(a)
Any provider offering a refundable contract, or other entity assuming responsibility for refundable contracts, shall maintain a refund reserve fund in trust for the residents. This trust fund shall remain intact to accumulate interest earnings resulting from
investments of liquid reserves in accordance with paragraph (1) of subdivision (e) and subparagraphs (A) through (E), inclusive, of paragraph (3) of subdivision (e) of Section 1792.2. The amount of the refund reserve shall be revised annually by the provider and submitted to the department in conjunction with the annual report required by Section 1790.
(b)
Any providers or other entity assuming responsibility for refundable contracts, which has not executed refundable contracts in a continuing care retirement community prior to January 1, 1996, and proposes to execute these contracts in that continuing care retirement community after that date, shall maintain a refund reserve fund in trust for the residents holding such contracts.
(1)
Except as noted in paragraph (2), this trust fund shall remain intact as specified in subdivision (a).
(2)
To the extent approved by the department, the trust account may invest up to 70 percent of the refund reserves in real estate that is used to provide care and housing for the holders of the refundable continuing care contracts and is located on the same campus where these continuing care contract holders reside.
These investments in real estate shall be limited to 50 percent of the providers’ net equity in the real estate. The net equity shall be the book value, assessed value, or current appraised value within 12 months prior to the end of the fiscal year, less any depreciation, encumbrances, and the amount required for statutory reserves under Section 1792.2, all according to audited financial statements acceptable to the department. This paragraph shall apply to applications, and for those phases of the project that were identified as part of applications, submitted after May 31, 1995.
(3)
Any provider who submitted an application on or before May 31, 1995, may provide for the refund obligation of this section with a trust account that invests up to 85 percent of the refund reserves in the continuing care retirement community’s real estate and the remaining 15 percent in the form of either cash or an unconditional, irrevocable letter of credit to be phased in over a two-year period beginning with initial occupancy in the facility.
(4)
Each refund reserve trust fund shall be established at an institution qualified to be an escrow agent pursuant to an agreement between the provider and the institution based on this section and approved in advance by the department.
(5)
The amount to be held in the reserve fund shall be the total of the amounts calculated with respect to each individual resident as
follows:
(A)
Determine the age in years and the portion of the entry fee for the resident refundable for the seventh year of residency and thereafter.
(B)
Determine life expectancy of that individual from the life expectancy table in paragraph (1) of subdivision (b) of Section 1792.2. If there is a couple, use the life expectancy for the individual with the longer life expectancy.
(C)
For that resident, use an interest rate of 6 percent or lower to determine from compound interest tables the factor which represents the amount required today to grow at compound interest to one dollar ($1) at the end of the period of the life expectancy of the resident.
(D)
Multiply the refundable portion of the resident’s entry fee amount by the factor obtained in
subparagraph (C) to determine the amount of reserve required to be maintained.
(E)
The sum of these amounts with respect to each resident shall constitute the reserve for refundable contracts.
(F)
The reserve for refundable contracts will be revised annually as provided for in subdivision (a), using the interest rate, refund obligation amount, and individual life expectancies current at that time.
(6)
Withdrawals may be made from the trust fund to pay refunds when due under the terms of the refundable entry fee contracts and when the balance in the trust fund exceeds the required refund reserve amount determined in accordance with paragraph (5) of subdivision (b).
(7)
Deposits shall be made to the trust fund with respect to new residents when the entry
fee is received and in the amount determined with respect to that resident in accordance with paragraph (5) of subdivision (b).
(8)
Additional deposits shall be made to the trust fund within 30 days of any annual reporting date on which the trust fund balance falls below the required reserve in accordance with paragraph (5) of subdivision (b) and such deposits shall be in an amount sufficient to bring the trust fund balance into compliance with this section.
(c)
Any provider which has executed refundable contracts in a continuing care retirement community prior to January 1, 1996, and which has not executed refundable contracts in a continuing care retirement community prior to January 1, 1991, shall submit, for the department’s approval, a method of determining a refund reserve to be held in trust for the residents. Approved methods include any of the following:
(1)
The establishment, at the time continuing care contracts are signed, of a reserve fund in trust for the full amount of the refunds promised.
