420-D:2 Certificate of Authority. –
I. No person or provider may solicit funds other than non-binding deposit fees of not more than $1,000, accept payments of any kind, or otherwise engage in providing any form of continuing care without acquiring and maintaining a certificate of authority issued by the commissioner pursuant to this chapter. An application for a certificate shall include the proposed disclosure statement and form contract required under RSA 420-D:4 and, in addition to any other state or federal licensure or certification which may be required, a statement indicating that all of the statutory requirements have been met. The commissioner shall take prompt action on requests for a certificate and shall, within a reasonable time, issue a certificate of authority or a written rejection. If the commissioner rejects an application, the commissioner may do so outright or state the conditions which must be met before a certificate shall be issued. The applicant may request reconsideration and shall be granted a hearing in accordance with rules adopted by the commissioner pursuant to RSA 541-A. Certificates issued under this section shall continue in effect until revoked by the commissioner or until sale or transfer of control to another provider.
II. Facilities which reported to or were under the supervision of the director of charitable trusts of the department of justice under RSA 7:19 through RSA 7:32-a on January 1, 1989, shall be exempt from the provisions of this chapter. However, any such facility may elect by a one-time irrevocable election to be subject to the provisions of this chapter by filing an application for a permanent certificate of authority with the commissioner.
III. The application for certification shall contain the following documents and information:
(a) An irrevocable appointment of the department to receive service of any lawful process in any noncriminal proceeding arising under this statute against the provider or the provider's agents.
(b) The states or other jurisdictions, including the federal government, in which an application for certification or similar documents for the subject facility have been or will be filed and any order, judgment, or decree entered in connection therewith by the regulatory authorities in each of the jurisdictions or by any court or administrative body thereof.
(c) The names and business addresses of the company level officers and directors to include a biographical affidavit form provided by the department.
(d) Copies of the articles of incorporation or agreement, with all amendments thereto, if the provider is a corporation; copies of all instruments by which the trust is created or declared, if the provider is a trust; copies of the articles of partnership or association and all other organization papers if the provider is organized under another form. In the event the provider is not the owner of the property upon which the facility is or is to be constructed, the above documents shall be submitted for both the provider and an affiliated owner.
(e) A legal description by metes and bounds or other acceptable means of the lands to be certified, and the relationship of such lands to existing streets, roads and other improvements, together with a map showing the proposed or actual facility and showing the dimensions of the living units as available, except for living units that are completed and available for inspection. The map shall be drawn to scale, signed and sealed by a licensed professional engineer or land surveyor, if available to the applicant.
(f) Copies of the deed or other instrument, including any real property lease, establishing title or leasehold interest of the provider and/or owner and a title search, title report, or title certificate or binder or policy issued by a licensed title insurance company.
(g) A statement concerning any litigation, orders, judgments, or decrees which might affect the provider or owner.
(h) A statement that the continuing care contracts will be offered to the public and entered into without regard to marital status, sexual orientation, sex, race, creed, or national origin or, if not, any legally permissible restrictions on purchase that will apply.
(i) A statement of the present conditions of physical access to the facility, and the existence of any material adverse conditions that affect the facility, that are known, should be known, or are readily ascertainable.
(j) Copies of all contracts, agreements, and any "bill of rights" which the resident may be required to execute or review.
(k) In the event there is or will be a blanket encumbrance or encumbrances affecting the facility or a portion thereof, a copy of the document creating it and a statement of the consequences upon a resident of a failure of the person bound to fulfill the obligations under the instrument or instruments and the manner in which the interest of the resident is to be protected in the event of such eventuality. The provider shall update the department as blanket encumbrances are created or refinanced.
(l) One copy of the proposed disclosure statement with associated biographical affidavits.
(m) A current financial statement of the provider and any related predecessor, parent or subsidiary company, and any current profit and loss statement and balance sheet, whether audited by an independent public accountant or not.
(n) A statement concerning any adjudication of bankruptcy during the last 5 years against the provider, its predecessor, parent or subsidiary company, and any principal owning more than 10 percent of the interests in the facility at the time of the filing of the application for certification. This requirement shall not extend to limited partners or those whose interests are solely those of investors.
(o) Copies of all easements and restrictions, whether of record or not.
(p) A statement as to the status of compliance with all the requirements of all laws, ordinances, and regulations of governmental agencies having jurisdiction over the construction, permitting, and licensing of the facility, including but not limited to any permits required by the department of environmental services together with copies of all necessary federal, state, county, and municipal approvals.
(q) A statement that neither the provider nor any of its officers or principals have ever been convicted of a felony or charged with a misdemeanor involving embezzlement, theft, larceny, or mail fraud, or charged with any violation of any corporate securities laws in this state or a foreign jurisdiction, and that the provider has never been subject to any permanent injunction or final administrative order restraining a false or misleading promotional plan involving continuing care facility disposition or if so, copies of all pleadings and orders in regard thereto. If there is an action or conviction the commissioner shall determine whether to disqualify the relevant party.
(r) A projected annual budget for the facility for the next 5 years, or such lesser time as the department allows, together with a financial feasibility study prepared according to generally accepted accounting principles, as established by the American Institute of Certified Public Accountants, which study shall include an opinion letter as to the financial feasibility of the facility.
(s) Copies of market studies, if any, prepared on the behalf of the provider, concerning the feasibility of the project.
(t) An affidavit, signed by the provider, that the contents of the application are true and accurate and made in good faith.
(u) A disaster recovery plan.
(v) Certification that the applicant's IT platform meets applicable health information security regulations and standards, including those pertaining to cybersecurity.
(w) Such additional information as the department may require in individual cases after review of an application for certification to assure full and fair disclosure.