2012 -- S 2180 SUBSTITUTE A

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LC00664/SUB A/2

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO HEALTH AND SAFETY - HOSPITAL CONVERSIONS ACT

     Introduced By: Senators Picard, Ruggerio, and Cote

     Date Introduced: January 24, 2012

     Referred To: Senate Health & Human Services

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 23-17.14-2, 23-17.14-3, 23-17.14-4, 23-17.14-5, 23-17.14-6, 23-

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17.14-7, 23-17.14-9, 23-17.14-10, 23-17.14-11, 23-17.14-13, 23-17.14-19, 23-17.14-28 and 23-

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17.14-31 of the General Laws in Chapter 23-17.14 entitled "The Hospital Conversions Act" are

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hereby amended to read as follows:

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     23-17.14-2. Findings. -- The general assembly finds and declares that:

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      (1) Rhode Island has a proud history of non-profit hospitals and philanthropic support of

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medical services, education and research;

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      (2) Hospitals in Rhode Island provide overall high quality care at a reasonable cost;

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      (3) Hospitals in Rhode Island have experienced during the 1990's substantial declines in

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occupancy as the healthcare system has changed.

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      (4) Hospitals required require capital to maintain operations and to modernize facilities

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and services;

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      (5) Nationally and regionally private investment is being made that results in the

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conversion of not-for-profit and public hospitals into for-profit hospitals;

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      (6) There are hospitals in Rhode Island that have provided and continue to provide

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important services to communities that submit that their survival may depend on the ability to

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enter into agreements that result in the investment of private capital and their conversion to for-

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profit status;

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      (7) Hospitals both not-for-profit and for-profit are merging and forming networks to

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achieve integration, stability and efficiency and the presence of these networks affects

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competition;

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      (8) There are concerns that hospital networks may engage in practices that affect the

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quality medical services in the community as a whole and for more vulnerable members of

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society in particular;

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      (9) In order to protect public health and welfare and public and charitable assets, it is

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necessary to establish standards and procedures for hospital conversions.

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     23-17.14-3. Purpose of provisions. -- The purpose of this chapter is to:

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      (1) Assure the viability of a safe, accessible and affordable healthcare system that is

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available to all of the citizens of the state;

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      (2) To establish a process to evaluate, monitor and review whether the new phenomenon

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of for-profit corporations gaining an interest in hospitals will maintain, enhance, or disrupt the

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delivery of healthcare in the state and to monitor hospital performance to assure that standards for

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community benefits continue to be met;

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      (3) To establish a review process and criteria for review of hospital conversions that

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involve for-profit corporations;

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      (4) To establish a review process and criteria for review of hospital conversions that

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involve only not-for-profit corporations;

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      (5)(4) To clarify the jurisdiction and the authority of the department of health to protect

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public health and welfare and the department of attorney general to preserve and protect public

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and charitable assets in reviewing both hospital conversions which involve for-profit corporations

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and hospital conversions which include only not-for-profit corporations; and

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      (6)(5) To provide for independent foundations to hold and distribute proceeds of hospital

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conversions consistent with the acquiree's original purpose or for the support and promotion of

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health care and social needs in the affected community.

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     23-17.14-4. Definitions. -- For purposes of this chapter:

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      (1) "Acquiree" means the person or persons that lose(s) any ownership or control in the

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new hospital as a result of a conversion, as the terms “conversion,” "new hospital," and

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"person(s)" are defined within this chapter;

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      (2) "Acquiror" means the person or persons which gain(s) an ownership or control in the

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new hospital as a result of a conversion, as the terms “conversion,” "new hospital," and

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"person(s)" are defined within this chapter;

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      (3) "Affected community" means any city or town within the state wherein an existing

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hospital is physically located and/or those cities and towns whose inhabitants are regularly served

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by the existing hospital;

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      (4) "Charity care" is defined as health care services provided by a hospital without

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charge to a patient and for which the hospital does not and has not expected payment;

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      (5) "Community benefit" means the provision of hospital services that meet the ongoing

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needs of the community for primary and emergency care in a manner that enables families and

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members of the community to maintain relationships with person who are hospitalized or are

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receiving hospital services, and shall also include, but not be limited to charity care and

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uncompensated care;

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      (6) "Conversion" means any transfer by a person or persons of an ownership or

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membership interest or authority in a hospital, or the assets of a hospital, whether by purchase,

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merger, consolidation, lease, gift, joint venture, sale, or other disposition which results in a

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change of ownership or control or possession of twenty percent (20%) or greater of the members

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or voting rights or interests of the hospital or of the assets of the hospital or pursuant to which, by

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virtue of the transfer, a person, together with all persons affiliated with the person, holds or owns,

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in the aggregate, twenty percent (20%) or greater of the membership or voting rights or interests

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of the hospital or of the assets of the hospital, or the removal, addition or substitution of a partner

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which results in a new partner gaining or acquiring a controlling interest in the hospital, or any

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change in membership which results in a new person gaining or acquiring a controlling vote in

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the hospital;

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     (7) “Current conflict of interest forms” means conflict of interest forms signed within one

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year prior to the date the application is submitted in the same form as submitted to auditors for the

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transacting parties in connection with the preparation of financial statements, or in such other

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form as is acceptable to the attorney general, together with a description of any conflicts of

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interest that have been discovered by or disclosed to a transacting party since the date of such

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conflict of interest forms;

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      (7)(8) "Department" means the department of health. However “departments” shall mean

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the department of health and the department of the attorney general;

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      (8)(9) "Director" means the director of the department of health;

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      (9)(10) "Existing hospital" means the acquiree hospital as it exists prior to the

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acquisition;

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      (10)(11) "For-profit corporation" means a legal entity formed for the purpose of

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transacting business which has as any one of its purposes pecuniary profit;

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      (11)(12) "Hospital" means a person or governmental entity licensed in accordance with

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chapter 17 of this title to establish, maintain and operate a hospital;

