persons
authorized to receive written complaints from residents;
(b) An opportunity to discuss the substance
of the complaint with the designated staff person;
(c) The time period in which the operator
shall make a written response to the complaint;
(d) A statement that the operator shall not
engage in any retaliatory action against the complainant;
(e) A statement that if the resident is not
satisfied with the operator's response, the resident may file a complaint with
the South Carolina Department of Consumer Affairs. The agency's current
toll-free telephone number and website must be included.
(2) Copies of the complaint system shall be
distributed to residents and conspicuously posted at a common area of the
facility.
N.
Department's response to written complaints.
(1) Upon receipt of a written complaint, the
department shall make a preliminary review; and unless the department
determines that the complaint is without any reasonable basis, the department
shall take appropriate action.
(2)
No licensed operator may discriminate or retaliate in any manner against a
resident of a facility providing care because such resident has initiated a
written complaint pursuant to this Section.
O. Financial review committee.
At such time as the Administrator determines that a facility
cannot fully perform its obligations under continuing care contracts, the
Administrator may appoint a financial review committee. Such committee may
include persons knowledgeable in the field of continuing care, certified public
accountants, members of the financial community, and others as may be deemed
appropriate by the Administrator. The members of the committee shall advise the
Administrator regarding the merits of the facility's corrective plan
proposal.
P. Severability.
If any provision of this regulation or the application thereof to
any person, facility or circumstances is held to be invalid, the invalidity
shall not affect other provisions or application of this regulation, and to
this end the provisions of this regulation are
severable.
Statutory Authority: 1976 Code Sections
37-11-10
et seq.
