CHAPTER Ins 1800 CONTINUING CARE
COMMUNITIES
Statutory
Authority: RSA 400-A:15; RSA 420-D:17
PART Ins 1801 PURPOSE AND SCOPE
Ins 1801.01 Purpose. The purpose of this chapter is to implement
RSA 420-D wherein the general court has provided for the regulation of
continuing care communities (CCCs) in order to protect
the citizens of the state, particularly senior citizens.
Source. #4666, eff 8-22-89; ss by #5654, eff 7-1-93;
ss by #7014, eff 7-1-99, EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
Ins 1801.02 Scope.
This chapter shall apply to all CCCs.
Source. #4666, eff 8-22-89; ss by #5654, eff 7-1-93;
ss by #7014, eff 7-1-99, EXPIRED: 7-1-07
New. #8991, eff 10-1-07 ss by #10944, eff 10-8-15;
ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
PART Ins 1802 DEFINITIONS
Ins 1802.01 Definitions.
(a) For the purposes of this chapter, the
definitions appearing under RSA 420-D:1 shall apply whenever any word or phrase
defined under RSA 420-D:1 is used in this chapter.
(b) With respect to the following words or
phrases used in this chapter, but which are not defined under RSA 420-D:1, the
following definitions shall apply:
(1) “Escrow date”, as used in RSA 420-D:10,
III(d), means the date entrance fees subject to RSA 420-D:10 are
placed in an escrow account pursuant to RSA 420-D:10;
(2) “General court” means the assembled senate
and house of representatives of the state of New Hampshire as constituted by
the constitution of the state of New Hampshire;
(3) “Health care provider” means any physician,
hospital, nursing home, visiting nurse association, or any other institution,
organization, or person who furnish health care services;
(4) “Health care services” means “health care
services” as defined in RSA 420-C:2, V;
(5) “Major changes”, means any change in or
affecting the operation of the CCC which causes or is estimated to cause an
increase or decrease of 10 percent or more in any line item appearing on either
the balance sheet, statement of income and expenses, or the statement of
changes in financial position submitted as part of the CCCs annual report
required by RSA 420-D:7. The term does
not include an increase or decrease in any line item of less than $1,000, the
percentage increase or decrease notwithstanding;
(6) “Market value” means, with respect to any
security or other asset which is tradable on a recognized financial exchange,
the closing price as of the last day the security or other asset was traded on
the exchange where the majority of trading in the security or other asset takes
place;
(7) “National Association of Insurance
Commissioners (NAIC)” means the organization of insurance regulators from the
50 states, the District of Columbia, and United States territories which
provides a forum for the development of uniform regulatory policy; and
(8) “Operating expenses” means total expenses
less depreciation and amortization expenses.
Source. #7014, eff 7-1-99, EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
PART Ins 1803 CERTIFICATE OF
AUTHORITY
Ins 1803.01 Application Procedures.
(a) All CCCs seeking a certificate of authority
shall file an application form, specified in (d) below, with the insurance
department.
(b) In addition to the information specified in
(c) below, the following additional information or supporting material shall
accompany each application:
(1) The disclosure statement as described under
RSA 420-D:4 and Ins 1808;
(2) A statement indicating any other state or
federal licensure or certification which the continuing care facility might
have or be required to have and the current status of such licensure or
certification;
(3) The appropriate application fee pursuant to
Ins 1809; and
(4) Notarized documents, which shall include the
name, address, telephone number, and principal business activities of the
escrow agent, indicating that an escrow account for entrance fees has been
established, when RSA 420-D:10 requires an escrow account for these fees.
(c) As part of the application process all CCCs
shall provide a biographical affidavit notarized by a notary public, from any
officer, trustee, investor, owner with more than 5 percent ownership, or
executive director, or equivalent title, who is not an officer or trustee, that
shall include the following:
(1) Specify whether the application is for a
certificate of authority, a new affiant, or a current affiant update;
(2) The name and address of the continuing care
provider;
(3) The name and position of the affiant;
(4) A listing of other names used by the affiant
at any time and the reason for, any name changes, if any, for the affiant;
(5) The affiant's business address, telephone
number, and cell phone number;
(6) The educational background of the affiant,
including the name and location of colleges or universities attended, the dates
of attendance, and any degrees earned;
(7) A listing of the affiant's membership in
professional societies and associations;
(8) The affiant's present or proposed position
with the provider;
(9) A listing of the complete employment record
of the affiant for the past 10 years, up to and including present position, and
shall include the dates of employment, the name and address of each employer
and the job title held, including any positions held as a company level officer
or director;
(10) A statement as to whether or not the present
employer may be contacted;
(11) A statement as to whether or not former
employers may be contacted;
(12) A statement as to whether or not the affiant
has ever been in a position which required a fidelity bond;
(13) If the answer to (12) above is affirmative,
and if any claims were made on the bond, the affiant shall state the details of
each such claim;
(14) A statement as to whether or not the affiant
has ever been denied an individual or position schedule fidelity bond or if any
such bond has ever been cancelled or revoked;
(15) If the answer to (14) above is affirmative, a
statement as to the details of each denial, cancellation, or revocation;
(16) A listing of the professional, occupational,
and vocational licenses issued by any public or governmental licensing agency
or regulatory authority which the affiant presently holds or has held in the
past, including the date the license was issued, the issuer of the license, the
date the license was terminated, and the reason for termination;
(17) A statement as to whether or not the affiant
has, within the last 10 years, been refused a professional, occupational, or
vocational license by any public or governmental licensing agency or regulatory
authority, or had any such license held suspended or revoked;
(18) If the answer to (17) above is affirmative,
the affiant shall state the details of each denial, cancellation, or
revocation;
(19) A listing of the continuing care providers or
health care facilities in which the affiant controls, directly or indirectly,
