A. A provider is responsible for ensuring that a continuing care contract is written in clear and understandable language.

B. A continuing care contract shall, at a minimum:

(1) describe the community's admission policies, including age, health status and minimum financial requirements, if any;

(2) describe the health and financial conditions required for a person to continue to be a resident;

(3) describe the circumstances under which the resident will be permitted to remain in the community in the event of financial difficulties of the resident;

(4) list the total consideration paid, including donations, entrance fees, subscription fees, periodic fees and other fees paid or payable; provided, however, that a provider cannot require a resident to transfer all the resident's assets or the resident's real property to the provider or community as a condition for providing continuing care and the provider shall reserve the right to charge periodic fees;

(5) describe in detail all items of service to be received by the resident, such as food, shelter, medical care, nursing care and other health services, and whether services will be provided for a designated time period or for the resident's lifetime;

(6) as an addendum to the contract, provide a description of items of service, if any, that are available to the resident but that are not covered in the entrance or monthly fee;

(7) specify taxes and utilities, if any, that the resident must pay;

(8) specify that deposits or entrance fees paid by or for a resident shall be held in trust for the benefit of the resident in a federally insured New Mexico bank until the resident has taken possession of the resident's unit or the resident's contract cancellation period has ended, whichever occurs later;

(9) state the terms under which a continuing care contract may be canceled by the resident or the community and the basis for establishing the amount of refund of the entrance fee;

(10) state the terms under which a continuing care contract is canceled by the death of the resident and the basis for establishing the amount of refund, if any, of the entrance fee;

(11) state when fees will be subject to periodic increases and what the policy for increases will be; provided, however, that the provider shall give advance notice of not less than thirty days to the residents before the change becomes effective and increases shall be based upon economic necessity, the reasonable cost of operating the community, the cost of care and a reasonable return on investment as defined by rules promulgated by the aging and long-term services department;

(12) state the entrance fee and periodic fees that will be charged if the resident marries while living in the community, the terms concerning the entry of a spouse to the community and the consequences if the spouse does not meet the requirements for entry;

(13) indicate funeral and burial services that are not furnished by the provider;

(14) state the rules and regulations of the provider then in effect and state the circumstances under which the provider claims to be entitled to have access to the resident's unit;

(15) list the resident's and provider's respective rights and obligations as to any real or personal property of the resident transferred to or placed in the custody of the provider;

(16) describe the rights of the residents to form a residents' association and the participation, if any, of the association in the community's decision-making process;

(17) describe the living quarters purchased by or assigned to the resident;

(18) provide under what conditions, if any, the resident may assign the use of a unit to another;

(19) include the policy and procedure with regard to changes in accommodations due to an increase or decrease in the number of persons occupying an individual unit;

(20) state the conditions upon which the community may sublet or relet a resident's unit;

(21) state the fee adjustments that will be made in the event of a resident's voluntary absence from the community for an extended period of time;

(22) include the procedures to be followed when the provider temporarily or permanently changes the resident's accommodations, either within the community or by transfer to a health facility; provided that the contract shall state that such changes in accommodations shall only be made to protect the health or safety of the resident or the general and economic welfare of all other residents of the community;

(23) if the community includes a nursing facility, describe the admissions policies and what will occur if a nursing facility bed is not available at the time it is needed;

(24) in the event the resident is offered a priority for nursing facility admission at a facility that is not owned by the community, describe with which nursing facility the formal arrangement is made and what will occur if a nursing facility bed is not available at the time it is needed;

(25) include the policy and procedures for determining under what circumstances a resident will be considered incapable of independent living and will require a permanent move to a nursing facility. The contract shall also state who will participate in the decision for permanent residency in the nursing facility and shall provide that the resident shall have an advocate involved in that decision; provided that if the resident has no family member, attorney, guardian or other responsible person to act as the resident's advocate, the provider shall request the local office of the human services department to serve as advocate;

(26) specify the types of insurance, if any, the resident is required to maintain, including medicare, other health insurance and property insurance;

(27) specify the circumstances, if any, under which the resident will be required to apply for any public assistance, including medical assistance, or any other public benefit programs;

(28) in bold type of not less than twelve-point type on the signature page, state that a contract for continuing care may present a significant financial risk and that a person considering a continuing care contract should consult with an attorney and with a financial advisor concerning the advisability of pursuing continuing care; provided, however, that failure to consult with an attorney or financial advisor shall not be raised as a defense to bar recovery for a resident in any claims arising under the provisions of the Continuing Care Act;

(29) in bold type of not less than twelve-point type on the front of the contract, state that nothing in the contract or the Continuing Care Act should be construed to constitute approval, recommendation or endorsement of any continuing care community by the state of New Mexico;

(30) in immediate proximity to the space reserved in the contract for the signature of the resident, in bold type of not less than twelve-point type, state the following:

"You, the buyer, may cancel this transaction at any time prior to midnight of the seventh day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right."; and

(31) contain a completed form, in duplicate, captioned "Notice of Cancellation", which shall be attached to the contract and easily detachable, and which shall contain in twelve-point boldface type the following information and statements in the same language as that used in the contract.