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      (12)(13) "New hospital" means the acquiree hospital as it exists after the completion of a

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conversion;

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      (13)(14) "Not-for-profit corporation means a legal entity formed for some charitable or

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benevolent purpose and not-for-profit which has been exempted from taxation pursuant to

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Internal Revenue Code section 501(c)(3), 26 U.S.C. section 501(c)(3);

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      (14)(15) "Person" means any individual, trust or estate, partnership, corporation

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(including associations, joint stock companies and insurance companies), state or political

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subdivision or instrumentality of the state;

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     (16) “Senior managers” or “senior management” means executives and senior level

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managers of a transacting party;

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      (15)(17) "Transacting parties" means the acquiree and the acquiror any person or persons

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who seeks either to transfer or acquire ownership or a controlling interest or controlling authority

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in a hospital which would result in a change of ownership, control or authority of twenty percent

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(20%) or greater;

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      (16)(18) "Uncompensated care" means a combination of free care, which the hospital

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provides at no cost to the patient, bad debt, which the hospital bills for but does not collect, and

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less than full Medicaid reimbursement amounts.

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     23-17.14-5. Prior approval required -- Department of attorney general and

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department of health. -- (a) A conversion shall require review and approval from the department

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of attorney general and from the department of health in accordance with the provisions of this

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chapter; except as provided for under section 23-17.14-12.1 hereof, but shall remain subject to the

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authority of the attorney general pursuant to section 23-17.14-21 hereof.

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      (b) The review by the departments shall occur concurrently, and neither department shall

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delay its review or determination because the other department has not completed its review or

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issued its determination. The applicant may request that the review by the department occur

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concurrently with the review of any relevant federal regulatory authority.

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     23-17.14-6. Initial application -- Conversions involving for-profit corporations or

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not-for-profit as acquirors. -- (a) No person shall engage in a conversion with a for profit

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corporation as the acquiror and a not-for-profit corporation as the acquiree involving the

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establishment, maintenance, or operation of a hospital or a conversion subject to section 23-

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17.14-9 without prior approval of both the department of attorney general and the department of

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health. The transacting parties shall file an initial application in accordance with subsection (b) of

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this section that shall, at minimum, include the following information with respect to each

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transacting party and to the proposed new hospital:

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      (1) A detailed summary of the proposed conversion;

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      (2) Names, addresses and phone numbers of the transacting parties;

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      (3) Name, address, phone number, occupation, and tenure of all officers, members of the

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board of directors, trustees, executives, and senior level managers, including for each position,

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current persons and persons holding such position during the past three (3) two (2) years;

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      (4) A list of all committees, subcommittees, task forces, or similar entities of the board

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of directors or trustees, including a short description of the purpose of each committee,

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subcommittee, task force, or similar entity and the name, address, phone number, occupation, and

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tenure of each member;

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      (5) Agenda, meeting packages, and minutes of all meetings of the board of directors or

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trustees and any of its committees, subcommittees, task forces related to the conversion, or

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similar entities excluding those focused on peer review and confidential medical matters, that

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occurred within the two (2) year period prior to submission of the application, including, upon the

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request of the department or attorney general, any meeting packages;

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      (6) Articles of incorporation and certificate of incorporation;

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      (7) Bylaws and organizational charts;

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      (8) Organizational structure for existing transacting parties and each partner, affiliate,

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parent, subsidiary or related corporate entity in which the acquiror has a twenty percent (20%) or

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greater ownership interest;

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      (9) Conflict of interest statements, policies and procedures;

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      (10) Names, addresses and phone numbers of professional consultants engaged in

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connection with the proposed conversion;

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      (11) Copies of audited income statements, balance sheets, other financial statements, and

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management letters for the past three (3) years and to the extent they have been made public,

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audited interim financial statements and income statements together with detailed description of

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the financing structure of the proposed conversion including equity contribution, debt

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restructuring, stock issuance, partnership interests, stock offerings and the like;

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      (12) A detailed description of real estate issues including title reports for land owned and

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lease agreements concerning the proposed conversion;

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      (13) A detailed description as each relates to the proposed transaction for equipment

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leases, insurance, regulatory compliance, tax status, pending litigation or pending regulatory

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citations, pension plan descriptions and employee benefits, environmental reports, assessments

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and organizational goals;

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      (14) Copies of reports analyzing the proposed conversion during the past three (3) years

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including, but not limited to, reports by appraisers, accountants, investment bankers, actuaries and

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other experts;

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      (15) Copies of any opinions or memoranda addressing the state and federal tax

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consequences of the proposed conversion prepared for a transacting party by an attorney,

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accountant, or other expert;

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      (16) A description of the manner in which the price was determined including which

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methods of valuation and what data were used, and the names and addresses of persons preparing

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the documents, and this information is deemed to be proprietary;

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      (17) Patient statistics for the past three (3) years and patient projections for the next one

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year including patient visits, admissions, emergency room visits, clinical visits, and visits to each

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department of the hospital, admissions to nursing care or visits by affiliated home health care

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entities;

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      (18) The name and mailing address of all licensed facilities in which the for-profit

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corporation maintains an ownership interest or controlling interest or operating authority;

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      (19) A list of pending or adjudicated citations, violations or charges against the facilities

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listed in subdivision (a)(18) brought by any governmental agency or accrediting agency within

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the past three (3) years and the status or disposition of each matter with regard to patient care and

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charitable asset matters;

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      (20) A list of uncompensated care provided over the past three (3) years by each facility

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listed in subdivision (a)(18) and detail as to how that amount was calculated;

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      (21) Copies of all documents related to:

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      (i) Identification of all charitable assets

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      (ii) Accounting of all charitable assets for the past three (3) years; and

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      (iii) Distribution of the charitable assets including, but not limited to, endowments,

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restricted, unrestricted and specific purpose funds as each relates to the proposed transaction;

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      (22) A description of charity care and uncompensated care provided by the existing

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hospital for the previous five (5) three (3) year period to the present including a dollar amount

