CHAPTER 4. SUPERVISION OF CONTINUING CARE CONTRACTS
IC 23-2-4
Chapter 4. Supervision of Continuing Care Contracts
IC 23-2-4-1
Definitions
Sec. 1. As used in this chapter, the term:
"Application fee" means the fee charged an individual, in additionto the entrance fee or any other fee, to cover the provider'sreasonable costs in processing the individual's application to becomea resident.
"Commissioner" means the securities commissioner as providedin IC 23-19-6-1(a).
"Continuing care agreement" means the following:
(1) For continuing care retirement communities registeredbefore July 1, 2009, an agreement by a provider to furnish to anindividual, for the payment of an entrance fee of at leasttwenty-five thousand dollars ($25,000) and periodic charges:
(A) accommodations in a living unit of a continuing careretirement community;
(B) meals and related services;
(C) nursing care services;
(D) medical services;
(E) other health related services; or
(F) any combination of these services;
for the life of the individual or for more than one (1) month,unless the agreement is canceled.
(2) For continuing care retirement communities registered afterJune 30, 2009, an agreement by a provider to furnish to anindividual, for the payment of an entrance fee of at leasttwenty-five thousand dollars ($25,000) and periodic charges:
(A) accommodations in a living unit of a continuing careretirement community;
(B) meals and related services;
(C) nursing care services;
(D) medical services;
(E) other health related services; or
(F) any combination of these services;
for the life of the individual, unless the agreement is terminatedas specified under this chapter.
"Continuing care retirement community" includes both of thefollowing:
(1) An independent living facility.
(2) A health facility licensed under IC 16-28.
"Contracting party" means a person or persons who enter into acontinuing care agreement with a provider.
"Entrance fee" means the sum of money or other property paid ortransferred, or promised to be paid or transferred, to a provider inconsideration for one (1) or more individuals becoming a resident ofa continuing care retirement community under a continuing careagreement. "Living unit" means a room, apartment, cottage, or other areawithin a continuing care retirement community set aside for the useof one (1) or more identified residents.
"Long term financing" means financing for a period in excess ofone (1) year.
"Omission of a material fact" means the failure to state a materialfact required to be stated in any disclosure statement or registrationin order to make the disclosure statement or registration, in light ofthe circumstances under which they were made, not misleading.
"Person" means an individual, a corporation, a partnership, anassociation, a limited liability company, or other legal entity.
"Provider" means a person that agrees to provide care under acontinuing care agreement.
"Refurbishment fee" means the fee charged an individual, inaddition to the entrance fee or any other fee, to cover the provider'sreasonable costs in refurbishing a previously occupied living unitspecifically designated for occupancy by that individual.
"Resident" means an individual who is entitled to receive benefitsunder a continuing care agreement.
"Solicit" means any action of a provider in seeking to have anindividual residing in Indiana pay an application fee and enter intoa continuing care agreement, including:
(1) personal, telephone, or mail communication or any othercommunication directed to and received by any individual inIndiana; and
(2) advertising in any media distributed or communicated byany means to individuals residing in Indiana.
"Termination" refers to the cancellation of a continuing careagreement under this chapter.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.234-1985,SEC.1; P.L.177-1991, SEC.8; P.L.8-1993, SEC.312; P.L.27-2007,SEC.16; P.L.153-2009, SEC.3.
IC 23-2-4-2
Application of chapter
Sec. 2. This chapter applies to any person who:
(1) enters into a continuing care agreement in Indiana to providecare at a continuing care retirement community located eitherinside Indiana or outside Indiana;
(2) enters into a continuing care agreement outside Indiana toprovide care at a continuing care retirement community locatedin Indiana;
(3) extends the term of an existing continuing care agreementin Indiana to provide care at a continuing care retirementcommunity located either inside Indiana or outside Indiana;
(4) extends the term of an existing continuing care agreementoutside Indiana to provide care at a continuing care retirementcommunity located in Indiana; or
(5) solicits the execution of a continuing care agreement bypersons in Indiana.As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.153-2009,SEC.4.