or owns legally or beneficially 10 percent or more of the outstanding voting
stock, in voting power;
(20) A statement by the affiant as to whether the
affiant or members of their immediate family will subscribe to or own,
beneficially or of record, any shares of stock in the continuing care provider
or in any affiliate of the continuing care provider;
(21) If any of the shares or stock noted in the
answer to (20) above are pledged or hypothecated in any way, the affiant shall
provide an explanation of these circumstances, including who the shares are
pledged to, the amount of the share pledged, and the total shares issued;
(22) A statement by the affiant as to whether or
not they have ever been adjudged bankrupt;
(23) A statement by the affiant, and the date,
nature, and place of the charge and outcome of if affirmative, as to whether
the affiant has ever been convicted or had a sentence imposed or suspended or
had pronouncement of a sentence suspended or been pardoned for conviction of or
pleaded guilty or nolo contendre to an information or
indictment charging any felony, or charging a misdemeanor involving
embezzlement, theft, larceny, or mail fraud, or charging a violation of any
corporate securities statute or any insurance law;
(24) Whether the affiant has ever been the subject
of any disciplinary proceedings of any federal or state regulatory agency, and
the date, nature, and place of the charge and outcome if affirmative;
(25) A statement by the affiant as to whether or
not any company has ever been charged as in (23) above, allegedly as a result
of any action or conduct on the part of the affiant;
(26) A statement by the affiant as to whether or
not the affiant has ever been an officer, director, trustee, investment
committee member, key employee, or controlling stockholder of any company or
organization which, while the affiant occupied any such position or capacity
with respect to it, became insolvent or was placed under supervision or in
receivership, rehabilitation, liquidation, conservatorship, or filed
bankruptcy;
(27) A statement by the affiant, and the date,
nature of the suspension and disposition if affirmative, as to whether or not
the certificate of authority or license to do business of any provider or
company of which the affiant was an officer, or director or key management
person has ever been suspended or revoked while the affiant occupied such
position; and
(28) A dated signature of the affiant by which the
affiant certifies that they are acting on their own behalf and that the
foregoing statements are true and correct to the best of the affiant's
knowledge and belief.
(d) The applicant shall provide, in addition to
the requirements of RSA 420-D:2, III, the following information on the
“Application for Permanent Certificate of Authority as a Continuing Care
Facility”:
(1) The continuing care facility’s name, type of
business organization, and state law under which the business is organized;
(2) The facility's home address, if within the
United States, or the United States branch office if the home address is
outside of the United States;
(3) The principal mailing address;
(4) Whether the department ever issued a
temporary certificate of authority to the applicant and, if yes, the date of
expiration;
(5) Certification that the applicant, if issued a
certificate of authority, will abide by the applicable rules of the department;
(6) Certification that the applicable
requirements of RSA 420-D have been met;
(7) Whether the license or authority of the CCC
facility, or affiliated facility of a controlling organization, has ever been
revoked, suspended, or canceled in any jurisdiction;
(8) Whether any previous application of the CCC
facility, or affiliated facility of a controlling organization, for a license
or authority has been denied in any jurisdiction; and
(9) If an affirmative answer is given to the
information requested in (7) or (8) above, the details of any revocation,
suspension, cancellation, or denial.
(e) The commissioner shall act upon applications
received within a reasonable time, as set forth in RSA 541-A:29, II(a).
(f) CCCs who have applications pending shall keep
their application and any accompanying information or supporting material
current, and file any amendments or other changes on a timely basis.
(g) Any applicant whose application is rejected
shall be entitled to a hearing in accordance with the provisions of RSA 541,
RSA 541-A, and Ins 200 and shall be so notified.
Source. #7014, eff 7-1-99, EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
Ins 1803.02 Revocation or Suspension.
(a) The commissioner shall not revoke or suspend
a certificate of authority issued to any CCC except upon notice and hearing and
written findings of fact that one or more of the conditions specified in RSA
420-D:5, I exist.
(b) Any hearing which the commissioner shall
convene in order to exercise the power granted by RSA 420-D:5 shall be
considered as an adjudicative proceeding as defined under RSA 541-A:1, I.
(c) Such proceedings shall be governed by the
following:
(1) In proceeding against any CCC for the purpose
of revoking or suspending its certificate of authority, the commissioner shall
provide the CCC with reasonable notice of hearing. Such notice of hearing shall
be in accordance with RSA 541-A:31, III and Ins 200;
(2) Hearings conducted pursuant to RSA 420-D:5
and this section shall be conducted pursuant to all relevant provisions of RSA
541-A and Ins 200;
(3) Any prehearing conferences shall be held
pursuant to Ins 200; and
(4) The findings of the hearing officer and any
order upon such findings shall be made pursuant to RSA 541-A:35 and Ins 200.
(d) When pursuant to RSA 420-D:5, I(j) the
commissioner finds that a condition that is hazardous or injurious to residents
or to the general public requires emergency action, the commissioner, as
authorized under RSA 541-A:30, III, shall order an immediate suspension of a
certificate of authority. In so doing,
the commissioner shall proceed according to Ins 200.
(e) Requests for rehearings
shall be made in writing and shall be made pursuant to the provisions of RSA
541. All appeals from orders issued by
the hearing officer shall be made pursuant to RSA 420-D:6 and in
accordance with the provisions of RSA 541.
Source. #7014, eff 7-1-99, EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
PART Ins 1804 ANNUAL REPORTS
Ins 1804.01 Annual Reports.
(a) Each CCC who uses the calendar year as its
fiscal year shall submit a report on or before May 1 of each year, detailing
its fiscal status as of the close of business on December 31 of the just
completed calendar year.
(b) Each CCC who uses an annual period other than
the calendar year as its fiscal year shall submit a report detailing its
financial status as of the close of business on the last day of its fiscal year
within 120 days after the close of the fiscal year.