(2)
The purchase from an insurance company, authorized to do business in the State of California, of fully paid life insurance policies for the full amount of the refunds promised.
(3)
A method approved by the American Academy of Actuaries in their Actuarial Standards of Practice Relating to Continuing Care Retirement Communities, which method provides for fully funding the refund obligations in a separate trust fund as provided in subdivision (b).
(d)
Any provider offering a refundable contract, or other entity assuming responsibility for refundable contracts prior to January 1, 1991, shall maintain a refund
reserve bank account in trust for the residents as described in subdivision (b) except that the amount of refund reserves shall be calculated based on the following assumptions and methods of calculation:
(1)
The continuing care retirement community will no longer receive entry fee income after a period of 40 years following the commencement of operation.
(2)
Approved long-term investments, such as treasury notes, will earn 3 percent more than the rate of inflation.
(3)
Entrance fees will increase at the rate of inflation.
(4)
Land values will increase at the rate of inflation.
(5)
Investments in the refund reserve trust will increase at the rate for approved long-term investments.
(6)
Calculate the number of units to be resold each year at the approved rate of turnover.
(7)
Determine the mean entrance fee, as of the current date.
(8)
Determine the factor for inflating the mean entrance fee at the rate of 3 percent below the interest rate on new 30-year treasury bonds, for each year from the current date to the 40th year of operation, or until all units have been turned over.
(9)
Calculate the inflated mean entrance fees for the 40th year and for each preceding year, until all units have been turned over.
(10)
Multiply the inflated mean entrance fee for the 40th year, and each preceding year, as specified in paragraph (9), by the annual turnover, as specified in
paragraph (6), until the total of the annual turnovers used in the calculations equals the total number of units in the continuing care retirement community.
(11)
The projected refund liability shall be the sum of the products obtained pursuant to paragraph (10), multiplied by the rate of refund for the seventh year of residency, specified by current continuing care contracts, multiplied by the percentage of current continuing care contracts which specify this rate of refund. The projected refund liability amount shall be calculated for each rate, if existing continuing care contracts specify several rates.
(12)
The projected refund liability, or the aggregate of these liabilities, if several rates are obtained pursuant to paragraph (11), may be reduced by the value of the land used for the continuing care retirement community, inflated to the 40th year of operation, as determined
pursuant to paragraph (4), if the provider agrees to a lien pursuant to Section 1793.15 to secure this commitment.
(13)
Calculate the present value of the projected refund liability at the current rate of interest for new 30-year treasury bonds. The result is the required refund reserve.
(e)
Any entity which holds a certificate of authority, provisional certificate of authority, or permit to sell deposit subscriptions on or before September 23, 1986, shall be exempted from the refund reserve requirement established by this section, if the entity has an equity balance of five times the amount of the refund reserves calculated pursuant to subdivision (c).
(1)
The equity balance shall be verified by one or more of the following means:
(A)
The
“stockholders’ equity,” or equivalent amount, as reflected on the most recent Form 10K (which may be on a consolidated basis or on a consolidated and combined basis) filed with the Securities and Exchange Commission.
(B)
The “total fund balance of net worth,” or equivalent amount, as reflected on Form 990 or Form 990-PF filed with the Internal Revenue Service.
(C)
The “total net worth,” or equivalent amount, as reflected on the most recent Form 109 filed with the Franchise Tax Board.
(2)
The amount of the requirement for the equity balance shall be revised annually pursuant to this section.
(3)
Compliance shall be based on review, by the department, of financial statements prepared in accordance with generally accepted accounting principles, accompanied
by an unqualified opinion by a certified public accountant.
(4)
If the equity balance is determined by the department to be less than the required amount, the provider or other entity assuming responsibility shall deposit, in a form satisfactory to the department, an amount equal to the refund reserve required within 60 days.
(f)
All continuing care retirement communities offering refundable entrance fees that are not secured by cash reserves, except those facilities that were issued a certificate of authority prior to May 31, 1995, shall clearly disclose this fact in all marketing materials and continuing care contracts.