IC 23-2-4-3
Registration; application; order
Sec. 3. (a) A provider shall register each continuing careretirement community with the commissioner if:
(1) before opening the continuing care retirement community,the provider:
(A) enters into;
(B) extends; or
(C) solicits;
a continuing care agreement; or
(2) while operating the continuing care retirement community,the provider has entered into a continuing care agreement withat least twenty-five percent (25%) of the individuals living inthe continuing care retirement community.
(b) If a provider fails to register a continuing care retirementcommunity, the provider may not:
(1) enter into, or extend the term of, a continuing careagreement to provide continuing care to any person at thatcontinuing care retirement community;
(2) provide services at that continuing care retirementcommunity under a continuing care agreement; or
(3) solicit the execution, by persons residing within Indiana, ofa continuing care agreement to provide continuing care at thatcontinuing care retirement community.
(c) The provider's application for registration must be filed withthe commissioner by the provider on forms prescribed by thecommissioner, and must be accompanied by an application fee of twohundred fifty dollars ($250). The application must contain thefollowing information:
(1) an initial disclosure statement, as described in section 4 ofthis chapter; and
(2) any other information required by the commissioner underrules adopted under this chapter.
(d) The commissioner may accept, in lieu of the informationrequired by subsection (c), any other registration, disclosurestatement, or other document filed by the provider in Indiana, in anyother state, or with the federal government if the commissionerdetermines that such document substantially complies with therequirements of this chapter.
(e) Upon receipt of the application for registration, thecommissioner shall mark the application filed. Within sixty (60) daysof the filing of the application, the commissioner shall enter an orderregistering the provider or rejecting the registration. If no order ofrejection is entered within that sixty (60) day period, the providershall be considered registered unless the provider has consented inwriting to an extension of time; if no order of rejection is enteredwithin the time period as extended by consent, the provider shall be
considered registered.
(f) If the commissioner determines that the application forregistration complies with all of the requirements of this chapter, thecommissioner shall enter an order registering the provider. If thecommissioner determines that such requirements have not been met,the commissioner shall notify the provider of the deficiencies andshall inform the provider that it has sixty (60) days to correct them.If the deficiencies are not corrected within sixty (60) days, thecommissioner shall enter an order rejecting the registration. Theorder rejecting the registration shall include the findings of fact uponwhich the order is based. The provider may petition forreconsideration, and is entitled to a hearing upon that petition.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.153-2009,SEC.5.
IC 23-2-4-4
Initial disclosure statement; contents
Sec. 4. The initial disclosure statement shall contain the followinginformation:
(1) The name and business address of the provider.
(2) If the provider is a partnership, corporation, limited liabilitycompany, or association, the names and duties of its officers,directors, trustees, partners, members, or managers.
(3) The name and business address of any person having a fivepercent (5%) or greater ownership interest in the provider ormanager of the continuing care retirement community.
(4) A description of the business experience of the provider andits officers, directors, trustees, partners, or managers.
(5) A statement as to whether the provider or any of its officers,directors, trustees, partners, or managers, within ten (10) yearsprior to the date of the initial disclosure statement:
(A) was convicted of a crime;
(B) was a party to any civil action for fraud, embezzlement,fraudulent conversion, or misappropriation of property thatresulted in a judgment against the provider or individual;
(C) had a prior discharge in bankruptcy or was foundinsolvent in any court action; or
(D) had any state or federal licenses or permits suspended orrevoked in connection with any health care or continuingcare activities, or related business activities.
(6) The identity of any other continuing care retirementcommunity currently or previously operated by the provider ormanager of the continuing care retirement community.
(7) The location and description of other properties, bothexisting and proposed, of the provider in which the providerowns a twenty-five percent (25%) ownership interest, and onwhich continuing care retirement communities are or areintended to be located.
(8) A statement as to whether the provider is, or is affiliatedwith, a religious, charitable, or other nonprofit association, and
the extent to which the affiliate organization is responsible forthe financial and contractual obligations of the provider.
(9) A description of all services to be provided by the providerunder its continuing care agreements with contracting parties,and a description of all fees for those services, includingconditions under which the fees may be adjusted.
