0001| AN ACT | 0002| RELATING TO HEALTH; ENACTING THE COUNTY HEALTH COMMISSION ACT; | 0003| ENACTING THE NONPROFIT HOSPITAL SALE ACT; ENACTING A NEW SECTION OF | 0004| THE HOSPITAL FUNDING ACT; AMENDING CERTAIN SECTIONS OF THE NMSA 1978 | 0005| PERTAINING TO OPEN MEETINGS, PROCUREMENT AND PUBLIC RECORDS. | 0006| | 0007| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0008| Section 1. SHORT TITLE.--Sections 1 through 8 of this act may be | 0009| cited as the "County Health Commission Act". | 0010| Section 2. PURPOSE.--The purpose of the County Health Commission | 0011| Act is to permit the transfer of ownership of a county hospital to a | 0012| county health commission, thereby enhancing the ability of the | 0013| hospital to compete in the competitive and rapidly changing health | 0014| care marketplace, while ensuring that the hospital maintains its | 0015| primary purpose of providing health care for the benefit of the sick | 0016| and indigent citizens of the county through the requirement of a | 0017| publicly elected commission. | 0018| Section 3. DEFINITIONS.--As used in the County Health Commission | 0019| Act: | 0020| A. "commission" means a county health commission created | 0021| pursuant to the County Health Commission Act; | 0022| B. "county" means a class B county having a population of | 0023| more than fifty thousand but less than sixty thousand according to the | 0024| 1990 federal decennial census and having a net taxable value for rate- | 0025| setting purposes for the 1996 property tax year of more than four | 0001| hundred fifty million dollars ($450,000,000) but less than five | 0002| hundred million dollars ($500,000,000); | 0003| C. "county hospital" means a hospital owned by a county; | 0004| and | 0005| D. "county health commission hospital" means a public | 0006| hospital, the ownership and responsibility for operation of which have | 0007| been transferred from a county to a county health commission. | 0008| Section 4. CREATION OF COMMISSION.--The board of county | 0009| commissioners of a county in which there is a county hospital: | 0010| A. may create a county health commission by the adoption of | 0011| a resolution creating the commission; or | 0012| B. may call for an election on the question of creating a | 0013| county health commission. Such an election shall be required upon | 0014| presentation to the board of county commissioners of a petition signed | 0015| by registered electors of the county requesting an election on the | 0016| question. The number of signatures required on the petition shall be | 0017| at least five percent of the number of votes cast for governor in the | 0018| county in the last preceding gubernatorial election. An election | 0019| pursuant to this subsection shall be conducted in the manner provided | 0020| in the Election Code for the conduct of special elections. If the | 0021| election is held as the result of presentation of a petition to the | 0022| board of county commissioners, the election shall be held within | 0023| forty-five days of the receipt of the petition. | 0024| Section 5. MEMBERSHIP OF COMMISSION--ELECTION OF MEMBERS-- | 0025| TRANSFER OF HOSPITAL.-- | 0001| A. The initial election of the county health commission | 0002| shall be held within sixty days of the adoption by the board of county | 0003| commissioners of a resolution creating a county health commission, or | 0004| of an election pursuant to Section 4 of the County Health Commission | 0005| Act in which a majority of the voters voted in favor of creating a | 0006| county health commission. The election shall be conducted in the | 0007| manner provided in the Election Code for the conduct of special | 0008| elections. | 0009| B. Election districts for the commission shall be identical | 0010| to those districts designated for elections of the board of county | 0011| commissioners. Two county health commissioners shall be elected from | 0012| each district by the voters of the district. A commissioner shall be | 0013| a resident of the district from which he is elected. Commissioners | 0014| elected in the initial election shall serve until the next general | 0015| election. Thereafter, elections for the commission shall be conducted | 0016| at general elections. | 0017| C. At the first general election in which there is an | 0018| election for the county health commission, commissioners shall be | 0019| elected for staggered terms. One commissioner from each district | 0020| shall be elected to a term of four years, and the other commissioner | 0021| from the district shall be elected to a term of two years. The | 0022| commissioner receiving the highest vote total shall have the four-year | 0023| term. Thereafter, commissioners shall be elected for terms of four | 0024| years. A vacancy on the commission shall be filled by appointment by | 0025| the board of county commissioners for the remainder of the unexpired | 0001| term. | 0002| D. Within ten days after the results of the election are | 0003| certified, the newly elected commission shall meet and organize | 0004| itself. | 0005| E. Within thirty days after the results of the election are | 0006| certified, the county shall transfer ownership of the county hospital | 0007| to the commission. The commission shall thereafter own the hospital, | 0008| which shall remain a public hospital. The county health commission | 0009| shall be responsible for the operations of the hospital; provided that | 0010| a county health commission hospital may be operated by another party | 0011| pursuant to a lease or management contract with the commission. | 0012| Section 6. POWERS AND DUTIES OF COMMISSION.