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and a description of services provided to patients;

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      (23) A description of bad debt incurred by the existing hospital for the previous five (5)

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three (3) for which payment was anticipated but not received;

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      (24) A description of the plan as to how the new hospital will provide community benefit

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and charity care during the first five (5) three (3) years of operation;

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      (25) A description of how the new hospital will monitor and value charity care services

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and community benefit;

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      (26) The names of persons currently holding a position as an officer, director, board

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member, or senior level management manager who will or will not maintain any position with the

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new hospital and whether any said person will receive any salary, severance stock offering or any

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financial gain, current or deferred, as a result of or in relation to the proposed conversion;

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      (27) Copies of capital and operating budgets or other financial projections for the new

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hospital during the first three (3) years of operation;

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      (28) Copies of plans relative to staffing during the first three (3) years at the new

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hospital;

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      (29) A list of all medical services, departments and clinical services, and administrative

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services which will be maintained at the new hospital;

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      (30) A description of criteria established by the board of directors of the existing hospital

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for pursuing a proposed conversion with one or more health care providers;

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      (31) Copies of reports of any due diligence review performed by each transacting party

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in relation to the proposed conversion. These reports are to be held by the attorney general and

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department of health as confidential and not released to the public regardless of any determination

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made pursuant to section 23-17.14-32 and not withstanding any other provision of the general

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laws;

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      (32) A description of request for proposals issued by the existing hospital relating to

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pursuing a proposed conversion;

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      (33) Copies of reports analyzing affiliations, mergers, or other similar transactions

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considered by any of the transacting parties during the past three (3) years, including, but not

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limited to, reports by appraisers, accountants, investment bankers, actuaries and other experts;

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      (34) A copy of proposed contracts or description of proposed contracts or arrangements

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with management senior managers, board members, officers, or directors of the existing hospital

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for severance consulting services or covenants not to compete following completion of the

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proposed conversion;

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      (35) A copy or description of all agreements or proposed agreements reflecting any

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current and/or future employment or compensated relationship between the acquiror (or any

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related entity) and any officer, director, board member, or senior level manager of the acquiree

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(or any related entity);

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      (36) A copy or description of all agreements executed or anticipated to be executed by

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any of the transacting parties in connection with the proposed conversion;

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      (37) Copies of documents or description of any proposed plan for any entity to be

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created for charitable assets, including but not limited to, endowments, restricted, unrestricted and

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specific purpose funds, the proposed articles of incorporation, by-laws, mission statement,

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program agenda, method of appointment of board members, qualifications of board members,

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duties of board members, and conflict of interest policies;

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      (38) Description of all departments, clinical, social, or other services or medical services

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that will be eliminated or significantly reduced at the new hospital;

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      (39) Description of staffing levels of all categories of employees, including full-time,

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part-time, and contract employees currently working at or providing services to the existing

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hospital and description of any anticipated or proposed changes in current staffing levels;

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      (40) Current, signed original Copies of current conflict of interest forms from all

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incumbent or recently incumbent officers, directors, members of the board, boards of directors or

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trustees, and senior management, managers, including the medical directors, of the transacting

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parties chairpersons or department chairpersons and medical directors on a form acceptable to the

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attorney general; "incumbent or recently incumbent" means those individuals holding the position

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at the time the application is submitted and any individual who held a similar position within one

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year prior to the application's acceptance;

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      (41) If the acquiror is a for profit corporation that has acquired a not for profit hospital

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under the provisions of this chapter, the application shall also include a complete statement of

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performance during the preceding one year with regard to the terms and conditions of approval of

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conversion and each projection, plan, or description submitted as part of the application for any

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conversion completed under an application submitted pursuant to this section and made a part of

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an approval for the conversion pursuant to section 23-17.14-7, or 23-17.14-8 or 23-14.14-19;

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      (42) Copies of IRS Form 990 for any transacting party required by federal law to file

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such a form for each of the five (5) three (3) years prior to the submission of the application.

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      (b) Two (2) copies of the initial application shall be provided to each of the department

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of health and department of the attorney general simultaneously by United States mail, certified,

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return receipt requested. Filings may be submitted electronically if acceptable to the department

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of health and/or attorney general.

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      (c) Except for information determined by the attorney general in accordance with section

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23-17.14-32 to be confidential and/or proprietary, or otherwise required by law to be maintained

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as confidential, the initial application and supporting documentation shall be considered public

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records and shall be available for inspection upon request.

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     23-17.14-7. Review process of the department of attorney general and the

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department of health and review criteria by department of attorney general. -- (a) The

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department of attorney general shall review all conversions involving a hospital in which one or

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more of the transacting parties involves a for profit corporation as the acquiror and a not for profit

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corporation as the acquiree.

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      (b) In reviewing proposed conversions in accordance with this section and section 23-

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17.14-10, the department of attorney general and department of health shall adhere to the

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following process:

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      (1) Within thirty (30) days after receipt of an initial application, the department of

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attorney general and department of health shall jointly advise the applicant, in writing, whether

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the application is complete, and, if not, shall specify all additional information the applicant is

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required to provide;

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      (2) The applicant will submit the additional information within thirty (30) working days.

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If the additional information is submitted within the thirty (30) day period, the department of

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attorney general and department of health will have ten (10) working days within which to

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determine acceptability of the additional information. If the additional information is not

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submitted by the applicant within the thirty (30) day period or if either agency determines the

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additional information submitted by the applicant is insufficient, the application will be rejected

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without prejudice to the applicant's right to resubmit, the rejection to be accompanied by a

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detailed written explanation of the reasons for rejection. If the department of attorney general and

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department of health determine the additional information to be as requested, the applicant will be

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notified, in writing, of the date of acceptance of the application;

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      (3) Within thirty (30) working days after acceptance of the initial application, the

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department of attorney general shall render its determination on confidentiality pursuant to

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section 23-17.14-32 and the department of attorney general and department of health shall publish

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notice of the application in a newspaper of general circulation in the state and shall notify by

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United States mail any person who has requested notice of the filing of the application. The

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notice shall:

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      (i) State that an initial application has been received and accepted for review,

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      (ii) State the names of the transacting parties,

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      (iii) State the date by which a person may submit written comments to the department of

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attorney general or department of health, and

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      (iv) Provide notice of the date, time and place of informational meeting open to the

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public which shall be conducted within sixty (60) days of the date of the notice;

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      (4) The department of attorney general and department of health shall each approve,

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approve with conditions directly related to the proposed conversion, or disapprove the application

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within one hundred and eighty (180) one hundred twenty (120) days of the date of acceptance of

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the application.