(10) A description of the terms and conditions under which thecontinuing care agreement can be cancelled, or fees refunded.
(11) Financial statements of the provider prepared inaccordance with generally accepted accounting principlesapplied on a consistent basis and certified by an independentcertified or public accountant, including a balance sheet as ofthe end of the provider's last fiscal year and income statementsfor the last three (3) fiscal years, or such shorter period of timeas the provider has been in operation.
(12) If the operation of the continuing care retirementcommunity has not begun, a statement of the anticipated sourceand application of funds to be used in the purchase orconstruction of the continuing care retirement community, andan estimate of the funds, if any, which are anticipated to benecessary to pay for start-up losses.
(13) A copy of the forms of agreement for continuing care usedby the provider.
(14) Any other information that the commissioner may requireby rule or order.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.8-1993,SEC.313; P.L.153-2009, SEC.6.
IC 23-2-4-5
Annual disclosure statement; contents; fee
Sec. 5. (a) Each year after the initial year in which a continuingcare retirement community is registered under section 3 of thischapter, the provider shall file with the commissioner within four (4)months after the end of the provider's fiscal year, unless otherwiseextended by the written consent of the commissioner, an annualdisclosure statement which shall consist of the financial informationset forth in section 4(11) of this chapter.
(b) The annual disclosure statement required to be filed with thecommissioner under this section shall be accompanied by an annualfiling fee of one hundred dollars ($100).
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.234-1985,SEC.2; P.L.153-2009, SEC.7.
IC 23-2-4-6
Disclosure statements; amendment
Sec. 6. (a) A provider shall amend its initial or annual disclosurestatement filed with the commissioner under section 3 and section 5of this chapter at any time if necessary to prevent the initial or annualdisclosure statement from containing any material misstatement offact or omission of a material fact. (b) Upon the sale of a continuing care retirement community to anew provider, the new provider shall amend the currently fileddisclosure statement to reflect the fact of sale and any other fact thatwould be required to be disclosed under section 4 of this chapter ifthe new provider were filing an initial disclosure statement.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.153-2009,SEC.8.
IC 23-2-4-7
Delivery of disclosure statements to persons executing agreements
Sec. 7. (a) Prior to the execution of a continuing care agreement,a provider shall deliver to the contracting party and the prospectiveresident a copy of the initial disclosure statement and the latestannual disclosure statement.
(b) After the execution of a continuing care agreement, a providershall provide, upon request, a copy of the initial disclosure statementand the latest annual disclosure statement.
As added by Acts 1982, P.L.145, SEC.1.
IC 23-2-4-7.5
Termination of contract
Sec. 7.5. (a) This section does not apply to a continuing careretirement community registered before July 1, 2009.
(b) A continuing care agreement may be terminated for any of thefollowing reasons:
(1) The provider has determined that the resident isinappropriate for living in the care setting.
(2) The resident is unable to fully pay the periodic chargesbecause the resident inappropriately divested the assets andincome the resident identified at the time of admission to meetthe ordinary and customary living expenses for the resident.
(3) Providing assistance to the resident would jeopardize thefinancial solvency of the provider and the other residents beingserved by the provider.
(4) The resident has requested a termination of the agreementas allowed under the agreement.
As added by P.L.153-2009, SEC.9.
IC 23-2-4-8
Sanctions against registration of providers or execution of newcontinuing care agreements; findings of fact; cease and desistorder; notice and hearing
Sec. 8. (a) The commissioner may deny, revoke, or refuse torenew registration of a provider or prohibit the execution of newcontinuing care agreements if the commissioner finds that:
(1) the provider willfully violated any provision of this chapteror any rule or order adopted under this chapter;
(2) the provider failed to file an annual disclosure statementrequired by section 5 of this chapter;
(3) the provider failed to deliver to a prospective resident or
contracting party a copy of the disclosure statements as requiredby section 7 of this chapter;
(4) the provider delivered to a prospective resident orcontracting party a disclosure statement that contained amisstatement of material fact or omission of a material fact eventhough the provider, at the time of the delivery of the disclosurestatement, had no actual knowledge of the misstatement oromission;
(5) the provider failed to comply with the terms of a cease anddesist order of the commissioner; or
(6) according to rules adopted by the commissioner underIC 4-22-2, the provider is insolvent and the financial conditionof the provider may jeopardize the care of the residents.