-- | 0013| A. A county health commission shall operate the hospital | 0014| that has been transferred to its control as a public hospital for the | 0015| benefit of the residents of the county in which it is located. | 0016| B. A commission shall have all powers necessary and | 0017| appropriate to carry out and effectuate its public purposes, including | 0018| the following powers: | 0019| (1) to adopt, amend and repeal bylaws for the | 0020| administration and regulation of the affairs of the commission; | 0021| (2) to sue and be sued; | 0022| (3) to purchase, lease, receive, acquire, own, hold, | 0023| use and otherwise deal in and with real property or personal property; | 0024| (4) to sell, convey, lease, pledge, exchange, | 0025| transfer and otherwise dispose of all or any part of any of its assets | 0001| and properties for such consideration upon such terms and conditions | 0002| as the commission shall determine; | 0003| (5) to make contracts, incur liabilities and borrow | 0004| money at such rates of interest as the commission may determine; | 0005| (6) to make and execute contracts and all other | 0006| instruments necessary or convenient in the exercise of its powers and | 0007| functions; | 0008| (7) to receive, administer, hold and use all funds | 0009| made available to it from any source; | 0010| (8) to apply for and accept gifts or grants of | 0011| property, funds, services or aid in any form from the United States, a | 0012| unit of government or a person; | 0013| (9) to invest and reinvest its funds; | 0014| (10) to conduct its activities, carry out its | 0015| operations, have offices and facilities and exercise the powers | 0016| granted by the County Health Commission Act; | 0017| (11) to employ such officers and employees as it | 0018| deems necessary, set their compensation and describe their duties; | 0019| (12) to procure insurance against any loss in | 0020| connection with its operations, property and other assets; | 0021| (13) to employ advisors, consultants, agents and | 0022| employees as may be required in its judgment and to fix and pay | 0023| compensation; and | 0024| (14) to do all things authorized by law not | 0025| inconsistent with the provisions of the County Health Commission Act. | 0001| Section 7. HOSPITAL REVENUE BONDS.-- | 0002| A. A county health commission may issue hospital revenue | 0003| bonds pursuant to the County Health Commission Act for the purpose of | 0004| constructing, purchasing, remodeling, equipping or re-equipping a | 0005| county health commission hospital. | 0006| B. The county health commission issuing the hospital | 0007| revenue bonds pursuant to the County Health Commission Act may pledge | 0008| irrevocably all or a portion of the revenues derived from the | 0009| operation of the county health commission hospital and revenues | 0010| derived from the leasing or other contractual arrangement for the | 0011| operation of a county health commission hospital for the payment of | 0012| principal and interest on the revenue bonds. | 0013| C. At a regular or special meeting called for the purpose | 0014| of issuing revenue bonds as authorized pursuant to the County Health | 0015| Commission Act the county health commission may adopt a resolution | 0016| that: | 0017| (1) declares the necessity for issuing revenue bonds; | 0018| (2) authorizes the issuance of revenue bonds by an | 0019| affirmative vote of a majority of the county health commission; and | 0020| (3) designates the source of the pledged revenues. | 0021| D. Hospital revenue bonds: | 0022| (1) may have interest, appreciated principal value or | 0023| any part thereof payable at intervals or at maturity as may be | 0024| determined by the county health commission; | 0025| (2) may be subject to a prior redemption at the | 0001| option of the county health commission at such time and upon such | 0002| terms and conditions, with or without the payment of a premium, as may | 0003| be provided by resolution of the county health commission; | 0004| (3) may mature at any time not exceeding thirty years | 0005| after the date of issuance; | 0006| (4) may be serial in form and maturity or may consist | 0007| of one bond payable at one time or in installments or may be in any | 0008| other form as may be provided in the resolution authorizing the bonds; | 0009| (5) shall be sold for cash at above or below par and | 0010| at a price that results in a net effective interest rate which does | 0011| not exceed the maximum permitted by the Public Securities Act; and | 0012| (6) may be sold at a public or private sale. | 0013| E. Hospital revenue bonds issued under the authority of the | 0014| County Health Commission Act shall not be the general obligations of | 0015| the county and shall be payable only from the proper pledged revenues, | 0016| and each bond shall state that it is payable solely from the proper | 0017| pledged revenues and that the bondholders may not look to any other | 0018| fund for the payment of the principal and interest on the bonds. | 0019| F. Hospital revenue bonds issued under authority of the | 0020| County Health Commission Act and the income from the bonds shall be | 0021| exempt from all taxation by the state or any political subdivision of | 0022| the state. | 0023| G. It is unlawful to divert, use or expend any money | 0024| received from the issuance of hospital revenue bonds for any purpose | 0025| other than the purpose for which the bonds were issued. | 0001| Section 8. SALE OR DISSOLUTION.