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      (c) In reviewing an application pursuant to subsection (a) the department of the attorney

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general shall consider the following criteria:

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      (1) Whether the proposed conversion will harm the public's interest in trust property

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given, devised, or bequeathed to the existing hospital for charitable, educational or religious

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purposes located or administered in this state;

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      (2) Whether a trustee or trustees of any charitable trust located or administered in this

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state will be deemed to have exercised reasonable care, diligence, and prudence in performing as

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a fiduciary in connection with the proposed conversion;

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      (3) Whether the board established appropriate criteria in deciding to pursue a conversion

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in relation to carrying out its mission and purposes;

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      (4) Whether the board formulated and issued appropriate requests for proposals in

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pursuing a conversion;

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      (5) Whether the board considered the proposed conversion as the only alternative or as

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the best alternative in carrying out its mission and purposes;

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      (6) Whether any conflict of interest exists concerning the proposed conversion relative to

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members of the board, officers, directors, senior management, experts or consultants engaged in

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connection with the proposed conversion including, but not limited to, attorneys, accountants,

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investment bankers, actuaries, health care experts, or industry analysts;

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      (7) Whether individuals described in subdivision (c)(6) were provided with contracts or

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consulting agreements or arrangements which included pecuniary rewards based in whole, or in

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part on the contingency of the completion of the conversion;

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      (8) Whether the board exercised due care in engaging consultants with the appropriate

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level of independence, education, and experience in similar conversions;

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      (9) Whether the board exercised due care in accepting assumptions and conclusions

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provided by consultants engaged to assist in the proposed conversion;

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      (10) Whether the board exercised due care in assigning a value to the existing hospital

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and its charitable assets in proceeding to negotiate the proposed conversion;

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      (11) Whether the board exposed an inappropriate amount of assets by accepting in

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exchange for the proposed conversion future or contingent value based upon success of the new

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hospital;

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      (12) Whether officers, directors, board members or senior management will receive

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future contracts in existing, new, or affiliated hospital or foundations;

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      (13) Whether any members of the board will retain any authority in the new hospital;

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      (14) Whether the board accepted fair consideration and value for any management

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contracts made part of the proposed conversion;

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      (15) Whether individual officers, directors, board members or senior management

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engaged legal counsel to consider their individual rights or duties in acting in their capacity as a

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fiduciary in connection with the proposed conversion;

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      (16) Whether the proposed conversion results in an abandonment of the original

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purposes of the existing hospital or whether a resulting entity will depart from the traditional

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purposes and mission of the existing hospital such that a cy pres proceeding would be necessary;

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      (17) Whether the proposed conversion contemplates the appropriate and reasonable fair

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market value;

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      (18) Whether the proposed conversion was based upon appropriate valuation methods

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including, but not limited to, market approach, third party report or fairness opinion;

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      (19) Whether the conversion is proper under the Rhode Island Nonprofit Corporation

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Act;

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      (20) Whether the conversion is proper under applicable state tax code provisions;

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      (21) Whether the proposed conversion jeopardizes the tax status of the existing hospital;

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      (22) Whether the individuals who represented the existing hospital in negotiations

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avoided conflicts of interest;

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      (23) Whether officers, board members, directors, or senior management deliberately

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acted or failed to act in a manner that impacted negatively on the value or purchase price;

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      (24) Whether the formula used in determining the value of the existing hospital was

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appropriate and reasonable which may include, but not be limited to factors such as: the multiple

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factor applied to the "EBITDA" -- earnings before interest, taxes, depreciation, and amortization;

11-57

the time period of the evaluation; price/earnings multiples; the projected efficiency differences

11-58

between the existing hospital and the new hospital; and the historic value of any tax exemptions

11-59

granted to the existing hospital;

11-60

      (25) Whether the proposed conversion appropriately provides for the disposition of

11-61

proceeds of the conversion that may include, but not be limited to:

11-62

      (i) Whether an existing entity or a new entity will receive the proceeds;

11-63

      (ii) Whether appropriate tax status implications of the entity receiving the proceeds have

11-64

been considered;

11-65

      (iii) Whether the mission statement and program agenda will be or should be closely

11-66

related with the purposes of the mission of the existing hospital;

11-67

      (iv) Whether any conflicts of interest arise in the proposed handling of the conversion's

11-68

proceeds;

12-1

      (v) Whether the bylaws and articles of incorporation have been prepared for the new

12-2

entity;

12-3

      (vi) Whether the board of any new or continuing entity will be independent from the new

12-4

hospital;

12-5

      (vii) Whether the method for selecting board members, staff, and consultants is

12-6

appropriate;

12-7

      (viii) Whether the board will comprise an appropriate number of individuals with

12-8

experience in pertinent areas such as foundations, health care, business, labor, community

12-9

programs, financial management, legal, accounting, grant making and public members

12-10

representing diverse ethnic populations and the interests of the affected community;

12-11

      (ix) Whether the size of the board and proposed length of board terms are sufficient;

12-12

      (26) Whether the transacting parties are in compliance with the Charitable Trust Act,

12-13

chapter 9 of title 18; and

12-14

      (27) Whether a right of first refusal to repurchase the assets has been retained; .