(b) Findings of fact in support of an order under this section, if setforth in statutory language, shall be accompanied by a concise andexplicit statement of the underlying facts supporting the findings.
(c) If the commissioner finds, after notice and hearing, that theprovider has committed a violation for which revocation could beordered, the commissioner may first issue a cease and desist order.If the cease and desist order is not effective in remedying theviolation, the commissioner may, after notice and hearing, order thatthe registration be revoked.
(d) The commissioner may summarily prohibit the execution ofnew continuing care agreements pending final determination of anyproceeding under this section. Upon the entry of the order, thecommissioner shall promptly notify the provider that it has beenentered and of the reasons for the order and that upon receipt of awritten request the matter will be set down for hearing to commencewithin fifteen (15) business days after receipt of the request unlessthe provider consents to a later date. If no hearing is requested andnone is ordered by the commissioner, the order remains in effectuntil it is modified or vacated by the commissioner. If a hearing isrequested or ordered, the commissioner, after notice of andopportunity for hearing to the provider, may modify, vacate, orextend the order until final determination.
(e) Except as provided in subsection (d), an order may not beentered under this section unless there has been:
(1) appropriate prior notice to the provider;
(2) opportunity for hearing; and
(3) written findings of fact and conclusions of law.
(f) The commissioner may vacate or modify an order if thecommissioner finds that the conditions that prompted entry havechanged or that it is in the public interest to do so.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.131-1988,SEC.6; P.L.1-1992, SEC.114.
IC 23-2-4-9
Offense
Sec. 9. A person who knowingly or intentionally fails to complywith any of the registration or disclosure requirements of sections 3,
4, 5, 6, or 7 of this chapter commits a Class A infraction.
As added by Acts 1982, P.L.145, SEC.1.
IC 23-2-4-10
Conditions of registration; deposit of entrance and refurbishmentfees into escrow account; limitations
Sec. 10. (a) Except as provided by section 11 of this chapter, thecommissioner shall require, as a condition of registration, that:
(1) the provider establish an interest-bearing escrow accountwith a bank, trust company, or other escrow agent approved bythe commissioner; and
(2) any entrance fees received by the provider prior to the datethe resident is permitted to occupy the living unit in thecontinuing care retirement community be placed in the escrowaccount, subject to release as provided by subsection (b).
(b) If the entrance fee gives the resident the right to occupy aliving unit that has been previously occupied, the entrance fee andany income earned thereon shall be released to the provider when theliving unit is first occupied by the new resident. If the entrance feeapplies to a living unit that has not been previously occupied by anyresident, the entrance fee and any income earned thereon shall bereleased to the provider when the commissioner is satisfied that:
(1) aggregate entrance fees received or receivable by theprovider pursuant to executed continuing care agreements, plus:
(A) anticipated proceeds of any first mortgage loan or otherlong term financing commitment; and
(B) funds from other sources in the actual possession of theprovider;
are equal to at least fifty percent (50%) of the aggregate cost ofconstructing, purchasing, equipping, and furnishing thecontinuing care retirement community and equal to at least fiftypercent (50%) of the estimate of funds necessary to fund startuplosses of the continuing care retirement community, as reportedunder section 4(12) of this chapter; and
(2) a commitment has been received by the provider for anypermanent mortgage loan or other long term financingdescribed in the statement of anticipated source and applicationof funds to be used in the purchase or construction of thecontinuing care retirement community under section 4(12) ofthis chapter, and any conditions of the commitment prior todisbursement of funds thereunder, other than completion of theconstruction or closing of the purchase of the continuing careretirement community, have been substantially satisfied.
(c) If the funds in an escrow account under this section and anyinterest earned thereon are not released within the time provided bythis section or by rules adopted by the commissioner, then the fundsshall be returned by the escrow agent to the persons who made thepayment to the provider.