--In the event of sale of a | 0002| county health commission hospital, all proceeds from the sale of the | 0003| hospital shall be transferred to the board of county commissioners | 0004| subject to the rights of any bondholders, lienholders or creditors of | 0005| the commission. In the event of dissolution of a county health | 0006| commission, all rights and properties of the commission shall be | 0007| transferred by action of the commission, or in the absence of that | 0008| action, automatically by operation of law, to the board of county | 0009| commissioners, subject to the rights of any bondholders, lienholders | 0010| or creditors of the commission. | 0011| Section 9. A new section of the Hospital Funding Act, Section 4- | 0012| 48B-7.1 NMSA 1978, is enacted to read: | 0013| "4-48B-7.1. POWER TO TRANSFER HOSPITAL TO COUNTY HEALTH | 0014| COMMISSION.--All counties shall have the power to transfer a county | 0015| hospital to a commission created pursuant to the County Health | 0016| Commission Act." | 0017| Section 10. Section 10-15-1 NMSA 1978 (being Laws 1974, Chapter | 0018| 91, Section 1, as amended) is amended to read: | 0019| "10-15-1. FORMATION OF PUBLIC POLICY--PROCEDURES FOR OPEN | 0020| MEETINGS--EXCEPTIONS AND PROCEDURES FOR CLOSED MEETINGS.-- | 0021| A. In recognition of the fact that a representative | 0022| government is dependent upon an informed electorate, it is declared to | 0023| be public policy of this state that all persons are entitled to the | 0024| greatest possible information regarding the affairs of government and | 0025| the official acts of those officers and employees who represent them. | 0001| The formation of public policy or the conduct of business by vote | 0002| shall not be conducted in closed meeting. All meetings of any public | 0003| body except the legislature and the courts shall be public meetings, | 0004| and all persons so desiring shall be permitted to attend and listen to | 0005| the deliberations and proceedings. Reasonable efforts shall be made | 0006| to accommodate the use of audio and video recording devices. | 0007| B. All meetings of a quorum of members of any board, | 0008| commission, administrative adjudicatory body or other policymaking | 0009| body of any state agency, any agency or authority of any county, | 0010| municipality, district or any political subdivision, held for the | 0011| purpose of formulating public policy, including the development of | 0012| personnel policy, rules, regulations or ordinances, discussing public | 0013| business or for the purpose of taking any action within the authority | 0014| of or the delegated authority of any board, commission or other | 0015| policymaking body are declared to be public meetings open to the | 0016| public at all times, except as otherwise provided in the constitution | 0017| of New Mexico or the Open Meetings Act. No public meeting once | 0018| convened that is otherwise required to be open pursuant to the Open | 0019| Meetings Act shall be closed or dissolved into small groups or | 0020| committees for the purpose of permitting the closing of the meeting. | 0021| C. If otherwise allowed by law or rule of the public body, | 0022| a member of a public body may participate in a meeting of the public | 0023| body by means of a conference telephone or other similar | 0024| communications equipment when it is otherwise difficult or impossible | 0025| for the member to attend the meeting in person, provided that each | 0001| member participating by conference telephone can be identified when | 0002| speaking, all participants are able to hear each other at the same | 0003| time and members of the public attending the meeting are able to hear | 0004| any member of the public body who speaks during the meeting. | 0005| D. Any meetings at which the discussion or adoption of any | 0006| proposed resolution, rule, regulation or formal action occurs and at | 0007| which a majority or quorum of the body is in attendance, and any | 0008| closed meetings, shall be held only after reasonable notice to the | 0009| public. The affected body shall determine at least annually in a | 0010| public meeting what notice for a public meeting is reasonable when | 0011| applied to that body. That notice shall include broadcast stations | 0012| licensed by the federal communications commission and newspapers of | 0013| general circulation that have provided a written request for such | 0014| notice. | 