12-15

      (28) Whether the character, commitment, competence and standing in the community, or

12-16

any other communities served by the transacting parties are satisfactory;

12-17

      (29) Whether a control premium is an appropriate component of the proposed

12-18

conversion; and

12-19

      (30) Whether the value of assets factored in the conversion is based on past performance

12-20

or future potential performance.

12-21

     23-17.14-9. Initial application -- Conversions limited to not-for-profit corporations. -

12-22

- All conversions which are limited to not-for-profit corporations which involve the

12-23

establishment, maintenance, or operation of a hospital require prior approval of both the

12-24

department of attorney general and the department of health or, if eligible for expedited review

12-25

under section 23-17.14-12.1, prior approval of the department of health and subject to the

12-26

authority of the attorney general pursuant to section 23-17.14-21 hereof. The review by the two

12-27

(2) departments shall occur concurrently and neither department shall delay its review or

12-28

determination because the other department has not completed its review or issued its

12-29

determination. The applicant may request that the review by the department occur concurrently

12-30

with the review of any relevant federal regulatory authority. The transacting parties shall file an

12-31

initial application pursuant to the provisions set forth in section 23-17.14-6 or section 23-17.14-

12-32

12.1.

12-33

     23-17.14-10. Review process of department of attorney general and department of

12-34

health and criteria by department of attorney general -- Conversions limited to not-for-

13-1

profit corporations. -- (a) In reviewing an application of a conversion involving a hospital in

13-2

which the transacting parties are limited to not-for-profit corporations, except as provided in

13-3

section 23-17.14-12.1, the department of attorney general and department of health shall adhere

13-4

to the following process:

13-5

      (1) Within thirty (30) days after receipt of an initial application, the department of

13-6

attorney general and department of health shall jointly advise the applicant, in writing, whether

13-7

the application is complete, and, if not, shall specify all additional information the applicant is

13-8

required to provide;

13-9

      (2) The applicant will submit the additional information within thirty (30) working days.

13-10

If the additional information is submitted within the thirty (30) day period, the department of

13-11

attorney general and department of health will have ten (10) working days within which to

13-12

determine acceptability of the additional information. If the additional information is not

13-13

submitted by the applicant within the thirty (30) day period or if either agency determines the

13-14

additional information submitted by the applicant is insufficient, the application will be rejected

13-15

without prejudice to the applicant's right to resubmit, the rejection to be accompanied by a

13-16

detailed written explanation of the reasons for rejection. If the department of attorney general and

13-17

department of health determine the additional information to be as requested, the applicant will be

13-18

notified, in writing, of the date of acceptance of the application;

13-19

      (3) Within thirty (30) working days after acceptance of the initial application, the

13-20

department of attorney general shall render its determination on confidentiality pursuant to

13-21

section 23-17.14-32 and the department of attorney general and department of health shall publish

13-22

notice of the application in a newspaper of general circulation in the state and shall notify by

13-23

United States mail any person who has requested notice of the filing of the application. The

13-24

notice shall:

13-25

      (i) State that an initial application has been received and accepted for review,

13-26

      (ii) State the names of the transacting parties,

13-27

      (iii) State the date by which a person may submit written comments to the department of

13-28

attorney general or department of health, and

13-29

      (iv) Provide notice of the date, time and place of informational meeting open to the

13-30

public which shall be conducted within sixty (60) days of the date of the notice;

13-31

      (4) The department of attorney general and department of health shall each approve,

13-32

approve with conditions directly related to the proposed conversion, or disapprove the application

13-33

within one hundred and eighty (180) one hundred twenty (120) days of the date of acceptance of

13-34

the application.

14-1

      (b) In reviewing an application of a conversion involving a hospital in which the

14-2

transacting parties are limited to not-for-profit corporations, the department of attorney general

14-3

may consider the following criteria:

14-4

      (1) Whether the proposed conversion will harm the public's interest in trust property

14-5

given, devised, or bequeathed to the existing hospital for charitable, educational or religious

14-6

purposes located or administered in this state;

14-7

      (2) Whether a trustee or trustees of any charitable trust located or administered in this

14-8

state will be deemed to have exercised reasonable care, diligence, and prudence in performing as

14-9

a fiduciary in connection with the proposed conversion;

14-10

      (3) Whether the board established appropriate criteria in deciding to pursue a conversion

14-11

in relation to carrying out its mission and purposes;

14-12

      (4) Whether the board considered the proposed conversion as the only alternative or as

14-13

the best alternative in carrying out its mission and purposes;

14-14

      (5) Whether any conflict of interest exists concerning the proposed conversion relative to

14-15

members of the board, officers, directors, senior management, experts or consultants engaged in

14-16

connection with the proposed conversion including, but not limited to, attorneys, accountants,

14-17

investment bankers, actuaries, health care experts, or industry analysts;

14-18

      (6) Whether individuals described in subdivision (b)(5) were provided with contracts or

14-19

consulting agreements or arrangements which included pecuniary rewards based in whole, or in

14-20

part on the contingency of the completion of the conversion;

14-21

      (7) Whether the board exercised due care in engaging consultants with the appropriate

14-22

level of independence, education, and experience in similar conversions;

14-23

      (8) Whether the board exercised due care in accepting assumptions and conclusions

14-24

provided by consultants engaged to assist in the proposed conversion;

14-25

      (9) Whether officers, directors, board members or senior management will receive future

14-26

contracts;

14-27

      (10) Whether any members of the board will retain any authority in the new hospital;

14-28

      (11) Whether the board accepted fair consideration and value for any management

14-29

contracts made part of the proposed conversion;

14-30

     (12) Whether individual officers, directors, board members or senior management

14-31

engaged legal counsel to consider their individual rights or duties in acting in their capacity as a

14-32

fiduciary in connection with the proposed conversion;

14-33

      (13) Whether the proposed conversion results in an abandonment of the original

14-34

purposes of the existing hospital or whether a resulting entity will depart from the traditional

15-1

purposes and mission of the existing hospital such that a cy pres proceeding would be necessary;