(c) CCCs shall file annual reports in accordance
with RSA 420-D:7.
(d) Upon written notice to the CCC, the
commissioner shall require the CCC to submit any journals, ledgers, or other
records which serve as back-up material for any one or more of the financial
statements listed in RSA 420-D:7. The
commissioner shall make such requests whenever it is necessary to verify the
accuracy of the financial statements included as part of the CCCs annual
report.
(e) To be considered complete upon submission,
the annual reports included under (c) above shall include complete answers to
all general interrogatories and all notes to the financial statements which are
considered customary or necessary to full disclosure and adequate understanding
of the financial statements, the financial condition of the CCC, and the
operation of the CCC.
(f ) The financial statements shall be accompanied
by a statement of actuarial opinion indicating whether the data and assumptions
used are appropriate, whether the methods employed are consistent with sound
actuarial principles and practices, and whether provisions have been made for
all actuarial liabilities and related statement items which ought to be
established.
(g) The actuarial opinion shall also contain
appropriate comment on the CCCs perceived ability to operate the CCC as a going
concern and the impact of any actuarial deficit. If the actuary is unable to form a needed
opinion, or if the opinion is adverse or qualified, the statement of actuarial
opinion shall specifically state the reason.
The actuarial opinion shall be rendered by a qualified actuary as
defined in Ins 901.02.
Source. #7014, eff 7-1-99; amd
by #7994, eff 12-1-03; ss by #8991, eff 10-1-07; ss by #10944, eff 10-8-15; ss
by #14640, eff 6-27-26, EXPIRES: 6-27-36
Ins 1804.02 Quarterly Reports. The CCC shall submit quarterly reports as
provided in RSA 420-D:7-a within 45 days of the close of each quarter
containing the information required by RSA 420-D:7-a.
Source. #14640, eff 6-27-26, EXPIRES: 6-27-36
PART Ins 1805 LIQUID RESERVES
Ins 1805.01 Liquid Reserves.
(a) When a CCC calculates whether the value of
its liquid reserves meets the amount RSA 420-D:8 requires, the CCC may include
the values of the assets listed below:
(1) Cash held in an account of a financial
institution; or
(2) The following assets that can be liquidated,
based upon the net value after liquidation:
a. Certificates of deposit issued by a financial
institution;
b. Money-market funds issued by an investment
company as defined by U.S.C. Title XV, Section 80a-3;
c. Acceptable negotiable securities which shall
include only United States government obligations and corporate debt
obligations rated A or above in Moody's or Standard and Poor's corporate bond
rating publication or a 1 or 2 rating by the NAIC valuation of securities
publication;
d. Commercial paper in the form of promissory
obligations of an issuer with an original maturity date not exceeding 9 months
from the date of issuance, having the highest rating in a rating publication
indicated in c. above;
e. Equity securities including mutual funds; and
f. Lines of credit and letters of credit.
(b) For the purpose of determining whether the
assets included in the liquid reserve account of a CCC satisfy the liquid
reserve requirement of RSA 420-D:8, such assets held in the form of cash shall
be valued at their actual value in U.S. currency. Assets held in any other form
shall be valued at their market value.
(c) For the purpose of determining the amount of
the liquid reserve that a CCC shall maintain, the term “12 months principal and
interest payments” appearing in RSA 420-D:8 means the CCCs liabilities which would be reported to show
the statutory liquid reserve as of the end of current year on the balance sheet
that would be included with the actuarial report, as required by Ins 1804, as
if an actuarial report had been prepared for the 12 calendar months ending on
the last day of the previous month.
(d) For the purpose of determining the amount of
the liquid reserve that a CCC shall maintain, the term “that portion of 2
months' operating expenses which relates to life care residents” appearing in
RSA 420-D:8 means the amount of the estimated operating expenses for the 2
calendar months following the current month.
(e) The liquid reserve required at any point in
time shall be the sum of the amounts determined in accordance with (c) and (d)
above. This amount shall be referred to as the minimum liquid reserve.
(f) If it is in the best interest of the
residents, the commissioner shall require a CCC to maintain its liquid reserves
in an escrow account if the facility is determined to be in financial
difficulty. This requirement shall be integrated into the CCC's financial plan
pursuant to RSA 420-D:15-a.
(g) For the purpose of (f) above, financial
difficulty shall include, but not be limited to, any one or more of the
following circumstances:
(1) Payments on accounts payable or notes payable
being made on average 45 days or more after the due date;
(2) A tax lien is filed against the CCC;
(3) Fifty percent of accounts receivable, except
Medicare or Medicaid, average more than 45 days; and
(4) Days-cash-on-hand drops below 100 days or
occupancy of independent living drops below 80 percent, or both.
(h) All such escrow accounts shall comply with
the rules for entrance fee escrow accounts as set forth under Ins 1807. In the course of establishing an escrow
account, the CCC shall advise the commissioner as to the name, address,
telephone number, and principal business activities of the escrow agent. The CCC shall notify the commissioner of any
subsequent change in escrow agent by providing the name, address, telephone
number, and principal business activities of the new escrow agent within 5
business days.
Source. #7014, eff 7-1-99, EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
Ins 1805.02 Days-Cash-On-Hand Calculation.
(a) “UC” means unrestricted current and
noncurrent cash.
(b) “BTHR” means bond or lender held reserve
funds.
(c) “IN” means investments.
(d) “Ex” means operating expenses.
(e) “Dep” means depreciation.
(f) “Am” means amortization.