0015| E. A public body may recess and reconvene a meeting to a | 0016| day subsequent to that stated in the meeting notice if, prior to | 0017| recessing, the public body specifies the date, time and place for | 0018| continuation of the meeting, and, immediately following the recessed | 0019| meeting, posts notice of the date, time and place for the reconvened | 0020| meeting on or near the door of the place where the original meeting | 0021| was held and in at least one other location appropriate to provide | 0022| public notice of the continuation of the meeting. Only matters | 0023| appearing on the agenda of the original meeting may be discussed at | 0024| the reconvened meeting. | 0025| F. Meeting notices shall include an agenda containing a | 0001| list of specific items of business to be discussed or transacted at | 0002| the meeting or information on how the public may obtain a copy of such | 0003| an agenda. Except in the case of an emergency, the agenda shall be | 0004| available to the public at least twenty-four hours prior to the | 0005| meeting. Except for emergency matters, a public body shall take | 0006| action only on items appearing on the agenda. For purposes of this | 0007| subsection, an "emergency" refers to unforeseen circumstances that, if | 0008| not addressed immediately by the public body, will likely result in | 0009| injury or damage to persons or property or substantial financial loss | 0010| to the public body. | 0011| G. The board, commission or other policymaking body shall | 0012| keep written minutes of all its meetings. The minutes shall include | 0013| at a minimum the date, time and place of the meeting, the names of | 0014| members in attendance and those absent, the substance of the proposals | 0015| considered and a record of any decisions and votes taken that show how | 0016| each member voted. All minutes are open to public inspection. Draft | 0017| minutes shall be prepared within ten working days after the meeting | 0018| and shall be approved, amended or disapproved at the next meeting | 0019| where a quorum is present. Minutes shall not become official until | 0020| approved by the policymaking body. | 0021| H. The provisions of Subsections A, B and G of this section | 0022| do not apply to: | 0023| (1) meetings pertaining to issuance, suspension, | 0024| renewal or revocation of a license, except that a hearing at which | 0025| evidence is offered or rebutted shall be open. All final actions on | 0001| the issuance, suspension, renewal or revocation of a license shall be | 0002| taken at an open meeting; | 0003| (2) limited personnel matters; provided that for | 0004| purposes of the Open Meetings Act, "limited personnel matters" means | 0005| the discussion of hiring, promotion, demotion, dismissal, assignment | 0006| or resignation of or the investigation or consideration of complaints | 0007| or charges against any individual public employee; provided further | 0008| that this subsection is not to be construed as to exempt final actions | 0009| on personnel from being taken at open public meetings, nor does it | 0010| preclude an aggrieved public employee from demanding a public hearing. | 0011| Judicial candidates interviewed by any commission shall have the right | 0012| to demand an open interview; | 0013| (3) deliberations by a public body in connection with | 0014| an administrative adjudicatory proceeding. For purposes of this | 0015| paragraph, an "administrative adjudicatory proceeding" means a | 0016| proceeding brought by or against a person before a public body in | 0017| which individual legal rights, duties or privileges are required by | 0018| law to be determined by the public body after an opportunity for a | 0019| trial-type hearing. Except as otherwise provided in this section, the | 0020| actual administrative adjudicatory proceeding at which evidence is | 0021| offered or rebutted and any final action taken as a result of the | 0022| proceeding shall occur in an open meeting; | 0023| (4) the discussion of personally identifiable | 0024| information about any individual student, unless the student, his | 0025| parent or guardian requests otherwise; | 0001| (5) meetings for the discussion of bargaining | 0002| strategy preliminary to collective bargaining negotiations between the | 0003| policymaking body and a bargaining unit representing the employees of | 0004| that policymaking body and collective bargaining sessions at which the | 0005| policymaking body and the representatives of the collective bargaining | 0006| unit are present; | 0007| (6) that portion of meetings at which a decision | 0008| concerning purchases in an amount exceeding two thousand five hundred | 0009| dollars ($2,500) that can be made only from one source and that | 0010| portion of meetings at which the contents of competitive sealed | 0011| proposals solicited pursuant to the Procurement Code are discussed | 0012| during the contract negotiation process. The actual approval of | 0013| purchase of the item or final action regarding the selection of a | 0014| contractor shall be made in an open meeting; | 0015| (7) meetings subject to the attorney-client privilege | 0016| pertaining to