15-2

      (14) Whether the proposed conversion contemplates the appropriate and reasonable fair

15-3

market value;

15-4

      (15) Whether the proposed conversion was based upon appropriate valuation methods

15-5

including, but not limited to, market approach, third-party report or fairness opinion;

15-6

      (16) Whether the conversion is proper under the Rhode Island Nonprofit Corporation

15-7

Act;

15-8

      (17) Whether the conversion is proper under applicable state tax code provisions;

15-9

      (18) Whether the proposed conversion jeopardizes the tax status of the existing hospital;

15-10

      (19) Whether the individuals who represented the existing hospital in negotiations

15-11

avoided conflicts of interest;

15-12

      (20) Whether officers, board members, directors, or senior management deliberately

15-13

acted or failed to act in a manner that impacted negatively on the value or purchase price;

15-14

      (21) Whether the transacting parties are in compliance with the Charitable Trust Act,

15-15

chapter 9 of title 18.

15-16

     23-17.14-11. Criteria for the department of health -- Conversions limited to not-for-

15-17

profit corporations. -- In reviewing an application of a conversion involving a hospital in which

15-18

the transacting parties are limited to not-for-profit corporations, the department shall consider the

15-19

following criteria:

15-20

      (1) Whether the character, commitment, competence, and standing in the community, or

15-21

any other communities served by the proposed transacting parties are satisfactory;

15-22

      (2) Whether sufficient safeguards are included to assure the affected community

15-23

continued access to affordable care;

15-24

      (3) Whether the transacting parties have provided satisfactory evidence that the new

15-25

hospital will provide health care and appropriate access with respect to traditionally underserved

15-26

populations in the affected community;

15-27

      (4) Whether procedures or safeguards are assured to insure that ownership interests will

15-28

not be used as incentives for hospital employees or physicians to refer patients to the hospital;

15-29

      (5) Whether the transacting parties have made a commitment to assure the continuation

15-30

of collective bargaining rights, if applicable, and retention of the workplace workforce;

15-31

      (6) Whether the transacting parties have appropriately accounted for employment needs

15-32

at the facility and addressed workforce retraining needed as a consequence of any proposed

15-33

restructuring;

16-34

      (7) Whether the conversion demonstrates that the public interest will be served

16-35

considering the essential medical services needed to provide safe and adequate treatment,

16-36

appropriate access and balanced health care delivery to the residents of the state.

16-37

     23-17.14-13. Reports, use of experts, costs. -- The department of health or the

16-38

department of attorney general may in effectuating the purposes of this chapter engage experts or

16-39

consultants including, but not limited to, actuaries, investment bankers, accountants, attorneys, or

16-40

industry analysts. All copies of reports prepared by experts and consultants, and costs associated

16-41

with the reports, shall be made available to the transacting parties and to the public. All costs

16-42

incurred under this provision shall be the responsibility of one or more transacting parties in an

16-43

amount to be determined by the attorney general or the director as they deem appropriate and

16-44

consistent with 23-17.14-12.1, if applicable. No application for a conversion made pursuant to the

16-45

requirements of this chapter shall be considered complete unless an agreement has been executed

16-46

with the attorney general or the director for the payment of costs in accordance with this section.

16-47

     23-17.14-19. Limits to acquisitions -- Community benefits requirements -- Filings

16-48

prohibited. -- (a) In effectuating the purposes of this chapter to evaluate, review and monitor the

16-49

new phenomenon of for-profit corporations gaining an interest in hospitals and the resulting

16-50

impact on the delivery of healthcare in the state, limitations on for-profit corporations involved in

16-51

hospital conversions are necessary Notwithstanding any other provisions in this chapter, nothing

16-52

herein shall be construed to prohibit a for-profit hospital, its subsidiaries or affiliates, from

16-53

applying for and receiving approval of a conversion of more than one hospital in the same year,

16-54

or any subsequent year, and each such application shall require review and approval from the

16-55

attorney general and the department of health in accordance with the provisions of this chapter.

16-56

      (b) No for-profit corporation, or its subsidiaries or affiliates, which applies for and

16-57

receives approval of a conversion of a hospital in accordance with the provisions of this chapter

16-58

shall be permitted to apply for approval of a conversion of a second hospital in this state for a

16-59

period of at least three (3) years after the initial conversion is finalized and implemented. This

16-60

subsection shall not be deemed to prohibit a for-profit corporation, together with its subsidiaries

16-61

and affiliates, from applying for or receiving approval of a conversion of two (2) affiliated

16-62

hospitals in this state provided that: (1) one of the two (2) hospital licenses involved in the

16-63

conversion was issued prior to July 22, 1997; and (2) this license involves a specialty

16-64

rehabilitation hospital that has a maximum of ninety (90) beds. A conversion undertaken pursuant

16-65

to this provision shall be considered one conversion and a for-profit corporation which receives

16-66

approval for the conversion shall be subject to the three (3) year period between the finalization

16-67

and implementation of a first conversion and the application for a second conversion as set forth

16-68

in this subsection.

17-1

      (c)(b) In the event that a for-profit corporation applies to hold, own, or acquire an

17-2

ownership or controlling interest greater than twenty percent (20%) in more than one for

17-3

conversion of an additional hospital one year subsequent to the finalization and implementation

17-4

of a prior license, all provisions of this chapter must be met. and, in In addition to the review

17-5

process and criteria set forth in this chapter, the department shall have the sole authority and

17-6

discretion to determine:

17-7

      (1) Whether the for-profit corporation provided community benefits as required or

17-8

promised in connection with obtaining and holding a license or interest therein during the

17-9

previous license period;

17-10

      (2) Whether all terms and conditions of the prior license have been met, including but

17-11

not limited to, the conditions in sections 23-17.14-19(b) and section 23-17.14-15;

17-12

      (3) Whether all federal, state and local laws, ordinances and regulations have been

17-13

complied with relative to any prior license;

17-14

      (4) Whether the for-profit corporation planned, implemented, monitored and reviewed a

17-15

community benefit program during the prior license period;

17-16

      (5) Whether the for-profit corporation maintained, enhanced or disrupted the essential

17-17

medical services in the affected community or the state;

17-18

      (6) Whether the for-profit corporation provided an appropriate amount of charity care

17-19

necessary to maintain or enhance a safe and accessible healthcare delivery system in the affected

17-20

community and the state; and

17-21

      (7) Whether the for-profit corporation demonstrated a substantial linkage between the

17-22

hospital and the affected community by providing one or more of the following benefits;

17-23

uncompensated care, charity care, cash or in kind donations to community programs, education

17-24

and training of professionals in community health issues, relevant research initiatives or essential

17-25

but unprofitable medical services if needed in the affected community.

