A. A provider shall furnish a current annual disclosure statement that meets the requirements set forth in Subsection B of this section and the aging and long-term services department's and attorney general's consumer's guide to continuing care communities to each actual resident and to a prospective resident at least seven days before the provider enters into a continuing care contract with the prospective resident, or prior to the prospective resident's first payment, whichever occurs first. For the purposes of this subsection, the obligation to furnish information to each actual resident shall be deemed satisfied if a copy of the disclosure statement and the consumer's guide is given to the residents' association, if there is one, and a written message has been delivered to each actual resident, stating that personal copies are available upon request.

B. The disclosure statement provided pursuant to Subsection A of this section shall include:

(1) a brief narrative summary of the contents of the disclosure statement written in plain language;

(2) the name and business address of the provider;

(3) if the provider is a partnership, corporation or association, the names, addresses and duties of its officers, directors, trustees, partners or managers;

(4) the name and business address of each of the provider's affiliates;

(5) a statement as to whether the provider or any of its officers, directors, trustees, partners, managers or affiliates, within ten years prior to the date of application:

(a) was convicted of a felony, a crime that if committed in New Mexico would be a felony or any crime having to do with the provision of continuing care;

(b) has been held liable or enjoined in a civil action by final judgment, if the civil action involved fraud, embezzlement, fraudulent conversion or misappropriation of property;

(c) had a prior discharge in bankruptcy or was found insolvent in any court action; or

(d) had a state or federal license or permit suspended or revoked or had any state, federal or industry self-regulatory agency commence an action against the provider or any of its officers, directors, trustees, partners, managers or affiliates and the result of such action;

(6) the name and address of any person whose name is required to be provided in the disclosure statement who owns any interest in or receives any remuneration from, either directly or indirectly, any other person providing or expected to provide to the community goods, leases or services with a real or anticipated value of five hundred dollars ($500) or more and the name and address of the person in which such interest is held. The disclosure shall describe such goods, leases or services and the actual or probable cost to the community or provider and shall describe why such goods, leases or services should not be purchased from an independent entity;

(7) the name and address of any person owning land or property leased to the community and a statement of what land or property is leased;

(8) a statement as to whether the provider is, or is associated with, a religious, charitable or other organization and the extent to which the associate organization is responsible for the financial and contractual obligations of the provider or community;

(9) the location and description of real property being used or proposed to be used in connection with the community's contracts to furnish care;

(10) a statement as to the community's or corporation's liquid reserves to assure payment of debt obligations and an ongoing ability to provide services to residents. The statement shall also include a description of the community's or corporation's reserves, including a specific explanation as to how the community or corporation intends to comply with the requirements of Section 24-17-6 NMSA 1978;

(11) for communities that provide type A and type B agreements, a summary of an actuarial analysis within the last five years and an annual future-service obligation calculation by an actuary who is a member of the American academy of actuaries and who is experienced in analyzing continuing care communities;

(12) an audited financial statement and an audit report prepared in accordance with generally accepted accounting principles applied on a consistent basis and certified by a certified public accountant, including an income statement or statement of activities, a cash-flow statement or sources and application of funds statement and a balance sheet as of the end of the provider's last fiscal year. The balance sheet should accurately reflect the deferred revenue balance, including entrance fees and any other prepaid services, and should include notes describing the community's long-term obligations and identifying all the holders of mortgages and notes;

(13) a sample copy of the contract used by the provider; and

(14) a list of documents and other information available upon request, including:

(a) a copy of the Continuing Care Act;

(b) if the provider is a corporation, a copy of the articles of incorporation; if the provider is a partnership or other unincorporated association, a copy of the partnership agreement, articles of association or other membership agreement; and if the provider is a trust, a copy of the trust agreement or instruments;

(c) resumes of the provider and officers, directors, trustees, partners or managers;

(d) a copy of lease agreements between the community and any person owning land or property leased to the community;

(e) information concerning the location and description of other properties, both existing and proposed, of the provider in which the provider owns any interest and on which communities are or are intended to be located and the identity of previously owned or operated communities;

(f) a copy of the community's policies and procedures; and

(g) other data, financial statements and pertinent information with respect to the provider or community, or its directors, trustees, members, managers, branches, subsidiaries or affiliates, that a resident requests and that is reasonably necessary in order for the resident to determine the financial status of the provider and community and the management capabilities of the managers and owners, including the most recent audited financial statements of comparable communities owned, managed or developed by the provider or its principal.

C. Each year, within one hundred eighty days after the end of the community's fiscal year, the provider shall furnish to actual residents the disclosure statement as outlined in this section. For purposes of this subsection, the obligation to furnish the required information to residents shall be deemed satisfied if the information is given to the residents' association, if there is one, and a written message has been delivered to each resident, stating that personal copies of the information are available upon request.