threatened or pending litigation in which the public | 0017| body is or may become a participant; | 0018| (8) meetings for the discussion of the purchase, | 0019| acquisition or disposal of real property or water rights by the public | 0020| body; and | 0021| (9) those portions of meetings of committees or | 0022| boards of public hospitals or county health commissions where | 0023| strategic and long-range business plans are discussed. For purposes | 0024| of this paragraph, "strategic and long-range business plans" includes | 0025| all matters involving proprietary information the disclosure of which | 0001| would be likely to impede the ability of the hospital to compete in | 0002| the health care market; provided that discussion of possible sale of a | 0003| public hospital or county health commission hospital or its assets to | 0004| another entity is not within the exception provided by this paragraph. | 0005| I. If any meeting is closed pursuant to the exclusions | 0006| contained in Subsection H of this section, the closure: | 0007| (1) if made in an open meeting, shall be approved by | 0008| a majority vote of a quorum of the policymaking body; the authority | 0009| for the closure and the subject to be discussed shall be stated with | 0010| reasonable specificity in the motion calling for the vote on a closed | 0011| meeting; the vote shall be taken in an open meeting; and the vote of | 0012| each individual member shall be recorded in the minutes. Only those | 0013| subjects announced or voted upon prior to closure by the policymaking | 0014| body may be discussed in a closed meeting; and | 0015| (2) if called for when the policymaking body is not | 0016| in an open meeting, shall not be held until public notice, appropriate | 0017| under the circumstances, stating the specific provision of the law | 0018| authorizing the closed meeting and stating with reasonable specificity | 0019| the subject to be discussed is given to the members and to the general | 0020| public. | 0021| J. Following completion of any closed meeting, the minutes | 0022| of the open meeting that was closed or the minutes of the next open | 0023| meeting if the closed meeting was separately scheduled shall state | 0024| that the matters discussed in the closed meeting were limited only to | 0025| those specified in the motion for closure or in the notice of the | 0001| separate closed meeting. This statement shall be approved by the | 0002| public body under Subsection G of this section as part of the | 0003| minutes." | 0004| Section 11. Section 13-1-98 NMSA 1978 (being Laws 1984, Chapter | 0005| 65, Section 71, as amended) is amended to read: | 0006| "13-1-98. EXEMPTIONS FROM THE PROCUREMENT CODE.--The provisions | 0007| of the Procurement Code shall not apply to: | 0008| A. procurement of items of tangible personal property or | 0009| services by a state agency or a local public body from a state agency, | 0010| a local public body or external procurement unit except as otherwise | 0011| provided in Sections 13-1-135 through 13-1-137 NMSA 1978; | 0012| B. procurement of tangible personal property or services | 0013| for the governor's mansion and grounds; | 0014| C. printing and duplicating contracts involving materials | 0015| which are required to be filed in connection with proceedings before | 0016| administrative agencies or state or federal courts; | 0017| D. purchases of publicly provided or publicly regulated | 0018| gas, electricity, water, sewer and refuse collection services; | 0019| E. purchases of books and periodicals from the publishers | 0020| or copyright holders thereof; | 0021| F. travel or shipping by common carrier or by private | 0022| conveyance or to meals and lodging; | 0023| G. purchase of livestock at auction rings or to the | 0024| procurement of animals to be used for research and experimentation or | 0025| exhibit; | 0001| H. contracts with businesses for public school | 0002| transportation services; | 0003| I. procurement of tangible personal property or services, | 0004| as defined by Sections 13-l-87 and 13-l-93 NMSA 1978, by the | 0005| corrections industries division of the corrections department pursuant | 0006| to regulations adopted by the corrections commission, which shall be | 0007| reviewed by the purchasing division of the general services department | 0008| prior to adoption; | 0009| J. minor purchases consisting of magazine subscriptions, | 0010| conference registration fees and other similar purchases where | 0011| prepayments are required; | 0012| K. municipalities having adopted home rule charters and | 0013| having enacted their own purchasing ordinances; | 0014| L. the issuance, sale and delivery of public securities | 0015| pursuant to the applicable authorizing statute, with the exception of | 0016| bond attorneys and general financial consultants; | 0017| M. contracts entered into by a local public body with a | 0018| private independent contractor for the operation, or provision and | 0019| operation, of a jail pursuant to Sections 33-3-26 and 33-3-27 NMSA | 0020| 1978; | 0021| N. contracts for maintenance of grounds and facilities at | 0022| highway rest stops and other employment opportunities, excluding