(g) To calculate days-cash-on-hand, the
commissioner shall calculate the sum of UC and BTHR and IN and divide this
result by the quotient of Ex minus Dep minus Am divided by 365, as in the
following formula:
UC + BTHR + IN
(Ex-Dep-Am)/365
Source. #10944, eff 10-8-15; ss by #14640, eff
6-27-26, EXPIRES: 6-27-36
PART Ins 1806 PROCEDURES FOR
OBTAINING AND EXTENDING LIENS
Ins 1806.01 Procedures for Obtaining and Extending
Liens.
(a) If it is in the best interest of the
residents, the commissioner shall file a lien on all real and personal property
of a CCC, pursuant to RSA 420-D:9, whenever the commissioner has evidence
showing that the CCC has breached its contracts with residents or is engaged in
activity which is harmful to residents' physical or mental well-being. Any such lien shall be filed and administered
in accordance with all applicable laws respecting such liens.
(b) When the commissioner forecloses a lien, the
commissioner shall prepare a plan to distribute any proceeds from the
foreclosure in a manner that will best permit the satisfaction of any resident
contracts in effect at that time. The
commissioner shall give a written copy of this plan to each contract holder
affected by the foreclosure and shall allow contract holders to comment on the
plan before the commissioner distributes any proceeds. The commissioner shall allow affected
contract holders to submit comments for a period of at least 15 days after the
date on which the commissioner mailed copies of the plan.
(c) With respect to the lien property, liens
established by the commissioner shall not have priority over mortgages,
security agreements, lease agreements, or installment sales agreements on
property otherwise encumbered which a CCC has entered into with an issuer of
bonds or notes and bonds which are secured by resolution, ordinance, or
indenture of trust if such mortgages or agreements were duly recorded at least
4 months prior to the institution of rehabilitation or liquidation proceedings.
Source. #7014, eff 7-1-99; EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
PART Ins 1807 ENTRANCE FEE ESCROW
ACCOUNTS
Ins 1807.01 Entrance Fee Escrow Accounts.
(a) Escrow accounts established to hold entrance
fees pursuant to RSA 420-D:10, or accounts required by the commissioner to hold
liquid reserves, shall comply with each of the following:
(1) Escrow account funds shall be kept and
maintained in an account separate and apart from the business account of the
CCC;
(2) All escrow account funds derived from
entrance fees shall remain the property of the resident, prospective resident,
or other person making payment on behalf of a resident or prospective resident
and shall not be subject to any liens or charges by the escrow agent, or
judgments, garnishments, or creditor's claims against the CCC, until the funds
have been released to the CCC as provided in RSA 420-D:10;
(3) Interest in an escrow account may be released
to a CCC when any portion of the corresponding entrance fee is released to the
CCC or when the resident makes their first monthly payment, whichever occurs
first;
(4) All records pertaining to the escrow account
shall be available for inspection or audit by the commissioner at any time;
(5) Any CCC that establishes an escrow account
with an escrow agent shall enter into a written agreement with the escrow agent
which:
a. States that its purpose is to protect the
resident or prospective resident;
b. Authorizes the commissioner to inspect the
records of the escrow agent relating to the escrow account; and
c. Provides that, upon order of the commissioner
or a court of competent jurisdiction, the escrow agent shall release and pay
over the funds, or a portion thereof, to the CCC, resident, prospective
resident, or other person entitled thereto as ordered; and
(6) A copy of each escrow agreement entered into
by the CCC shall be filed with the commissioner for approval.
(b) When the escrow agent releases funds to a
CCC, the agent shall adhere to the requirements of RSA 420-D:10.
(c) In lieu of maintaining entrance fee payments
in escrow accounts, a CCC may, upon the commissioner's approval, post bond,
negotiable securities, or a letter of credit, with the commissioner.
(d) Approval of the commissioner shall be subject
to the following conditions:
(1) The institution providing the bond or the
letter of credit shall be acceptable to the commissioner. In the case of a
letter of credit, the institution issuing the letter of credit shall be a
qualified United States financial institution as defined in RSA 406-C:2,
IV. In the case of a bond, the surety
institution issuing the bond shall be acceptable if it is a surety company
authorized to transact business in New Hampshire;
(2) The amount of the bond, negotiable
securities, or line of credit specified in the letter of credit shall be set by
the commissioner as provided in (5) below;
(3) Negotiable securities posted in lieu of
escrow shall, for the purpose of determining if they satisfy the amount set by
the commissioner, be valued at 75 percent of their market value. After posting
the initial negotiable securities, the CCC shall be responsible for monitoring
the market value of the negotiable securities on deposit;
(4) Should the negotiable securities on deposit
at any time be valued at less than 133.3333 percent of the amount required, the
CCC shall post additional negotiable securities as required so that the
negotiable securities posted shall at all times be equal to 133.3333 percent of
the amount required. Negotiable
securities posted shall be securities that are tradable on the New York Stock
Exchange, the American Stock Exchange, or other comparable securities exchange;
(5) In setting the initial amount required for
the bond, negotiable securities, or the line of credit specified in the letter
of credit, whichever is to be posted, the commissioner shall take into
consideration the amount of the entrance fees, interest accrued thereon, and
other fees to be charged in addition to the number of life interest or
long-term leases to be offered, granted, or sold. The commissioner shall revise the amount
required to be held in escrow using the same procedure used to set the initial
amount required upon review of the CCCs most recent financial statements;
(6) The CCC requesting that the commissioner
approve posting of a bond, negotiable securities, or letter of credit in lieu
of maintaining escrow accounts shall demonstrate to the commissioner that it
meets a high standard of financial worthiness;
(7) To demonstrate that it meets the required
standard, the CCC shall provide the commissioner with data showing either:
a. That its standard financial statement ratios
are better than the industry-wide continuing care facility average by 25
percent or more; or
b. That its liquid assets as shown on the most
recent balance sheet, but not including the liquid reserve as determined under
Ins 1805, are equal to 300 percent of the amount set by the commissioner for
the bond, negotiable securities, or letter of credit to be posted;
(8) The commissioner shall be a party to any bond
posted;
(9) No bond posted shall be cancelled except with
90 days prior notice to the commissioner; and
(10) CCCs posting negotiable securities with the
commissioner shall file a “Custodial Agreement”.