(d) An entrance fee held in escrow shall be returned by the escrowagent to the person who paid the fee in the following instances: (1) At the election of the person who paid the fee, at any timebefore the fee is released to the provider under subsection (b).
(2) Upon receipt by the escrow agent of notice from theprovider that the person is entitled to a refund of the entrancefee.
(e) This section does not require a provider to place anonrefundable application fee charged to prospective residents inescrow.
(f) A provider is not required to place a refurbishment fee of aprospective resident in escrow if a continuing care agreementprovides that the prospective resident:
(1) will occupy the living unit within sixty (60) days after therefurbishment fee is paid; and
(2) will receive a refund of any portion of the refurbishment feenot expended for refurbishment if the continuing careagreement is cancelled before occupancy.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.234-1985,SEC.3; P.L.153-2009, SEC.10.
IC 23-2-4-11
Letter of credit, negotiable securities, or bond instead of escrowaccount
Sec. 11. In lieu of establishing an escrow account under section10 of this chapter, a provider may, with the commissioner'spermission, post a letter of credit from a financial institution,negotiable securities, or a bond by a surety authorized to do businessin Indiana. The letter of credit, negotiable securities, or bond mustbe:
(1) approved by the commissioner as to form;
(2) for an amount not to exceed the total amount of all entrancefees received by the provider before the date the resident ispermitted to occupy the living unit; and
(3) executed in favor of the commissioner on behalf ofindividuals who may be found entitled to a refund of entrancefees.
As added by Acts 1982, P.L.145, SEC.1.
IC 23-2-4-12
Entrance fees; use
Sec. 12. Any money or property received by a provider as anentrance fee to a continuing care retirement community constructedor purchased after August 31, 1982, or any income earned thereon,may be used by the provider only for purposes directly related to theconstruction, maintenance, or operation of that particular continuingcare retirement community. A continuing care retirement communityin operation on September 1, 1982, may not use the entrance fees orincome earned thereon after August 31, 1982, for the construction,operation, or maintenance of another continuing care retirementcommunity constructed or purchased after August 31, 1982.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.153-2009,
SEC.11.
IC 23-2-4-13
Retirement home guaranty fund; creation and expiration; purpose;levy
Sec. 13. (a) There is established the Indiana retirement homeguaranty fund. The purpose of the fund is to provide a mechanism forprotecting the financial interests of residents and contracting partiesin the event of the bankruptcy of the provider.
(b) To create the fund, a guaranty association fund fee of onehundred dollars ($100) shall be levied on each contracting party whoenters into a continuing care agreement after August 31, 1982, andbefore July 1, 2009. The fee shall be collected by the provider andforwarded to the commissioner within thirty (30) days afteroccupancy by the resident. Failure of the provider to collect andforward such fee to the commissioner within that thirty (30) dayperiod shall result in the imposition by the commissioner of atwenty-five dollar ($25) penalty against the provider. In addition,interest payable by the provider shall accrue on the unpaid fee at therate of two percent (2%) a month.
(c) Any money received by the commissioner under subsection (b)shall be forwarded to the treasurer of state. The fund, and any incomefrom it, shall be held in trust, deposited in a segregated account,invested and reinvested by the treasurer of state in the same manneras provided in IC 20-49-3-10 for investment of the common schoolfund.
(d) All reasonable expenses of collecting and administering thefund shall be paid from the fund.
(e) Money in the fund at the end of the state's fiscal year shallremain in the fund and shall not revert to the general fund.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.2-2006,SEC.180; P.L.153-2009, SEC.12.
IC 23-2-4-14
Fund; board of directors; membership; compensation
Sec. 14. (a) There is established a board of directors to administerthe fund. The board of directors of the fund shall consist of five (5)members to be appointed by the governor, from a list submitted bythe secretary of state, as follows:
(1) one (1) provider;
(2) two (2) residents;
(3) one (1) individual with expertise in insurance; and
(4) one (1) individual with expertise in banking and finance.