those | 0023| intended for the direct care and support of persons with handicaps, | 0024| entered into by state agencies with private, nonprofit, independent | 0025| contractors who provide services to persons with handicaps; | 0001| O. contracts and expenditures for services to be paid or | 0002| compensated by money or other property transferred to New Mexico law | 0003| enforcement agencies by the United States department of justice drug | 0004| enforcement administration; | 0005| P. contracts for retirement and other benefits pursuant to | 0006| Sections 22-11-47 through 22-11-52 NMSA 1978; | 0007| Q. contracts with professional entertainers; and | 0008| R. procurement of items of tangible personal property or | 0009| services by a hospital owned and operated by a county health | 0010| commission pursuant to purchasing regulations adopted by that | 0011| commission." | 0012| Section 12. Section 14-2-1 NMSA 1978 (being Laws 1947, Chapter | 0013| 130, Section 1, as amended) is amended to read: | 0014| "14-2-1. RIGHT TO INSPECT PUBLIC RECORDS--EXCEPTIONS.--Every | 0015| person has a right to inspect any public records of this state except: | 0016| A. records pertaining to physical or mental examinations | 0017| and medical treatment of persons confined to any institution; | 0018| B. letters of reference concerning employment, licensing or | 0019| permits; | 0020| C. letters or memorandums which are matters of opinion in | 0021| personnel files or students' cumulative files; | 0022| D. law enforcement records that reveal confidential | 0023| sources, methods, information or individuals accused but not charged | 0024| with a crime. Law enforcement records include evidence in any form | 0025| received or compiled in connection with any criminal investigation or | 0001| prosecution by any law enforcement or prosecuting agency, including | 0002| inactive matters or closed investigations to the extent that they | 0003| contain the information listed above; | 0004| E. as provided by the Confidential Materials Act; | 0005| F. those portions of records of a county health commission | 0006| or a county health commission hospital that include proprietary | 0007| information, the disclosure of which would be likely to impede the | 0008| ability of the hospital to compete in the health care market; and | 0009| G. as otherwise provided by law." | 0010| Section 13. SHORT TITLE.--Sections 13 through 22 of this act may | 0011| be cited as the "Nonprofit Hospital Sale Act". | 0012| Section 14. DEFINITIONS.--As used in the Nonprofit Hospital Sale | 0013| Act: | 0014| A. "acquire" or "acquisition" means the acquiring by a | 0015| person of an interest in a hospital, whether by purchase, merger, | 0016| lease, gift or otherwise, that results in a change of ownership or | 0017| control of twenty percent or greater or that results in the acquiring | 0018| person holding a fifty percent or greater interest in the ownership or | 0019| control of a hospital, but "acquisition" does not include the | 0020| acquiring of an interest in a hospital owned by a nonprofit | 0021| corporation if the transferee: | 0022| (1) is a nonprofit corporation having a substantially | 0023| similar charitable health care purpose as the transferor; and | 0024| (2) will continue representation from the affected | 0025| community on the local board; | 0001| B. "department" means the department of health; | 0002| C. "hospital" means a general or acute care or specialty | 0003| hospital licensed by the department; | 0004| D. "nonprofit corporation" means a person exempt from | 0005| federal income tax pursuant to Section 501(c)(3) of the Internal | 0006| Revenue Code of 1986 or the state or a department, agency, institution | 0007| or political subdivision of the state; and | 0008| E. "person" means an individual or other legal entity, not | 0009| including the state or a department, agency, institution or political | 0010| subdivision of the state. | 0011| Section 15. ACQUISITIONS--APPLICATIONS--APPROVALS.-- | 0012| A. No person shall acquire a hospital owned by a nonprofit | 0013| corporation without first applying for and receiving the approval of | 0014| the department and without first notifying the attorney general and, | 0015| if applicable, receiving approval from the attorney general pursuant | 0016| to the Nonprofit Hospital Sale Act. | 0017| B. Except as provided in Subsection C of this section, no | 0018| person shall acquire a hospital owned by a person other than a | 0019| nonprofit corporation without first applying for and receiving the | 0020| approval of the department pursuant to the Nonprofit Hospital Sale Act | 0021| unless the acquiring person is a nonprofit corporation. | 0022| C. Approval of the department and the attorney general is | 0023| not required for the acquisition of a hospital if the acquisition is a | 0024| result of: | 0025| (1) the lease of a county hospital; | 0001| (2) the dissolution of a hospital district; or | 0002| (3) the merger of hospital districts or governmental | 0003| hospitals. | 0004| D. The acquisition application shall be submitted to the | 0005| department and the attorney general on forms provided by the | 0006| department and shall