(e) A CCC posting negotiable securities shall
deposit said securities in a custodial account to be held by the custodian in
trust for the benefit and security of policyholders, claimants, or creditors of
the CCC.
(f) A custodial agreement shall:
(1) Be signed by the facility and the custodian;
(2) State the amount maintained on deposit with
the custodian;
(3) Hold securities placed in the custodian
account exclusively for the commissioner as trustee in trust for the benefit of
New Hampshire policyholders, claimants, or creditors with a claim against the
facility;
(4) Provide that non-registered securities may be
held as follows:
a. Coupon/bearer form;
b. At book entry in a federal reserve bank; or
c. At the depository trust company as either a
direct bank or indirect depository participant;
(5) Require all registered securities be
held and registered as follows:
a. Under the name “Insurance Commissioner of New
Hampshire in Trusts for the Benefit and Security of all Policyholders and
Claimants of the ______ in the United States”; or
b. In the name of the custodian bank’s nominee,
without impairing the custodian’s responsibility to the company.
(6) Provide that the custodian is liable to the
facility and the commissioner for the custodian's negligence, willful
misconduct, or lack of good faith;
(7) Provide that no securities in the account nor
any principal is released except upon written request of the facility and
written assent to or in the name of the commissioner;
(8) Provide that the facility may withdraw
securities from the account, with the approval of the commissioner;
(9) Provide that the commissioner will approve
withdrawals under the circumstances in (8) above so long as other securities
are deposited with the custodian with market value equal to those withdrawn;
(10) Provide that the custodian may surrender any
security held under the agreement for payment upon maturity or redemption so
long as the proceeds thereof are held in a principal cash account maintained as
part of the custodial account in accordance with the custodial agreement;
(11) Provide that all transactions and withdrawals
involving deposited securities or principal cash be consummated only upon prior
receipt of instructions from the company and written assent of the commissioner
as trustee;
(12) Provide that the custodian send advice to the
commissioner of security and cash transactions within 10 days after a
transaction, with a copy to the company;
(13) Provide that the custodian shall send advices
with respect to all income transactions to the company only;
(14) Provide that the custodian send to the
commissioner a certificate of account assets by February 1 for the preceding
calendar year through December 31;
(15) Provide
that all income collected on or received from the securities held under the
agreement shall be paid to or upon the order of the company;
(16) Provide
that upon the written direction of the commissioner, pursuant
to an order of a court of competent jurisdiction, the custodian shall
turn the deposits held under this agreement over to the commissioner
or in accordance with the court order or direction of the
commissioner;
(17) Provide
that the custodian shall be accountable to the commissioner of insurance for
the safekeeping of the securities and principal cash held by it under this
agreement;
(18) Provide
that, as often as the commissioner or company requests, the custodian
shall prepare a certificate concerning the assets in the account as of the date
of the request and deliver such certificate to the commissioner with
a copy to the company;
(19) Include
a provision that the custodian may cancel this agreement, effective not less
than 30 days after receipt of notice thereof by the company and the
commissioner, and the company may cancel this agreement at any time
without any reason, effective upon the receipt of notice from the custodian and
the commissioner, provided that no cancellation by either party will
be effective until:
a. A new custodian agreement is executed by the
company with another custodian, approved by the commissioner;
and
b. The securities and principal cash in the
custodian account as transferred to the newly designated custodian in
accordance with written instructions from the company, provided that
if no new custodian agreement is entered into, the current agreement might be
cancelled and the securities and any balance in the principal cash account
released to the commissioner;
(20) Include
a provision that any successor in interest of the custodian, or receiver,
liquidator or other public officer appointed to administer the affairs of
the custodian, shall succeed to all the obligations assumed by the
custodian in the agreement; and
(21) Include
a provision that the agreement shall become effective when executed by the
parties.
Source. #7014, eff 7-1-99; EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; amd by #12912, eff 10-28-19; ss by #14640,
eff 6-27-26, EXPIRES: 6-27-36
PART Ins 1808 STANDARDS FOR
RESIDENT CONTRACT AND DISCLOSURE STATEMENTS
Ins 1808.01 Requirements for Documents.
(a) Documents given to residents and prospective
residents, including contracts with residents and disclosure statements, shall:
(1) Use language that a person of average
intelligence and education can read and understand;
(2) Present information in a logical sequence and
in a clear and direct fashion;
(3) Avoid complex and compound sentences;
(4) Use words in a manner which shall convey
their commonly understood meanings;
(5) Include definitions for words or terms which
cannot properly be explained or qualified in the text;
(6) Capitalize a defined word in any contract or
disclosure statement;
(7) Use frequent section headings to permit ease
in locating provisions;
(8) Be printed in easily legible typeface; and
(9) Contain an index, which shall be either the
first page of the document or whose location shall be noted on the first page
of the document, which lists all section headings used in the document if the
document is more than one page in length.
(b) If pre-existing conditions are excluded from
the medical care and services available from the CCC, but are available at an
additional charge or are limited as to coverage, the term pre-existing
condition shall not limit coverage beyond that stated in the following:
"A pre-existing
condition is a disease, illness, sickness, or physical condition for which
medical care, advice, or treatment was recommended by or received from a
physician within the 2 year period preceding the date the CCC committed itself
to accept the individual as a resident."
Source. #7014, eff 7-1-99; EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
Ins 1808.02 Resident Contract Standards.
