1. (1) Scope of Rule. This rule implements Section 651.123, F.S., and applies to a dispute between a resident and a provider except a dispute over increases in monthly maintenance fees.

2. (2) Definitions. The following definitions shall apply for purposes of this rule:

   1. (a) “Administrator” means the entity designated by contract with the Office to administer mediation conferences under this rule. If an entity has not been designated, the Office will be the administrator.
   2. (b) “Approved,” as used in this rule with regard to approval of a mediator, means to designate based upon successfully meeting the criteria set forth in Section 44.106, F.S., and the Florida Rules of Certified and Court Appointed Mediators, or Section 627.745(3)(b), F.S. Only approved mediators may mediate disputes under this rule.
   3. (c) “Complainant” refers to the party requesting mediation.
   4. (d) “Office” means the Office of Insurance Regulation.
   5. (e) “Frivolous” means involving no justiciable question and is readily recognizable as devoid of merit.
   6. (f) “Provider” means the owner or operator who undertakes to provide continuing care to a resident.
   7. (g) “Resident” means a purchaser of or a subscriber to a continuing care agreement or their nominee.
   8. (h) “Respondent” refers to the party not first requesting mediation.
   9. (i) “Service office” means a designated office of the Bureau of Outreach and Education, Division of Insurance Consumer Services, Department of Financial Services.
3. (3) Computation of Time. In computing any period of time described by this rule, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday. All time periods specified in this rule refer to the number of calendar days, not business days, unless otherwise specified in this rule.

4. (4) Service Offices. For disposition of mediation conferences the State of Florida shall be divided among the following designated service offices:

   1. (a) Daytona Beach Service Office shall be composed of the following counties: Flagler, Marion, Putnam, and Volusia.
   2. (b) Fort Lauderdale Service Office shall be composed of Broward county.
   3. (c) Fort Myers Service Office shall be composed of the following counties: Charlotte, Collier, De Soto, Glades, Hendry, Highlands, and Lee.
   4. (d) Jacksonville Service Office shall be composed of the following counties: Alachua, Baker, Bradford, Clay, Columbia, Dixie, Duval, Gilchrist, Hamilton, Lafayette, Levy, Nassau, St. Johns, Suwannee, and Union.
   5. (e) Miami Service Office shall be composed of Dade and Monroe counties.
   6. (f) Orlando Service Office shall be composed of the following counties: Brevard, Citrus, Lake, Orange, Osceola, Seminole, and Sumter.
   7. (g) Pensacola Service Office shall be composed of the following counties: Bay, Calhoun, Escambia, Gulf, Holmes, Jackson, Okaloosa, Santa Rosa, Walton, and Washington.
   8. (h) St. Petersburg Service Office shall be composed of the following counties: Manatee, Pinellas, and Sarasota.
   9. (i) Tallahassee Bureau of Consumer Assistance Service Office shall be composed of the following counties: Gadsden, Franklin, Jefferson, Leon, Liberty, Madison, Taylor, and Wakulla.
   10. (j) Tampa Service Office shall be composed of the following counties: Hardee, Hernando, Hillsborough, Pasco, and Polk.
   11. (k) West Palm Beach Service Office shall be composed of the following counties: Indian River, Martin, Okeechobee, Palm Beach, and St. Lucie.
5. (5) Request for Mediation. Upon the Office’s receipt of a complaint that is within the scope of this rule, the Office shall furnish the provider (or the resident if the provider is the complainant) with the details of the complaint. The resident and the provider shall have 21 days from receipt of that notification within which to resolve the matter. For good cause shown, the Office is authorized to extend this period for up to an additional 14 days. Good cause in this instance includes unavailability of the resident for health reasons, inability to contact the resident, or other impediments to the resident’s ability to resolve the matter which the resident could not control and which cannot reasonably be remedied during the initial 21 day period. If the matter is not resolved within that period of time, the provider shall immediately notify the Office, in writing, that the matter is unresolved. A copy of that notification shall be furnished to the resident and the resident shall be advised of his right to mediate the dispute if he elects to do so. The cost of mediation shall normally be paid by the provider, except for second and subsequent mediations which shall be allocated as set forth in paragraph (9)(b). However, if the provider believes the complaint is frivolous, the provider may include in its notification that the matter remains unresolved, a written explanation as to why the provider believes the complaint is frivolous. That explanation shall be supplied to the resident and the resident shall be advised that, if he elects to mediate the complaint and the mediator determines that his complaint is frivolous, the costs of the mediation shall be charged to him and not to the provider.

6. (6) Mediators.