"NOTICE OF CANCELLATION

Date: ____________________________ (enter date of transaction)

You may cancel this transaction without any penalty or obligation within seven days from the above date. If you cancel, any payments made by you under the contract or sale and any negotiable instrument executed by you will be returned within ten business days following receipt by the provider of your cancellation notice, and any security interest or lien arising out of the transaction will be canceled.

To cancel this transaction, deliver a signed and dated copy of this cancellation notice or any other written notice, or send a telegram, to: _____________________________________ (Name of Provider)

at _________________________________________________________ (Address of Provider's Place of Business)

not later than midnight of _____________________ (Date)

I hereby cancel this transaction.

__________________________________________________ (Buyer's Signature)

________________________ (Date)".

History: Laws 1985, ch. 102, § 5; 2005, ch. 215, § 3; 2010, ch. 88, § 5.

The 2010 amendment, effective May 19, 2010, in Subsection A, at the beginning of the sentence, after "A", added "provider is responsible for ensuring that a"; in Paragraph (4) of Subsection B, after "transfer all the resident's assets", added "or the resident's real property"; in Paragraph (5) of Subsection B, after "designated period or for", deleted "life" and added "the resident's lifetime"; in Paragraph (8) of Subsection B, after "until the resident has", deleted "occupied his" and added "taken possession of the resident's"; and at the end of the sentence, added "whichever occurs later"; in Paragraph (11) of Subsection B, at the end of the sentence, deleted "no later than January 31, 2006"; in Paragraph (21) of Subsection B, after "state", added "the fee adjustments that will be made"; after "in the event of", added "a resident's"; and after "extended period of time", deleted "by the resident, what fee adjustments, if any, will be made"; in Paragraph (24) of Subsection B, at the beginning of the sentence, deleted "describe, if" and added "in the event"; and after "not owned by the community", added "describe"; in Paragraph (26) of Subsection B, after "resident", deleted "must" and added "is required to"; in Paragraph (27) of Subsection B, after "required to apply for", changed "medicaid public assistance, or any other" to "any public assistance, including medical assistance, or any other"; and in Paragraph (28) of Subsection B, after "twelve-point type on the", deleted "front of the contract" and added "signature page, state".

The 2005 amendment, effective June 17, 2005, deleted the former requirements in Subsection B(8) that payments be held in trust in a cash escrow account in a New Mexico trust company on a trust department of a federally insured New Mexico bank and that after the resident has notified the trustee that he has occupied his unit, the money, including interest, be released to the provider; added the provisions in Subsection B(8) that the trust be held for the benefit of the resident until the resident's contract cancellation period has ended, and provided in Subsection B(11) that economic necessity, the reasonable cost of operating the community, the cost of care and reasonable return on investment as defined by rule promulgated by the aging and long-term services department not later than January 31, 2006.

Reasonable rate of return on investment. — Non-profit continuing care facilities are required to consider a reasonable rate of return on investment before imposing rate increases. Bishop v. Evangelical Good Samaritan Soc'y, 2009-NMSC-036, 146 N.M. 473, 212 P.3d 361, rev'g 2008-NMCA-033, 143 N.M. 640, 179 P.3d 1248.

Not unconstitutionally vague. — The requirement that non-profit continuing care facilities base rate increases, in part, on a reasonable rate of return on investment is not unconstitutionally vague. Bishop v. Evangelical Good Samaritan Soc'y, 2009-NMSC-036, 146 N.M. 473, 212 P.3d 361, rev'g 2008-NMCA-033, 143 N.M. 640, 179 P.3d 1248.

Reasonable return on investment. — The Continuing Care Act does not require a non-profit organization to base fee increases on a reasonable return on investment. Bishop v. Evangelical Lutheran Good Samaritan Soc'y, 2008-NMCA-033, 143 N.M. 640, 179 P.3d 1248, rev'd by 2009-NMSC-036. 146 N.M. 473, 212 P.3d 361.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Plaintiff's rights to punitive or multiple damages when cause of action renders both available, 2 A.L.R.5th 449.