(a) All contracts between a CCC and a resident
shall be executed on a form which has been previously approved by the
commissioner. To obtain approval for the
contract form, the CCC shall provide the commissioner, via email, with a copy
of the proposed contract form in PDF format and a cover letter. The cover
letter shall provide a brief description of the main features of the contract
form. Upon review of the proposed
contract form, the commissioner shall notify the CCC of approval or disapproval
of the form. When the contract forms are submitted, the CCC shall also submit
to the commissioner the fee required by Ins 1809. After the fee has been received, the
commissioner shall approve the proposed contract form if the commissioner finds
that it complies with all requirements of RSA 420-D and Ins 1808.01.
(b) Each contract with a resident shall have
attached a separate page notifying prospective residents of their right to
rescind the contract, as follows:
(1) The notice shall indicate the date the
rescission period begins;
(2) The notice shall include a statement to the
effect that the prospective resident may rescind and terminate their contract
or agreement, without penalty or forfeiture, within 15 days of the date the
rescission period begins, as specified in (1) above;
(3) The notice shall include a statement that the
prospective resident is not required to move into the CCC before the expiration
of the 15 day rescission period and that no other agreement or statement signed
by the prospective resident shall constitute a waiver of the right to rescind
the contract or agreement within the 15 day rescission period;
(4) The notice shall include instructions
advising the prospective resident who wishes to rescind their contract or
agreement that:
a. The prospective resident may by mailing or
delivering a signed and dated copy of the notice, or any other dated written
notice, email, letter, or facsimile, stating the prospective resident’s desire
to rescind the contract or agreement to the CCC; and
b. Such notice to the CCC must be sent
electronically or mailed to the business address of the CCC not later than
midnight of the date of the last day for rescission, as specified on the notice
by the CCC; and
(5) The notice shall include a form that the
prospective resident can use to notify the CCC that the prospective resident is
canceling the contract or agreement, as permitted by the notice of the right to
rescind. This form shall include a line where the prospective resident may
place their signature and write in the date of signature.
(c) Each
contract shall set forth the terms and conditions governing the return of the
resident’s entrance fee. The contract
shall control when the entrance fee shall be returned to the resident, except
as provided in (d).
(d) If
hardship exists, the entrance fee, if any, based on the terms of the contract,
shall be returned as follows:
(1) No later than 12 months from the date of the
termination if the CCC is at 80% or greater occupancy; or
(2) No later than 24 months from the date of the
termination if the CCC is at less than 80% occupancy.
(e) For
purposes of this section “hardship” means:
(1) A change in circumstances that has
necessitated the termination of the contract between the resident and the CCC;
(2) The resident, as a result of a change in
circumstances, cannot obtain acceptable living accommodations or health care
services from the CCC; and
(3) The resident cannot otherwise pay for such
necessary room, board, or health care services outside the CCC without a return
of the entrance fee under the terms of the contract.
(f) For
the purposes of paragraph (e), “acceptable living accommodations” means living
arrangements that:
(1) Are within the financial means of the
resident;
(2) Provide for needed health care services,
including mental health services; and
(3) Respect and reflect the right of the resident
to self-determination, dignity, religious affiliations, freedom of association,
and other personal interests as those interests are described in patient and
senior citizens’ bill of rights laws such as RSA 151:21 and RSA 161-M:3.
(g)
Contracts subject to paragraph (d) shall state that in the event of a
dispute as to the existence of hardship, the CCC shall provide the resident
with a written notice stating the grounds for its denial, and shall include the
following statement: “We will of course,
be available to you to discuss the position we have taken. Should you, however, wish to take this matter
up with the New Hampshire Insurance Department, it maintains a consumer service
division to investigate resident complaints at 21 South Fruit Street, Suite 14,
Concord, New Hampshire 03301. The New
Hampshire Insurance Department may be reached, toll-free, by dialing
1-800-842-3416.”
(h) If
the CCC contract does not provide for assisted living, skilled nursing care, or
nursing home care, the contract shall state this prominently, on the first page
of the contract and in at least 14-point bold capital letters. This statement
shall be preceded by the following caption:
“THIS
CONTRACT DOES NOT PROVIDE YOU WITH ANY RIGHT TO RECEIVE THE FOLLOWING CARE”
(i) The CCC shall
submit to the commissioner for approval any revision or amendment to an
approved contract form. This submission shall include a copy of the revised
contract or amendment form in PDF format and a cover letter. The cover letter shall list and describe each
amendment or revision to the previously approved contract form. Upon review of the amendment or revision to
the contract form, the commissioner shall notify the CCC of approval or
disapproval of the form. The
commissioner shall approve the amendment or revision to the contract form if
the commissioner finds that they comply with all requirements of RSA 420-D and
this part.
(j) When submitting either a proposed contract
form, amendments, or revisions to a contract form to the commissioner for
approval, the CCC shall, in a supplement to the cover letter, list every
instance where the contract form will use variable language. In this supplement, the CCC shall describe
the complete range of variable language that will appear in the contract form
for each instance listed.
(k) All contracts with residents shall be printed
in 12 point type or larger and shall be prepared in a manner to ensure legibility
and ease of reading.
(l) A valid and binding contract with a resident
shall be signed by the CCC and each resident who is admitted to the CCC. An
authorized representative may sign the contract with a resident on behalf of
either party.
(m) If the resident has agreed to purchase, at an
additional price, optional products or services beyond those included in the
entrance and periodic fees, a separate page shall be attached specifying the
product or service purchased, and the cost of each including any installation
charge. Each such separate page shall be
executed by the parties identified in paragraph (l).
(n) The contract with resident shall be
distributed as follows:
(1) A copy of the current contract with resident
form shall be attached as an appendix to each disclosure statement or amended
disclosure statement filed with the commissioner;
(2) A copy of the current contract with resident
form shall be attached to each disclosure statement given to a prospective
resident, unless the individual previously received a disclosure statement with
a current contract with resident form attached thereto;
(3) A copy of the current contract with resident
form may be given to current residents; and
(4) If a contract with resident form is not
attached to the disclosure statement, as authorized under paragraph (2) above,
a separate page shall be attached stating that a copy of the contract with
resident form was omitted.