History: Laws 1985, ch. 102, § 4; 1991, ch. 263, § 9; 2005, ch. 215, § 2; 2010, ch. 88, § 4.

The 2010 amendment, effective May 19, 2010, in Subsection A, in the first sentence, at the beginning of the sentence, after "A", deleted "person who provides or offers to provide continuing care in this state" and added "provider"; after "provider shall furnish", changed "a current annual disclosure statement and a consumer's guide" to "a current annual disclosure statement that meets the requirements set forth in Subsection B of this section and the aging and long-term services department's and attorney general's consumer's guide"; and after "continuing care communities", changed "as furnished by the aging and long-term services department or the attorney general's office to actual residents and to a prospective resident at least seven days prior to entering into a continuing care contract with the prospective resident" to "to each actual resident and to a prospective resident at least seven days before the provider enters into a continuing care contract with the prospective resident, or prior to the prospective resident's first payment, whichever occurs first"; in Subsection A, in the second sentence, after "obligation to furnish information", changed "to actual residents shall be deemed satisfied if a copy is given" to "to each actual resident shall be deemed satisfied if a copy of the disclosure statement and the consumer's guide is given"; and after "message has been delivered to", deleted "all residents" and added "each actual resident, stating"; in Subsection B, in the introductory sentence, after "disclosure statement", added "provided pursuant to Subsection A of this section"; in Paragraph (4) of Subsection B, after "business address of", deleted "any affiliate" and added "each of the provider's affiliates"; in Subparagraph (d) of Paragraph (5) of Subsection B, after "commence an action against", deleted "him" and added "the provider or any of its officers, directors, trustees, partners, managers or affiliates"; in Paragraph (10) of Subsection B, in the first sentence, after "a statement as to", changed "whether the community maintains reserves" to "the community's or corporation's liquid reserves"; after "debt obligations and", deleted "the" and added "an ongoing"; and in the second sentence, at the beginning of the sentence, added "The statement shall also include"; after "a description of", deleted "such" and added "the community's or corporation's"; and after "community's or corporation's reserves", added the remainder of the sentence; in Paragraph (11) of Subsection B, at the beginning of the sentence, deleted "for those communities that charge an entrance fee that were not in operation on June 14, 1985 an" and added "for communities that provide type A and type B agreements, a summary of an"; after "actuarial analysis", deleted "of the community performed" and added "within the last five years and an annual future-service obligation calculation"; and after "by an actuary", added "who is a member of the American academy of actuaries and who is"; in Paragraph (12) of Subsection B, in the first sentence, added new language between "an audited financial statement" and "as of the end of the provider's last fiscal year"; after "as of the end of the provider's last fiscal year", deleted "or a copy of the previous year's tax filings with the internal revenue service"; and added the last sentence; in Subparagraph (g) of Paragraph (14) of Subsection B, after "pertinent information", deleted "requested by the resident"; after "subsidiaries, or affiliates", added "that a resident requests and"; and after "is reasonably necessary", added "in order"; and in Subsection C, in the second sentence, after "written message has been delivered to", deleted "all residents" and added "each resident".

The 2005 amendment, effective June 17, 2005, deleted the former provision in Subsection A which provided that advertising, representations or contractual provisions indicating that a nursing facility or hospital services the residents of independent living units or advertising that there is a close proximity of residential units to nursing or acute care units shall imply an agreement to provide or offer to provide continuing care; deleted the former provision of Subsection B(12) which required the audit report to be prepared in accordance with generally accepted accounting principles applied on a consistent basis and certified by a certified public accountant, including a cash flow statement or sources and application of funds statement and a balance sheet and a description of long-term obligations and the holders of mortgages and notes; provided in Subsection B(12) that the disclosure statement include an audited financial statement or a copy of the previous year's tax filing with the internal revenue service; deleted the former provision of Subsection C which required the provider to furnish a current financial statement and audit report prepared in accordance with generally accepted accounting principles applied on a consistent basis and certified by a certified public accountant, including a cash flow statement or sources and application of funds statement and a balance sheet and a description of the long-term obligations and any other changes in the disclosure statement required to be furnished by Subsection A; and provided in Subsection C that the provider shall provide the disclosure statement outlined in this section.

The 1991 amendment, effective June 14, 1991, in Subsection A, inserted the second sentence and deleted the former final sentence, which read "A community that is in operation on the effective date of the Continuing Care Act may have a grace period of not more than one hundred eighty days to prepare its disclosure statement"; and substituted "eighty days" for "twenty days" near the beginning of the first sentence in Subsection C.