17-26

      (d)(c) The director may hold a public hearing to solicit input to assess the performance of

17-27

a for-profit corporation or its affiliates or subsidiaries in providing community benefits in the

17-28

affected community or the state.

17-29

      (e) The director shall have the sole authority to deny a for-profit corporation, its affiliates

17-30

or subsidiaries, or successors, permission for one or more than one license and, for good cause,

17-31

may prohibit a for-profit corporation or its affiliates or subsidiaries from filing an application

17-32

pursuant to this chapter for a period not to exceed ten (10) years.

17-33

     23-17.14-28. Concurrent approval -- License. – (a) The director may consider the

17-34

requirement of this chapter and the requirements of sections 23-17-1 -- 23-17-45 together upon

18-1

completion of the initial application. The director may approve, approve with conditions, or

18-2

disapprove one or both requests filed pursuant to this chapter, including expedited review under

18-3

section 12.1, and sections 23-17-1 -- 23-17-45. The approvals of the director required by this

18-4

chapter shall be subject to chapter 35 of title 42. For any conversion subject to this chapter, the

18-5

director may combine any hearings required by this chapter with any hearings on similar or

18-6

related matters required by sections 23-17-1 -- 23-17-45 and shall consider issues of market share

18-7

especially as they affect quality, access, and affordability of services.

18-8

     (b) Any approval of a conversion involving a for-profit corporation as an acquiror may

18-9

include, but not be limited to, the acquiror’s acceptance of the following conditions as determined

18-10

by the director of health:

18-11

     (1) Maintain a governing body for each converted hospital whose membership shall

18-12

include uncompensated, independent individuals who reside in Rhode Island;

18-13

     (2) Make a financial contribution to support the state’s coordinated health planning

18-14

process;

18-15

     (3) Adhere to restrictions on financial incentives to patient or health plan enrollees to

18-16

receive hospital services outside of the state of Rhode Island;

18-17

     (4) Keep the new hospital open and operational for a minimum period of time;

18-18

     (5) Make a minimum investment to support primary care in the Rhode Island

18-19

communities served by the new hospital;

18-20

     (6) Not enter into any contract or other service or purchasing arrangements with an

18-21

affiliated legal entity except for contracts or arrangements to provide services or products that are

18-22

reasonably necessary to accomplish the health care purposes of the relevant hospital and for

18-23

compensation that is consistent with fair market value for the services actually rendered, or the

18-24

products actually provided;

18-25

     (7) Adhere to a maximum amount of annual net revenue accruing to owners in any

18-26

hospital fiscal year; and

18-27

     (8) Adhere to an annual maximum corporate allocation, or equivalent charge, to any

18-28

affiliated organization(s) in any hospital fiscal year.

18-29

     (c) Any approval of a conversion involving a for-profit corporation as an acquiror may

18-30

include, but not be limited to, the acquiror’s acceptance of conditions, as determined by the

18-31

attorney general. These conditions may include, but not be limited to, the acquiror’s adherence to

18-32

a minimum investment to protect the assets, financial health, and well-being of the new hospital

18-33

and for community benefit.

19-34

      (d) For a period of five (5) years following the effective date of the conversion, when

19-35

approval of a conversion involves a for-profit corporation as an acquiror:

19-36

     (1) The acquiror shall file reports with the department and the attorney general on or

19-37

before March 1st of each calendar year detailing compliance with the conditions in subsection (b)

19-38

and any other conditions on the conversion approval or license of the new hospital. Failure to

19-39

comply with any of such conditions or the charity care requirements contained in section 23-

19-40

17.14-15 shall be cause for penalties to be applied in accordance with section 23-17.14-30;

19-41

     (2) The department of health and the department of attorney general shall monitor, assess

19-42

and evaluate the acquiror’s compliance with all of the foregoing conditions, as well as annually

19-43

review whether conditions should be revised due to a change in circumstances, and the impact of

19-44

the conversion on health care costs and services within the communities served; and

19-45

     (3) The acquirer shall pay for the costs of the department of health and the department of

19-46

attorney general in performing such monitoring, evaluation and assessment in an amount to be

19-47

determined by the attorney general or the director as they deem appropriate, which should be

19-48

placed in escrow during the term of the monitoring period. No application for a conversion made

19-49

pursuant to the requirements of this chapter shall be approved unless an agreement has been

19-50

executed with the attorney general and the director for the payment of reasonable costs in

19-51

accordance with this section.

19-52

     23-17.14-31. Powers of the department of health. -- The department may adopt rules,

19-53

including measurable standards, as may be necessary to accomplish the purpose of this chapter. In

19-54

doing so, the department shall review other departmental regulations that may have duplicative

19-55

requirements, including change of effective control regulations and processes, determination of

19-56

need requirements and application requirements under section 23-17.14-18, if applicable, and

19-57

may streamline the process by eliminating duplicative requirements and providing for concurrent

19-58

regulatory review and combined hearings to the maximum extent possible to promote efficiency

19-59

and avoid duplication of effort and resources.