(o) Each CCC shall maintain copies of each
contract with resident form it has executed with a resident until the
conclusion of the next succeeding audit by the department following the date
the contract ceases to be in force.
Source. #7014, eff 7-1-99; EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
Ins 1808.03 Disclosure Statements.
(a) A CCC shall submit all disclosure statements
to the commissioner for prior approval. No CCC shall distribute a disclosure
statement in any manner to prospective residents, residents, or residents'
authorized representatives, until the commissioner has approved the format of
the disclosure statement.
(b) To obtain approval for the disclosure
statement, the CCC shall submit to the commissioner:
(1) A copy of the proposed disclosure statement;
(2) A cover letter, which shall briefly describe
the main features of the disclosure statement; and
(3) The examination fee required by Ins 1809.
(c) The commissioner shall approve the proposed
disclosure statement if the commissioner finds that it complies with all
requirements of RSA 420-D and this part.
(d) The commissioner shall notify the CCC when
the commissioner has approved or disapproved the disclosure form.
(e) The CCC shall submit to the commissioner for
the commissioner’s approval any revision or amendment to an approved disclosure
statement. This submission shall include
a copy of the revised disclosure statement or amendment thereto, a cover
letter, and the fee required by Ins 1809.
The cover letter shall list and describe each amendment or revision made
to the previously approved disclosure statement. Upon review of the amendment or revision to
the disclosure statement, the commissioner shall notify the CCC of the
commissioner’s approval or disapproval.
The commissioner shall approve the amendment or revision to the disclosure
statement if the commissioner finds that it complies with all requirements of
RSA 420-D and this part.
(f) In addition to the requirements of RSA
420-D:4 and Ins 1808.01, the disclosure statement shall comply with the
following rules:
(1) The disclosure statement shall include a
statement advising the prospective resident that New Hampshire law requires the
CCC to provide the prospective resident with a disclosure statement before the
initial transfer of funds and before the prospective resident consents to any
contract with the CCC; and
(2) The notice required by RSA 420-D:4, I shall
appear on the cover page of the disclosure statement in a prominent location
and typeface.
(g) Changes in the operation of a CCC which
require an amendment to the disclosure statement shall include the following:
(1) Changes in the board of directors, officers,
managing or general partners, administrators or trustees, and managers which
affect the management of the CCC. The CCC shall file biographical affidavits by
these individuals with the commissioner at the time the CCC submits an amended
disclosure statement;
(2) Any new or additional mortgages, liens,
security interests, loan commitments, long-term financing arrangements, or
leases, which materially affects the real property of the CCC. The CCC shall
file a copy of all pertinent documents evidencing the transactions with the
commissioner at the time the CCC submits an amended disclosure statement; and
(3) Other material changes in the financial or
factual information contained in the disclosure statement or any statement in
support of the CCCs original application for a certificate of authority. The
CCC shall file explanatory material and copies of pertinent documents
concerning the material changes with the commissioner at the time the CCC
submits an amended disclosure statement.
(h) All disclosure statements shall be printed in
12 point type or larger.
Source. #7014, eff 7-1-99; EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
PART Ins 1809 FEES
Ins 1809.01 Fees.
(a) Upon each application for a permanent
certificate of authority, the applicant shall pay a fee of $800.00 to the state
of New Hampshire.
(b) Upon each filing of the annual report as
required pursuant to Ins 1804, the CCC shall pay a fee of $800 to the state of
New Hampshire.
(c) A CCC shall pay a fee of $80.00 to the state
of New Hampshire for each separate resident contract submitted for review by
the commissioner.
(d) Upon each application for a new certificate
of authority required pursuant to RSA 420-D:13, II, when management control of
more than 50% of the assets of a facility are transferred to another party, the
applicant shall pay a fee of $400.00 to the state of New Hampshire.
(e) When the commissioner audits or investigates
a CCC pursuant to RSA 420-D:23 or RSA 420-D:21, the CCC shall bear the expense
of the audit or investigation as follows:
(1) The commissioner shall present quarterly
bills for the expenses charged to all CCCs who have been audited or who are
scheduled for audits in the current fiscal year of the insurance department.
The first 3 quarterly bills shall be estimated bills. The final quarterly bill
shall be for actual charges made that fiscal year;
(2) The CCC shall be liable for the expenses
associated with an audit or investigation in accordance with RSA 400-A:37. However, the per diem allowance to compensate
state employees under RSA 400-A:37, VII, exclusive of expenses, shall not
exceed $1,000; and
(3) All such expenses of an audit or
investigation charged and billed shall be payable to the state of New Hampshire
except as provided by RSA 400-A:37.
Source. #7014, eff 7-1-99; EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
PART Ins 1810 AUDITS
Ins 1810.01 Audits.
(a) The commissioner shall audit the books and
records of each licensed CCC at least once every 5 years.
(b) Upon completion of any audit conducted by the
commissioner, a written audit report shall be prepared.
(c) The audit report shall be submitted to the
CCC audited. The CCC may object to the report within 30 days from the receipt
thereof. Any such objection shall take the form of a request for a hearing in
compliance with the procedures described under Ins 200.
(d) When the CCC has raised an objection to the
audit report, the commissioner shall hold a hearing in compliance with the
hearing procedure established by Ins 200 and RSA 541-A:30-a through RSA
541-A:38.
(e) The audit report and all information obtained
or produced in the conduct of the audit shall be governed by the
confidentiality provisions of RSA 400-A:37.