In addition, the commissioner shall serve as an ex officio member ofthe board. Directors shall serve such terms as are established in theplan of operation under section 15 of this chapter.
(b) Members of the board of directors are not entitled tocompensation for their services. However, each member is entitledto the following:
(1) Reimbursement for traveling and other expenses incurred as
members of the board, as provided in the state travel policiesand procedures, established by the Indiana department ofadministration and approved by the budget agency.
(2) Reimbursement for expenses related to one (1) mealprovided each year in connection with the board's annualmeeting.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.177-1991,SEC.9.
IC 23-2-4-15
Board; submission and approval of plan of operation; contents ofplan; adoption of rules
Sec. 15. (a) The board of directors shall submit to thecommissioner a plan of operation, and such subsequent amendmentsto the plan as are necessary to assure the fair, reasonable, andequitable administration of the fund. The plan of operation iseffective upon the commissioner's approval, which must be inwriting.
(b) If the board of directors fails to submit by September 1, 1983,a plan of operation considered suitable by the commissioner, or, if atany other time the board of directors fails to submit amendments tothe plan considered necessary by the commissioner, thecommissioner shall adopt rules under IC 4-22-2 necessary to carryout this chapter. The rules continue in force until modified by thecommissioner or superseded by a plan submitted by the board ofdirectors and approved by the commissioner.
(c) The plan of operation shall establish:
(1) procedures for handling the assets of the fund;
(2) the method of reimbursing members of the board ofdirectors under section 14 of this chapter;
(3) regular places and times for meetings of the board ofdirectors;
(4) recordkeeping procedures for all financial transactionsrelating to the fund and the board of directors; and
(5) any additional provisions necessary for the execution of thepowers and duties of the board of directors.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.3-2008,SEC.166.
IC 23-2-4-16
Termination of bankrupt home; payments to residents from fund;subrogation rights of board
Sec. 16. (a) If a continuing care retirement community is bankruptand the operation of the continuing care retirement community isterminated, the board of directors shall, subject to the approval of thecommissioner, distribute from the guaranty association fundestablished in section 13 to the living residents of the continuing careretirement community an aggregate amount not to exceed one-half(1/2) of the amount in the fund at the time of disbursement. Theamount each living resident is entitled to receive shall be prorated,
based on the total amount paid on behalf of the resident by thecontracting party under the continuing care agreement. In no eventmay the amount paid to an individual resident under this sectionexceed the total amount paid on behalf of that resident under thecontinuing care agreement, less the total value of services receivedunder the agreement.
(b) Any living resident of the continuing care retirementcommunity shall be eligible to receive distributions under subsection(a), regardless of whether any contribution to the guarantyassociation fund has been made on behalf of the resident.
(c) A resident compensated under this section assigns theresident's rights under the continuing care agreement, to the extent ofcompensation received under this section, to the board of directorson behalf of the fund. The board of directors may require anassignment of those rights by a resident to the board, on behalf of thefund, as a condition precedent to the receipt of compensation underthis section. The board of directors, on behalf of the fund, issubrogated to these rights against the assets of a bankrupt ordissolved provider. Any monies or property collected by the board ofdirectors under this subsection shall be deposited in the fund.
(d) The subrogation rights of the board of directors, on behalf ofthe fund, have the same priority against the assets of the bankrupt ordissolved provider as those possessed by the resident under thecontinuing care agreement.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.234-1985,SEC.4; P.L.153-2009, SEC.13.
IC 23-2-4-17
Fund; examination and regulation by commissioner; reports
Sec. 17. The fund is subject to examination and regulation by thecommissioner. The board of directors shall submit to thecommissioner before May 1 of each year:
(1) a financial report for the preceding calendar year, in a formapproved by the commissioner; and
(2) a report of its activities during the preceding calendar year.
As added by Acts 1982, P.L.145, SEC.1.
IC 23-2-4-18
Fund; exemption from certain fees and taxes
Sec. 18. The fund is exempt from payment of all fees and taxeslevied by Indiana or any of its political subdivisions.
As added by Acts 1982, P.L.145, SEC.1.