19-60

     SECTION 2. Chapter 23-17.14 of the General Laws entitled "The Hospital Conversions

19-61

Act" is hereby amended by adding thereto the following section:

19-62

     23-17.14-12.1. Expedited review for unaffiliated community hospitals. –

19-63

Notwithstanding subsection 23-17.14-6(a) and section 23-17.14-10 of this chapter if a proposed

19-64

conversion involves: Two (2) or more hospitals that are not in common control with another

19-65

hospital; or one hospital not under common control with another hospital and a hospital system

19-66

parent corporation; or two (2) affiliated hospitals the conversion of which was previously

19-67

approved in accordance with chapter 23-17.14, such conversion will be reviewed under an

19-68

expedited review process conducted solely by the department of health (without derogation of the

20-1

authority of the attorney general in accordance with section 23-17.14-21), only if the acquiree and

20-2

acquiror are both nonprofit corporations exempt from taxation under section 501(a) of the United

20-3

States Internal Revenue Service Code as organizations described in section 501(c)(3) of such

20-4

code, or any successor provisions, and:

20-5

     (1) The acquiree and acquiror are both Rhode Island nonprofit corporations that have

20-6

directly or indirectly continuously operated at least one Rhode Island licensed hospital for at least

20-7

the preceding three (3) years; and

20-8

     (2) The acquiree operates a distressed Rhode Island hospital facing significant financial

20-9

hardship that may impair its ability to continue to operate without the proposed conversion and

20-10

has been designated to be distressed by the director of health after consideration of whether the

20-11

hospital meets some or all of the following criteria:

20-12

     (i) Operating loss for the two (2) most recently completed fiscal years;

20-13

     (ii) Less than fifty (50) days cash-on-hand;

20-14

     (iii) Current asset to liability ratio of less than one point five (1.5);

20-15

     (iv) Long-term debt to capitalization greater than seventy-five percent (75%);

20-16

     (v) Inpatient occupancy rate of less than fifty percent (50%).

20-17

     (b) The transacting parties shall file an initial application pursuant to this section which

20-18

shall include the following information with respect to each transacting party and the proposed

20-19

conversion:

20-20

     (1) A detailed summary of the proposed conversion;

20-21

     (2) Charter, articles of incorporation or certificate of incorporation for the transacting

20-22

parties and their affiliated hospitals, including amendments thereto;

20-23

     (3) Bylaws and organizational charts for the transacting parties and their affiliated

20-24

hospitals;

20-25

     (4) Organizational structure for the transacting parties and each partner, affiliate, parent,

20-26

subsidiary or related legal entity in which either transacting party has a twenty percent (20%) or

20-27

greater ownership interest or control;

20-28

     (5) All documents, reports, meeting minutes and presentations relevant to the transacting

20-29

parties’ board of directors' decision to propose the conversion;

20-30

     (6) Conflict of interest policies and procedures;

20-31

     (7) Copies of audited income statements, balance sheets, and other financial statements

20-32

for the past three (3) years for the transacting parties and their affiliated hospitals where

20-33

appropriate and to the extent they have been made public, audited interim financial statements

20-34

and income statements together with detailed descriptions of the financing structure of the

21-1

proposed conversion including equity contribution, debt restructuring, stock issuance and

21-2

partnership interests;

21-3

     (8) Copies of reports analyzing the proposed conversion during the past three (3) years

21-4

including, but not limited to, reports by appraisers, accountants, investment bankers, actuaries and

21-5

other experts;

21-6

     (9) Copies of current conflict of interest forms from all incumbent or recently incumbent

21-7

officers, members of the board of directors or trustees and senior managers of the transacting

21-8

parties; "incumbent or recently incumbent" means those individuals holding the position at the

21-9

time the application is submitted and any individual who held a similar position within one year

21-10

prior to the application's acceptance;

21-11

     (10) Copies of all documents related to: (i) Identification of all current charitable assets;

21-12

(ii) Accounting of all charitable assets for the past three (3) years; and (iii) Distribution of

21-13

charitable assets for the past three (3) years including, but not limited to, endowments, restricted,

21-14

unrestricted and specific purpose funds as each relates to the proposed conversion; and

21-15

     (11) A description of the plan as to how the affiliated hospitals will provide consolidated

21-16

healthcare services during the first three (3) years following the conversion.

21-17

     (c) In reviewing an application under an expedited review process, the department shall

21-18

consider the criteria in section 23-17.14-11.

21-19

     (d) Within twenty (20) working days of receipt by the department of an application

21-20

satisfying the requirements of subsection (b) above, the department will notify and afford the

21-21

public an opportunity to comment on the application.

21-22

     (e) The decision of the department shall be rendered within ninety (90) days of

21-23

acceptance of the application under this section.

21-24

     (f) Costs payable by the transacting parties under section 23-17.14-13 in connection with

21-25

an expedited review by the department under this section shall not exceed twenty-five thousand

21-26

dollars ($25,000) per one hundred million dollars ($100,000,000) of total net patient service

21-27

revenue of the acquiree in the most recent fiscal year for which audited financial statements are

21-28

available. This limit shall not apply to the department of attorney general’s review pursuant to

21-29

subsection 23-17.14-12.1(h).

21-30

     (g) Following a conversion, the new hospital shall provide on or before March 1 of each

21-31

calendar year a report in a form acceptable to the director containing all updated financial

21-32

information required to be disclosed pursuant to subdivision 23-17.14-12.1(b)(7).

21-33

     (h) If an expedited review is performed by the department pursuant to this section, the

21-34

department of attorney general shall perform a review of the proposed transaction as it deems

22-1

necessary, including, at a minimum, its impact upon the charitable assets of the transacting

22-2

parties. For this review, the department of attorney general shall be entitled to costs in accordance

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with section 23-17.14-13.

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     SECTION 3. This act shall take effect upon passage.

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LC00664/SUB A/2

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HEALTH AND SAFETY - HOSPITAL CONVERSIONS ACT

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     This act would comprehensively revise the Hospital Conversions Act.

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     This act would take effect upon passage.

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LC00664/SUB A/2

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