   1. (a) Mediator Approval. The Bureau of Agent & Agency Licensing, Department of Financial Services, shall approve as mediators those persons who meet the qualifications set forth in Section 44.106, F.S., and the Florida Rules of Certified and Court Appointed Mediators (5/28/92), which are incorporated herein by reference, and from those mediators qualified to mediate under Section 627.745(3)(b), F.S. Persons wishing to be approved as mediators shall submit their qualifications to the Bureau of Agent and Agency Licensing, Department of Financial Services, 200 East Gaines Street, Tallahassee, FL 32399-0319, on Form DFS-H2-591, “Application for Appointment as a Mediator,” which is adopted and incorporated by reference in subsection 69O-211.002(30), F.A.C.
   2. (b) List of Approved Mediators. The Bureau of Agent & Agency Licensing, Department of Financial Services, shall maintain a list of all approved mediators, which list shall include the mediator’s name, address, telephone number, social security number, a listing of counties in which each mediator is willing to mediate, and date of entry to the list.
   3. (c) Grouping of Assignments. Requests for mediation will, if feasible, be grouped together and assigned to a single mediator. A mediator will be assigned a maximum of four mediation conferences under a single assignment.
   4. (d) Procedure and Conduct. All mediation conferences shall be conducted in accordance with this rule, the Florida Rules for Certified and Court-Appointed Mediators as set forth in Rules 10.020-10.290, Florida Rules of Civil Procedure, as incorporated above, and other consistent rules of conduct as promulgated by the Supreme Court of Florida. Mediators shall have the same responsibilities to the Department as they have to the courts under the Florida Rules for Certified and Court-Appointed Mediators. The Florida Rules for Certified and Court-Appointed Mediators shall be read in a manner consistent with this rule and any conflict between this rule and the Florida Rules for Certified and Court-Appointed Mediators shall be resolved in favor of this rule. The mediator may meet with the parties separately, encourage meaningful communications and negotiations, and otherwise assist the parties to arrive at a settlement. For purposes of this mediation program, mediators shall have the immunity from suit provided to mediators in Section 44.107, F.S. All communications with the mediator shall be confidential. All statements made and documents produced at a settlement conference constitute settlement negotiations in anticipation of litigation. The mediation proceedings are confidential and inadmissible in any subsequent adversarial proceeding.

   5. (e) Complaints; Discipline. At any time a party may move to disqualify a mediator for good cause. Good cause consists of conflict of interest between a party and the mediator, that the mediator is unable to handle the conference competently, or other reasons which would reasonably be expected to impair the conference. Complaints concerning a mediator shall be written and submitted to the Bureau of Consumer Assistance, Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-0322. The Department shall review the following grounds for discipline:

      1. Alleged instances of dishonest, incompetent, fraudulent, or unethical behavior on the part of a mediator;

      2. Instances in which the mediator allegedly failed to promptly and completely respond to requests from the Department and instances in which the actions or failure to act on the part of the mediator violate this rule including the standards set forth in this sub-section or are counter to the intent and purpose of this mediation program or this rule;

      3. Administrative action by any other agency or body against the mediator, regardless of whether the agency or body’s regulation relates to mediation;

      4. The mediator has been found guilty of or pled guilty or nolo contendere to a felony or a crime punishable by imprisonment of 1 year or more under the law of the United States of America or of any state thereof or under the law of any other country, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

      If the Department determines that any of the above grounds exist, the Department shall institute proceedings in accordance with Chapter 120, F.S., to rescind the approval of the mediator to handle any mediation or arbitration program sponsored by the Department.

7. (7) Mediation Conference.

   1. (a) Location. The mediation conference shall be held at a location reasonably specified by the administrator or mediator in a letter to the parties prior to the conference. The location of the conference will be based upon convenience to the parties or a party, or the underlying circumstances of the particular mediation. The Department will make available conference rooms at its various service offices throughout the state for possible use. Before scheduling a mediation conference the administrator or mediator may contact the service office administrator to determine the availability of service office facilities to accommodate the mediation conference. If no facilities are available at the service office for the particular mediation conference then the service office administrator will designate an alternative location, if available, for the mediation conference. If the parties determine that the assigned conference location is inconvenient or impractical, the parties and the administrator or mediator may agree to conduct the mediation conference at an alternative location. The administrator or mediator will notify the parties and the Department of the exact time, date, and location of the conference.
   2. (b) Timing and Continuances. The mediation conference shall be held as scheduled by the administrator or the mediator. Upon application by any party to the administrator or mediator for a continuance, the administrator or mediator shall, for good cause shown or if neither party objects, grant a continuance and shall notify all parties of the date and place of the rescheduled conference. Good cause includes severe illness, injury, or other emergency which could not be controlled by the party and cannot reasonably be remedied by the party prior to the conference by providing a replacement representative or otherwise. Also, good cause includes the necessity of obtaining additional information, securing the attendance of a necessary professional, or the avoidance of significant financial hardship. If the resident demonstrates to the administrator or mediator, the need for an expedited mediation conference due to an undue hardship, the conference shall be conducted at the earliest date convenient to all of the parties and the administrator or mediator. Undue hardship will be demonstrated when holding the conference on a non-expedited basis would interfere with or contradict the treatment of a severe illness or injury, substantially impair a party’s ability to assert their position at the conference, result in significant financial hardship, or other reasonably justified grounds.
   3. (c) Attendance. The complainant and respondent shall attend the mediation conference and be fully authorized to make an agreement to completely resolve the claim. All corporate parties who are complainants or respondents shall attend the conference in the person of a corporate representative who has full knowledge of the facts of the dispute and is fully authorized to make an agreement to completely resolve the dispute.
   4. (d) Good Faith Negotiation. The participants are to negotiate in good faith to attempt to resolve the dispute, however there is no requirement that the dispute must be resolved in mediation.