include the name of the seller, the name of the | 0007| purchaser or other parties to the acquisition, the terms of the | 0008| proposed agreement, the sale price, a copy of the acquisition | 0009| agreement, a financial and economic analysis and report from an | 0010| independent expert or consultant of the effect of the acquisition | 0011| based on the criteria set forth in Sections 7 and 8 of the Nonprofit | 0012| Hospital Sale Act and all other related documents. A copy of the | 0013| application and copies of all additional related materials shall be | 0014| submitted to the department and to the attorney general at the same | 0015| time. Applications and all related documents are public records. | 0016| E. A person not required to obtain approval for an | 0017| acquisition shall notify the department and the attorney general at | 0018| least thirty days before the acquisition. The notice shall briefly | 0019| describe the impending acquisition, including any change in ownership | 0020| of tangible and intangible assets. | 0021| Section 16. APPLICATION--CONTENTS--TIME PERIODS--APPROVALS OR | 0022| DISAPPROVALS.-- | 0023| A. Within ten days after receipt of an application, the | 0024| department shall publish notice of the application in a newspaper of | 0025| general circulation in the county where the hospital is located and | 0001| shall notify by mail any person who has requested notice of the filing | 0002| of applications. The notice shall state that an application has been | 0003| received, state the names of the parties to the agreement, describe | 0004| the contents of the application and state the date by which a person | 0005| may submit written comments about the application to the department. | 0006| B. Within twenty days after receiving an application, the | 0007| attorney general shall determine whether to review the application in | 0008| accordance with Section 7 of the Nonprofit Hospital Sale Act and shall | 0009| notify the applicant of his decision. If the attorney general reviews | 0010| the application, he shall approve or disapprove the acquisition within | 0011| sixty days. | 0012| C. Within sixty days after receiving an application, the | 0013| department shall review the application in accordance with the | 0014| standards set forth in the Nonprofit Hospital Sale Act and shall: | 0015| (1) approve the acquisition, with or without any | 0016| specific modifications; or | 0017| (2) disapprove the acquisition. | 0018| D. If during its review the department determines that the | 0019| application is incomplete, it may return the application to the | 0020| applicant or may request additions or changes to the application. All | 0021| deadlines are suspended during the time an application is incomplete. | 0022| E. The department shall not make its decision subject to | 0023| any condition not directly related to criteria enumerated in Section 8 | 0024| of the Nonprofit Hospital Sale Act, and any condition or modification | 0025| shall bear a direct and rational relationship to the application under | 0001| review. | 0002| F. An affected person may appeal a final decision by the | 0003| department pursuant to the Nonprofit Hospital Sale Act in the same | 0004| manner as appeals related to the department's denial, suspension or | 0005| revocation of a hospital license pursuant to Section 24-1-5 NMSA 1978. | 0006| Section 17. PUBLIC HEARING.--The department and the attorney | 0007| general shall hold a public hearing in which any person may file | 0008| written comments and exhibits or appear and make a statement. The | 0009| department and the attorney general may subpoena additional | 0010| information or witnesses, require and administer oaths, require sworn | 0011| statements, take depositions and use related discovery procedures for | 0012| purposes of the hearing and at any time prior to making a decision on | 0013| the application. The hearing shall be held not later than forty days | 0014| after receipt of an application. The hearing shall be held upon ten | 0015| working days' notice, not including days the application is deemed | 0016| incomplete. | 0017| Section 18. DECLARATORY JUDGMENT.--After the attorney general | 0018| approves or disapproves the acquisition, the applicant or any person | 0019| who has submitted comments pursuant to Section 5 of the Nonprofit | 0020| Hospital Sale Act, if the person has an interest in the hospital being | 0021| acquired or in another hospital that has contracted with the | 0022| acquirable hospital for the provision of essential health services, | 0023| may bring an action for declaratory judgment for a determination that | 0024| the acquisition is or is not in the public interest as provided in | 0025| Section 7 of that act. | 0001| Section 19. ATTORNEY GENERAL--CRITERIA.