52:27D-336. Initial disclosure statement

The provider shall provide a disclosure statement to a prospective resident of a continuing care facility or the person with whom the provider shall enter into a contract to provide continuing care, prior to the execution of the contract or at the time of or prior to the transfer of any money or other property to the provider by or on behalf of the prospective resident, whichever occurs first. The cover page of the disclosure statement shall state in a prominent location and type face, the date of the disclosure statement. The disclosure statement shall be written in plain English and in language understandable by a layperson.

The provider shall attach a copy of the standard form of contract for continuing care used by the provider as an exhibit to each disclosure statement.

The disclosure statement shall contain the following information unless the information is contained in the contract:

a. The name and business address of the provider and a statement of whether the provider is a partnership, corporation or other type of legal entity.

b. The names and business addresses of the officers, directors, trustees, managing or general partners and any person having a 10% or greater equity or beneficial interest in the provider and a description of that person's interest in or occupation with the provider.

c. With respect to the provider, any person named in response to subsection b. of this section and the proposed operator, if the facility is managed on a day-to-day basis by a person other than an individual directly employed by the provider:

(1) A description of the person's business experience, if any, in the operation or management of similar facilities;

(2) The name and address of any professional service firm, association, trust, partnership or corporation in which the person has a 10% or greater interest and which may provide goods, leases or services to the facility of a value of $500.00 or more, within any year;

(3) A description of the goods, leases or services provided pursuant to paragraph (2) of this subsection and the probable or anticipated cost thereof to the facility or provider;

(4) A description of any matter in which the person has been convicted of a felony or pleaded nolo contendere to a felony charge, or has been held liable or enjoined in a civil action which involved fraud, embezzlement, fraudulent conversion or misappropriation of property; and

(5) A description of any matter in which the person is subject to a currently effective injunctive or restrictive court order or, within the past five years, had a State or federal license or permit suspended or revoked as a result of an action brought by a governmental agency or department, which arose out of or related to business activity or health care, including actions affecting a license to operate a residential health care facility, nursing home, retirement home, home for the aged or facility registered under this act or a similar act in another state.

d. A statement whether the provider is or ever has been affiliated with a religious, charitable or other nonprofit organization, the nature of the affiliation, if any, the extent to which the affiliate organization is responsible for the financial and contractual obligations of the provider, and the provision of the federal Internal Revenue Code, if any, under which the provider or affiliate is exempt from the payment of income tax.

e. The location and description of the physical property of the facility, both existing and proposed, and with respect to proposed property, the estimated completion date, the date construction began or shall begin and the contingencies subject to which construction may be deferred.

f. The services provided or proposed to be provided under contracts for continuing care at the facility, including the extent to which medical care and other services are furnished under the basic contract and which other care or services are available at or by the facility at extra charge.

g. A description of all fees required of residents, including the application fee, entrance fee and periodic charges, if any, the manner by which the provider may adjust periodic charges or other recurring fees and the limitation on the adjustments, if any, and if the facility is already in operation or if the provider or operator operates one or more similar facilities within this State, tables showing the frequency and average dollar amount of each increase in periodic rates at each facility for the previous five years or as many years as the facility has been operated by the provider or operator, whichever is less.

h. The provisions that have been made or will be made, if any, to provide reserve funding or security which will enable the provider to fully perform its obligation under contracts to provide continuing care at the facility, including the establishment of escrow accounts, trusts or reserve funds, the manner in which the funds shall be invested and the names and experience of persons who will make the investment decisions.

i. Certified financial statements of the provider, which include balance sheets and income statements for the two most recently completed fiscal years or for as long as the provider has been in existence, whichever is less.

j. If operation of the facility has not yet commenced, a statement of the anticipated source and application of the funds used or to be used in the purchase or construction of the facility, including:

(1) An estimate of the cost of purchasing or construction and equipping the facility, which includes related costs such as financing expenses, legal expenses, land costs, marketing and development costs and other similar costs the provider expects to incur or become obligated for prior to the commencement of operations;

(2) A description of any mortgage loan or other long-term financing intended to be used for the financing of the facility and the anticipated terms and costs of the financing;

(3) An estimate of the total amount of entrance fees to be received from or on behalf of residents at or prior to commencement of operation of the facility;

(4) An estimate of the funds, if any, which are anticipated to be necessary to fund start-up losses and provide reserve funds to assure full performance of the obligations of the provider under contracts for the provision of continuing care;

(5) A projection of estimated income from fees and charges other than entrance fees, a description of individual rates anticipated to be charged, the assumptions used for calculating the estimated occupancy rate of the facility and the effect on the income of the facility of government subsidies, if any, for health care services provided pursuant to the contracts for continuing care;

(6) A projection of estimated operating expenses of the facility, including a description of the assumptions used in calculating the expenses and separate allowances, if any, the replacement of equipment and furnishings and any anticipated major structural repairs or additions;

(7) Identification of assets pledged as collateral for any purpose; and

(8) An estimate of annual payments of principal and interest required by any mortgage loan or other long-term financing.

k. Other material information concerning the facility or the provider as required by the department or as the provider wishes to include.

l. The provider shall designate and make knowledgeable personnel available to prospective residents to answer questions about any information contained in the disclosure statement or contract. The provider shall also advise prospective residents to seek the independent advice of an attorney and financial advisor of their choice concerning the disclosure statement or contract. The disclosure statement and the contract shall each state on the cover or top of the first page in bold print the following: "This matter involves a substantial financial investment and a legally binding contract. In evaluating the disclosure statement and the contract prior to any commitment, it is recommended that you consult with an attorney and financial advisor of your choice, if you so elect, who can review these documents with you."

L. 1986, c. 103, s. 7.