Subject 120-2-51 CONTINUING CARE PROVIDERS AND FACILITIES
The purpose of this Regulation is to implement the provisions of Chapter 45 of Title 33 of the Official Code of Georgia Annotated. This Regulation governs the issuance and renewal of Certificates of Authority, the minimum provisions required in escrow agreements, and specific provisions related to resident owned living units.
As used in this Regulation, the term:
|(1)|| "Continuing care" means furnishing
pursuant to a continuing care agreement:
|(2)||"Continuing care agreement" means a contract or agreement to provide continuing care, continuing care at home, or limited continuing care. Continuing care agreements include agreements to provide care for any duration, including agreements that are terminable by either party.|
|(2.1)||"Continuing care at home" means the furnishing of services pursuant to a continuing care agreement at a location other than at a facility and which includes the obligation to provide nursing care, assisted living care, or personal care home services. A continuing care at home agreement may, but is not required to, include an obligation to provide food.|
|(3)||"Entrance fee" means an initial or deferred payment of a sum of money or property made as full or partial payment to assure the resident continuing care, limited continuing care, or continuing care upon the purchase of a resident owned living unit; provided, however, that any such initial or deferred payment which is greater than or equal to 12 times the monthly care fee shall be presumed to be an entrance fee so long as such payment is intended to be a full or partial payment to assure the resident lodging in a residential unit. An accommodation fee, admission fee, or other fee of similar form and application greater than or equal to 12 times the monthly care fee shall be considered to be an entrance fee. Such term shall not include any portion of the purchase or sale of a resident owned living unit, including, but not limited to, any down payment or earnest money payment for the purchase and sale of a resident owned living unit.|
|(4)||"Facility" means a place which is owned or operated by a provider and provides continuing care or limited continuing care. Such term includes a facility which contains resident owned living units.|
|(5)||"Licensed" means that the provider has obtained a Certificate of Authority from the Department.|
|(6)|| "Limited continuing
care" means furnishing pursuant to a continuing care agreement:
|(7)||"Monthly care fee" means the fee charged to a resident for continuing care or limited continuing care on a monthly or periodic basis. Monthly care fees may be increased by the provider to provide care to the resident as outlined in the continuing care agreement. Periodic fee payments or other prepayments shall not be monthly care fees.|
|(8)||"Nursing care" means services which are provided to residents of skilled nursing facilities or intermediate care facilities.|
|(9)||"Personal services" means, but is not limited to, such services as individual assistance with eating, bathing, grooming, dressing, ambulation, and housekeeping; supervision of self-administered medication; arrangement for or provision of social and leisure services; arrangement for appropriate medical, dental, nursing, or mental health services; and other similar services which the department may define. Personal services may be provided at a facility or at a home on or off site of a facility. Personal services shall not be construed to mean the provision of medical, nursing, dental, or mental health services. Personal services provided, if any, shall be designated in the continuing care agreement.|
|(10)||"Provider" means the owner or operator, whether a natural person, partnership, or other unincorporated association, however organized, trust, or corporation, of an institution, building, residence, or other place, whether operated for profit or not, which owner or operator undertakes to provide continuing care, limited continuing care, or continuing care at home for a fixed or variable fee, or for any other remuneration of any type for the period of care, payable in a lump sum or lump sum and monthly maintenance charges or in installments.|
|(11)||"Resident" means a purchaser of or a nominee of or a subscriber to a continuing care agreement. Such an agreement may permit a resident to live at a home on or off site of a facility but shall not be construed to give the resident a part ownership of the facility in which the resident is to reside unless expressly provided for in the agreement.|
|(12)||"Resident owned living unit" means a residence or apartment, the purchase or sale of which is not included in an entrance fee, which is a component part of a facility and in which the resident has an individual real property ownership interest.|
|(13)||"Residential unit" means a residence or apartment in which a resident lives that is not a skilled nursing facility as defined in O.C.G.A. Section 31-6-2(34), an intermediate care facility as defined in O.C.G.A. Section 31-6-2(22), an assisted living community as defined in O.C.G.A. Section 31-7-12.2, or a personal care home as defined in O.C.G.A. Section 31-7-12.|
|(14)||Unless the context otherwise requires, terms found in this Regulation shall be used as defined in O.C.G.A. Sections 33-1-2 and 33-45-1et seq. Other terminology shall be used in accordance with the Georgia Insurance Code or industry usage, if not otherwise defined in the Georgia Insurance Code.|
|(1)||No person may engage in the business of providing continuing care, limited continuing care, continuing care at home, issue continuing care agreements in Georgia, or hold oneself out to the public as a provider without first obtaining a valid certificate of authority issued by the Commissioner of Insurance.|
|(2)|| Each applicant shall file with the
Commissioner an application for a certificate of authority upon a form to be
furnished by the Commissioner, which will be available on the Georgia Insurance
Department's website. Such application shall include or have attached the
following information and documents:
|(3)|| Upon issuance, a license
pursuant to this Regulation is valid until June 1, and is to be renewed
annually on or before May 31 of the first year issued, and each year
thereafter, on a form to be prescribed by the Commissioner. This form will be
available on the Georgia Insurance Department's website prior to May 31 each
year. Failure to file a renewal application, and any required documents or
information, on or before May 31 will result in the non-continuance of the
license. Licensees that fail to renew their licenses in a timely manner and
that desire to be relicensed will be required to reapply. Along with the
renewal application, each licensed provider shall file the following with the
|(4)||Should a licensed provider revise or amend any agreements submitted pursuant to Regulation 120-2-51-.04(2)(g), such revisions or amendments must be submitted to the Department for approval prior to being used by the provider.|
|(1)|| Any portion of the entrance fee paid by a
resident or prospective resident to the provider shall be held in an escrow
account which shall be governed by an escrow agreement, unless the provisions
set forth in O.C.G.A. Section
regarding the release of escrow funds have been met at the time the entrance
fee for a resident owned living unit is paid by the resident to the provider.
If an escrow agreement is required, such agreement shall include in writing at
least the following minimum provisions:
In addition to the required minimum provisions to be included in an escrow
agreement pursuant to Regulation 120-2-51-.05(1), as set forth above, the
following documents must be attached as exhibits to such escrow agreement:
|(1)|| Continuing Care Agreements
|(2)|| Funds or Property for Purchase and Sale
Funds or property transferred for the purchase and sale of a resident owned living unit shall not be considered to be funds or property transferred for the care of a resident and, therefore, shall not be subject to the requirements set forth in OCGA 33-45-7(a)(6). Such funds or property shall be governed by applicable real property law related to the purchase and sale of resident owned living units.
Funds payable to a duly licensed real estate broker as commissions related to the purchase and sale of the real property interest in a resident owned living unit shall not be considered to be a fee charged by the provider for the transfer of membership or sale of an ownership right.
|(4)|| Reporting and Disclosure
When reporting or disclosure of any information is required under any other body of law governing the purchase and sale of resident owned living units, including, but not limited to, real property law or condominium law, all documents required for such reporting and disclosure shall be made available to the Department of Insurance immediately upon request.
Any provider, or any agent, counselor, representative, officer, or employee of such provider, failing to comply with the requirements of this Regulation shall be subject to such penalties as may be appropriate under the insurance laws of this State.
If any provision of this Regulation or the application of it to any person or circumstance is held invalid, such invalidity shall not affect the provisions or applications of the rules herein which can be given effect without the invalid portion. To that end, the provisions of this Regulation are declared to be severable.