Source. #7014, eff 7-1-99; EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
PART Ins 1811 TRANSFER OR SALE OF
INTEREST
Ins 1811.01 Transfer or Sale of Interest.
(a) When a transfer or sale of interest is
proposed, the commissioner shall receive notice pursuant to RSA 420-D.
(b) Such notice shall include:
(1) A biographical affidavit, described in Ins
1803.01(c), for any proposed new officer, trustee, investor, owner with more
than 5% ownership, or new executive director, or equivalent title, who is not
an officer or trustee;
(2) The most recent balance sheet and income
statement of any party who is proposed to acquire an ownership interest of 5%
or more, if the transfer or sale of interest involves less than 50% but more
than 5% of the interests of the continuing care facility;
(3) A detailed account of any changes that will
occur in the debt structure of the continuing care facility or the CCC; and
(4) A detailed account of the resulting debt
service requirements, with notes explaining how these debt service requirements
differ from the requirements in existence prior to the proposed transfer or
sale.
(c) When RSA 420-D:13, II requires a new CCC to
apply for a certificate of authority, the application procedures of Ins 1803
shall apply.
Source. #7014, eff 7-1-99; EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
PART Ins 1812 ENFORCEMENT
Ins 1812.01 Violations. Any person or CCC violating the provisions of
this chapter shall be subject to the provisions of RSA 400-A:15, RSA
420-D:21, and RSA 420-D:26.
Source. #7014, eff 7-1-99; EXPIRED: 7-1-07
New. #8991, eff 10-1-07; ss by #10944, eff
10-8-15; ss by #14640, eff 6-27-26, EXPIRES: 6-27-36
PART Ins 1813 WAIVER
Ins 1813.01 Waiver of Rules.
(a) The
commissioner, upon the commissioner’s own initiative or upon request by a
provider, shall waive any requirement of this chapter if such waiver does not
contradict the objective or intent of the rule and:
(1) Applying the rule provision would cause
confusion or would be misleading to consumers;
(2) The rule provision is in whole or in part
inapplicable to the given circumstances;
(3) There are specific circumstances unique to
the situation such that strict compliance
with the rule
would be onerous without promoting the objective or intent of the rule
provision; or
(4) Any other similar extenuating circumstances
exist such that application of an alternative standard or procedure better
promotes the objective or intent of the rule provision.
(b) No
requirement prescribed by statute shall be waived unless expressly authorized
by law.
(c) Any
person or entity seeking a waiver shall make a request in writing.
(d) A request for a waiver shall specify the
basis for the waiver, the duration, and proposed alternative, if any.
(e) Waivers that are granted shall be in effect
for the duration approved by the commissioner.
Source. #12912, eff 10-28-19; ss by #14640, eff
6-27-26, EXPIRES: 6-27-36
APPENDIX
A
|
Rule |
Specific
State Statute which the Rule is Intended to Implement |
|
Ins 1801.01 |
RSA 420-D:17 |
|
Ins 1801.02 |
RSA 420-D:17 |
|
Ins 1802.01 |
RSA 420-D:1; RSA 420-D:17 |
|
Ins 1803.01 |
RSA 420-D:17; RSA 420-D:2; RSA
420-D:3; RSA 420-D:6 |
|
Ins 1803.02 |
RSA 420-D:2; RSA 420-D:3; RSA
420-D:5; RSA 420-D:6; RSA 420-D:17; RSA 541-A:30, III; RSA 541-A:31, III;
RSA 541-A:35 |
|
Ins 1804.01 |
RSA 420-D:4; RSA 420-D:7; RSA
420-D:17 |
|
Ins 1804.02 |
RSA 420-D:17; RSA 420-D:7-a |
|
Ins 1805.01 |
RSA 420-D:8; RSA 420-D:17; RSA
420-D:15-a |
|
Ins 1805.02 |
RSA 420-D:8; RSA 420-D:17 |
|
Ins 1806.01 |
RSA 420-D:9; RSA 420-D:17; RSA
420-D:5, II |
|
Ins 1807.01 |
RSA 420-D:17; RSA 420-D:10 |
|
Ins 1808.01 |
RSA 420-D:17; RSA 420-D:4; RSA
420-D:12 |
|
Ins 1808.02 |
RSA 420-D:17; RSA 420-D:4;
RSA420-D:12 |
|
Ins 1808.03 |
RSA 420-D:17; RSA 420-D:4; RSA
420-D:12 |
|
Ins 1809.01 |
RSA 420-D:3, I; RSA 420-D:17;
RSA 420-D:25 |
|
Ins 1810.01 |
RSA 400-A:37; RSA 420-D:17; RSA
420-D:23; RSA 420-D:24; RSA 420-D:25 |
|
Ins 1811.01 |
RSA 420-D:13; RSA 420-D:17 |
|
Ins 1812.01 |
RSA 400-A:15; RSA 420-D:17; RSA
420-D:21; RSA 420-D:22; RSA 420-D:23; 420-D:26 |
|
Ins 1813.01 |
RSA 400-A:15, I; RSA 541-A:22,
IV |
APPENDIX B Incorporation by Reference Information
|
Rule |
Title |
Publisher; How to Obtain; and Cost |
|
Ins 1804.01
(d)(3) |
“Actuarial
Standard of Practice No. 3, Practices Relating to Continuing Care Retirement
Communities” adopted July,
1994 |
American Academy
of Actuaries’ Actuarial Standards Board; American Academy
of Actuaries, 1100 Seventeenth Street, 7th Floor, Washington, DC
20036; tel. 202-223-8196; www.actuary.org |
|
Ins 1807.01
(d)(10) |
“Domestic
Company Custodial Agreement” |
NHID-CA1, dated
1990 N.H. Insurance
Department, 21 South Fruit St., Concord, NH 03301; tel. 603-271-2261;
www.ins.nh.gov |