IC 23-2-4-19
Repealed
(Repealed by P.L.234-1985, SEC.5.)
IC 23-2-4-20
Disclosure statements; liability of provider
Sec. 20. (a) If: (1) a provider enters into a continuing care agreement:
(A) in violation of section 3 of this chapter; or
(B) without having first delivered to the contracting partyand the prospective resident the disclosure statements asrequired by section 7 of this chapter; or
(2) a provider delivers to the prospective resident and thecontracting party a disclosure statement that makes an untrue ormisleading statement of material fact or omits a material fact;
the provider is liable to the individual who entered into thecontinuing care agreement for the repayment of all entrance fees,application fees, periodic charges, or other fees paid by that personto the provider less the reasonable value of care and lodging providedthe resident until the untrue statement, misstatement, or omission wasactually or should reasonably have been discovered by the residentor the contracting party, together with interest thereon at the legalrate for judgments, costs, and reasonable attorney's fees.
(b) Liability of the provider under this section for any untruestatement, misstatement, or omission in the disclosure statement shallexist only if the provider had actual knowledge of or, in the exerciseof reasonable care, should have known of the untrue statement,misstatement, or omission.
(c) An action may not be maintained by any individual to enforceliability under this section unless commenced within:
(1) two (2) years after the execution of the continuing careagreement that gave rise to the violation;
(2) two (2) years after the failure to deliver the disclosurestatement; or
(3) two (2) years after the delivery of the disclosure statementcontaining an untrue statement, misstatement, or omission of amaterial fact;
whichever occurs later.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.16-1983,SEC.14.
IC 23-2-4-21
Commissioner; petition for appointment of receiver
Sec. 21. If the commissioner has reason to believe that acontinuing care retirement community is insolvent, the commissionermay petition the superior or circuit court of the county in which thecontinuing care retirement community is located, or the superior orcircuit court of Marion County, for the appointment of a receiver toassume the management and possession of the continuing careretirement community and its assets.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.153-2009,SEC.14.
IC 23-2-4-22
Commissioner; powers; hearings and investigations
Sec. 22. The commissioner, or his designated representative, may:
(1) conduct under IC 4-21.5-3 hearings necessary to carry out
this chapter;
(2) hear evidence;
(3) conduct investigations to determine whether any person hasviolated or is about to violate this chapter or a rule or orderissued under this chapter; and
(4) compel the production of any item relevant to aninvestigation under this chapter.
As added by Acts 1982, P.L.145, SEC.1. Amended by P.L.7-1987,SEC.104.
IC 23-2-4-23
Violations; cease and desist orders; actions for injunctive relief
Sec. 23. (a) If the commissioner determines, after notice andhearing, that any person has violated any provision of this chapter orany rule or order issued under this chapter, the commissioner mayissue an order requiring the person to cease and desist from theunlawful practice or to take such affirmative action as in thejudgment of the commissioner will carry out the purposes of thischapter.
(b) If the commissioner makes a finding of fact in writing that thepublic interest will be irreparably harmed by delay in issuing a ceaseand desist order, it may issue a temporary cease and desist orderwhich shall include in its terms a provision that, upon request, ahearing shall be held within ten (10) days of such request todetermine whether the order becomes permanent. A temporary ceaseand desist order shall be served on the person subject to it bycertified mail, return receipt requested.
(c) If it appears that a person has engaged in an act or practiceconstituting a violation of any provision of this chapter or of a ruleor order issued under this chapter, the commissioner may, with orwithout prior administrative proceedings, bring an action in thecircuit court to enjoin such acts or practices or to enforce compliancewith this chapter or any rule or order issued under this chapter. Uponproper showing, injunctive relief or temporary restraining ordersshall be granted. The commissioner shall not be required to post abond in any court proceeding.
As added by Acts 1982, P.L.145, SEC.1.
IC 23-2-4-24
Rules
Sec. 24. The commissioner shall adopt under IC 4-22-2 rulesnecessary to carry out the provisions of this chapter.
As added by Acts 1982, P.L.145, SEC.1.