-- | 0002| A. The attorney general shall approve the application | 0003| unless he finds that the acquisition is not in the public interest. | 0004| An acquisition is not in the public interest unless appropriate steps | 0005| have been taken to safeguard the value of charitable assets and ensure | 0006| that any proceeds of the transaction are used for appropriate | 0007| charitable health care purposes as provided in Paragraph (8) of | 0008| Subsection B of this section. | 0009| B. In determining whether the acquisition meets the | 0010| requirements of the Nonprofit Hospital Sale Act, the attorney general | 0011| shall consider: | 0012| (1) whether the acquisition is permitted by the | 0013| Nonprofit Corporation Act and other laws of New Mexico governing | 0014| public procurement or nonprofit entities; | 0015| (2) whether the nonprofit hospital exercised due | 0016| diligence in deciding to sell, selecting the purchaser and negotiating | 0017| the terms and conditions of the sale; | 0018| (3) the procedures used by the seller in making its | 0019| decision, including whether appropriate expert assistance was used; | 0020| (4) whether conflict of interest was disclosed, | 0021| including conflicts of interest related to board members of, | 0022| executives of and experts retained by the seller, purchaser or other | 0023| parties to the acquisition; | 0024| (5) whether the seller will receive reasonable | 0025| consideration and fair value for its assets. The attorney general may | 0001| employ, at the seller's expense, reasonably necessary expert | 0002| assistance in making this determination; | 0003| (6) whether public and charitable funds are placed at | 0004| unreasonable risk, if the acquisition is financed in part by the | 0005| seller; | 0006| (7) whether any management contract under the | 0007| acquisition is for reasonable consideration and fair value; | 0008| (8) whether the sale proceeds will be used for | 0009| appropriate public and charitable health care purposes consistent with | 0010| the seller's original purpose or for the support and promotion of | 0011| health care in the affected community and whether the proceeds will be | 0012| controlled as public or charitable funds independent of the purchaser | 0013| or parties to the acquisition; and | 0014| (9) whether a right of first refusal has been | 0015| retained to repurchase the assets by a successor nonprofit corporation | 0016| or foundation if the hospital is subsequently sold to, acquired by or | 0017| merged with another entity. | 0018| Section 20. DEPARTMENT CRITERIA.-- | 0019| A. In determining whether the acquisition meets the | 0020| requirements of the Nonprofit Hospital Sale Act, the department shall | 0021| consider: | 0022| (1) whether sufficient safeguards are included to | 0023| assure the affected community continued access to affordable and | 0024| appropriate health care; | 0025| (2) whether the purchaser and parties to the | 0001| acquisition have made a commitment to provide health care to the | 0002| disadvantaged, the uninsured and the underinsured and to provide | 0003| benefits to the affected community to promote health care. Activities | 0004| and funding provided by the seller to provide such health care may be | 0005| considered in evaluating compliance with this paragraph; and | 0006| (3) if health care providers will be offered the | 0007| opportunity to invest or own an interest in the purchaser or an entity | 0008| related to the purchaser, whether procedures or safeguards are in | 0009| place to avoid conflict of interest in patient referral and the nature | 0010| of the procedures or safeguards. | 0011| B. This section does not apply higher standards to | 0012| hospitals covered by the provisions of the Nonprofit Hospital Sale Act | 0013| than those applicable to hospitals not covered by the provisions of | 0014| that act. | 0015| Section 21. ACQUISITION--FAILURE TO FULFILL | 0016| OBLIGATIONS--REVOCATION OF LICENSE.--If the department receives | 0017| information indicating that the acquiring person is not fulfilling the | 0018| commitment to the affected community pursuant to Section 7 of the | 0019| Nonprofit Hospital Sale Act, the department shall hold a hearing on | 0020| ten working days' notice to the affected parties. If after the | 0021| hearing the department determines that the information is true, it may | 0022| institute proceedings to revoke the license issued to the purchaser. | 0023| Section 22. LICENSURE--DENIAL, SUSPENSION OR REVOCATION.-- | 0024| A. No license to operate a hospital shall be issued or | 0025| renewed by the department and a license that has been issued shall be | 0001| suspended or revoked if: | 0002| (1) there is an acquisition of a hospital without | 0003| first having received the approval, if applicable, of the department | 0004| pursuant to the Nonprofit Hospital Sale Act; | 0005| (2) there is an acquisition of a hospital without the | 0006| approval of the attorney general if the attorney general determines to | 0007| review the application pursuant to the Nonprofit Hospital Sale Act; | 0008| (3) there is an acquisition of a hospital and there | 0009| is a judicial determination that the acquisition is not in the public | 0010| interest; or | 0011| (4) the hospital is not fulfilling its commitment | 0012| pursuant to Section 8 of the Nonprofit Hospital Sale Act. | 0013| B. Hearings and appeals of department actions pursuant | 0014| to this section shall be taken in the same manner as provided for | 0015| other hospital license suspensions or revocations in Section 24-1- | 0016| 5 NMSA 1978. |