8. (8) Disbursement of Costs.

   1. (a) Before the date set for the conference the provider or the resident as described in paragraph (9)(b), shall pay to the administrator the costs of mediation which shall not exceed $250, $50 of which shall be deposited in the Chief Financial Officer’s Regulatory Trust Fund to defer Department costs. The mediator’s fee shall be affected as follows:

      1. Completed Mediation Conference. If the mediation conference is held, the mediator shall receive the mediator’s full fee.

      2. Cancellation More Than 3 Days Before Conference. If a mediation conference is cancelled by a party for reason of settlement or for any other reason more than 3 business days before the scheduled conference date, the parties shall notify the administrator and the mediator upon cancellation. In this case the parties shall not be responsible for the mediator’s fee, and the provider shall pay the mediator’s and the administrator’s fee for any rescheduled conference to resolve the dispute.

      3. Cancellation Within 3 Days of Conference. If the parties cancel the mediation within 3 days of the scheduled mediation conference, the provider shall pay $50 to compensate the mediator.

      4. Cancellation Due To Absence. Failure of a party to arrive at the mediation conference within 30 minutes of the conference’s starting time shall be considered an absence. In the event of an absence, the provider shall pay $50 to compensate the mediator. Payment shall be as follows:

      a. If the resident fails to appear at the conference, the resident shall pay the provider’s actual cash outlays incurred in attending the conference and the conference shall be rescheduled upon the resident’s payment of the mediator’s and the administrator’s fee for the rescheduled conference.

      b. If the provider fails to appear at the conference, the provider shall pay the resident’s actual cash outlays incurred in attending the conference and shall pay the mediator’s and the administrator’s fee for the rescheduled conference. If a provider fails to appear at conferences with such frequency as to evidence a general business practice of failure to appear, the provider shall be subject to penalty, including revocation, suspension, or fine. Such suspension of a provider’s certificate of authority shall be for a period of 1 year. An administrative fine shall be in the amount of $1,000 per violation in cases of non-willfull violation, and $10,000 per violation in cases of a knowing and willful violation. The department will mitigate these penalties based upon the following factors: Solvency of the facility, best interests of or potential harm to the residents, and willfulness of the violation.

   2. (b) Any disputes regarding the amount of disbursement of funds shall be resolved by the Department.
   3. (c) Except as provided in subparagraph (8)(a)4., any expenses associated with the mediation conference, such as travel, telephone, postage, meals, lodging, facilities, and other related expenses, shall be borne by the party, mediator or other person incurring the expense.
   4. (d) The Department reserves the right to reduce fees based on consumer surveys and cost analysis.

9. (9) Post-Mediation.

   1. (a) At the conclusion of the mediation conference, the mediator will file with the administrator a mediator’s status report indicating whether or not the parties reached a settlement. In the event a settlement is financial, the resident shall have 3 business days from the time he receives any final settlement check or draft to rescind the settlement provided that the resident has not negotiated any check or draft disbursed to him or her for the disputed matters as a result of the conference. If a settlement agreement is reached and not rescinded within 3 business days as set forth above, it shall act as a final determination of the specific issues that were presented at the conference. If the provider included in its notice that the matter remained unresolved due to a charge that the complaint was frivolous and an explanation supporting that charge, the mediator shall include in his status report a determination as to whether or not that is the case. If so, the costs of the mediation shall be paid by the complainant. If not, the costs of the mediation shall be paid by the provider unless it is a second or subsequent mediation, in which case the costs shall be allocated as set forth in paragraph (9)(b).
   2. (b) If a resident elects more than one mediation hereunder in any 12 month period, the cost of the second and all subsequent mediations in that 12 month period shall be borne by the resident. If a resident elects more than three mediations hereunder in any time period, the cost of the fourth and all subsequent mediations shall be borne equally by the resident and the provider. When this reallocation of the costs of mediation applies to a second or subsequent complaint from a resident, the provider may waive said reallocation of costs and choose to pay the costs of mediation itself. If the provider chooses not to waive that reallocation of costs, the provider shall include in its notification to the administrator that the matter remains unresolved, a list of the resident’s previous mediations hereunder, and a statement that the cost of this mediation and subsequent mediations if applicable, is to be paid, in whole or in part as the case may be, by the resident. A copy thereof shall be furnished to the complaining resident prior to or along with the notice to the resident of his right to elect mediation. Failure to timely provide said copy to the complaining resident shall be deemed a waiver by the provider of said reallocation of costs and a decision to pay the costs of mediation itself.
10. (10) Arbitration. Any portion of a dispute which qualifies for mediation under this rule and is not settled through mediation may be submitted by a party to binding arbitration under Rule 69O-193.063, F.A.C., if all parties agree in advance to be bound by the arbitrated result.

Rulemaking Authority 624.308(1), 651.015(3) FS. Law Implemented 624.307(1), 651.106, 651.107, 651.108, 651.123 FS. History–New 7-7-94, Formerly 4-193.062.