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AB-651 Nonprofit health facilities: sale of assets: Attorney General approval.(2017-2018)

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Date Published: 03/31/2017 04:00 AM
AB651:v98#DOCUMENT

Amended  IN  Assembly  March 30, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 651


Introduced by Assembly Member Muratsuchi

February 14, 2017


An act to amend Sections 5914, 5915, 5916, 5917, 5920, 5921, 5922, and 5923 of the Corporations Code, relating to health facilities.


LEGISLATIVE COUNSEL'S DIGEST


AB 651, as amended, Muratsuchi. Nonprofit health facilities: sale of assets: Attorney General approval.
Existing law requires any nonprofit corporation that is subject to the Nonprofit Public Benefit Corporation Law a nonprofit corporation, as defined, that operates or controls a health facility, as defined, or operates or controls a facility that provides similar health care to provide written notice to, and obtain the written consent of, the Attorney General prior to selling or otherwise disposing of a material amount of its assets to a for-profit corporation or entity, to a mutual benefit corporation or entity, or to another nonprofit corporation or entity.
This bill would require the notice to the Attorney General from the public benefit corporation to include a list of all languages widely spoken in the primary languages spoken at the facility and the threshold languages for Medi-Cal beneficiaries, as determined by the State Department of Health Care Services for the county in which the facility is located and authorizes located. The bill also would authorize the Attorney General to require the written notice be provided in any of those languages.
Existing law provides that the Attorney General has discretion to give conditional consent or to not consent to consent to, give conditional consent to, or to not consent to, the agreement or transaction and requires the Attorney General to consider any factors he or she deems relevant, including, but not limited to, whether the terms are fair and reasonable.
This bill would require the Attorney General to consider whether the agreement or transaction will have an adverse impact on significant cultural interests in may have a significant effect on the availability and accessibility of cultural interests provided by the facility in the affected community.
Existing law requires the Attorney General to conduct one or more public meetings prior to issuing its decision whether to consent to the proposed agreement or transaction, to issue a notice of the public meeting, as specified, and, in any case, to issue its decision within 60 days of the receipt of the written notice from the public benefit corporation, subject to one additional 45-day extension under specified circumstances.
The bill instead would require the Attorney General to issue its decision within 90 days of the receipt of the written notice from the public benefit corporation and nonprofit corporation. The bill also would require the Attorney General to provide the notice to the public in English and any other language that is widely spoken in the county where the facility is located. in the primary languages spoken at the facility and the threshold languages for Medi-Cal beneficiaries for the county in which the facility is located, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 5914 of the Corporations Code is amended to read:

5914.
 (a) (1) Any nonprofit corporation that is defined in Section 5046 and operates or controls a health facility, as defined in Section 1250 of the Health and Safety Code, or operates or controls a facility that provides similar health care, shall be required to provide written notice to, and to obtain the written consent of, the Attorney General prior to entering into any agreement or transaction to do either of the following:
(A) Sell, transfer, lease, exchange, option, convey, or otherwise dispose of, its assets to a for-profit corporation or entity or to a mutual benefit corporation or entity when a material amount of the assets of the nonprofit corporation are involved in the agreement or transaction.
(B) Transfer control, responsibility, or governance of a material amount of the assets or operations of the nonprofit corporation to any for-profit corporation or entity or to any mutual benefit corporation or entity.
(2) The substitution of a new corporate member or members that transfers the control of, responsibility for, or governance of the nonprofit corporation shall be deemed a transfer for purposes of this article. The substitution of one or more members of the governing body, or any arrangement, written or oral, that would transfer voting control of the members of the governing body, shall also be deemed a transfer for purposes of this article.
(b) The notice to the Attorney General provided for in this section shall include and contain the information the Attorney General determines is required. The notice, including any other information provided to the Attorney General under this article, and that is in the public file, shall be made available by the Attorney General to the public in written form, as soon as is practicable after it is received by the Attorney General. The notice shall include a list of all languages widely spoken in a county in which a health facility subject to transaction the primary languages spoken at the facility and the threshold languages for Medi-Cal beneficiaries, as determined by the State Department of Health Care Services for the county in which the facility is located. The Attorney General may require the nonprofit corporation to provide the notice in any of these languages.
(c) This section shall not apply to a nonprofit corporation if the agreement or transaction is in the usual and regular course of its activities or if the Attorney General has given the corporation a written waiver of this section as to the proposed agreement or transaction.
(d) This section shall apply to any foreign nonprofit corporation that operates or controls a health facility, as defined in Section 1250 of the Health and Safety Code, or a facility that provides similar health care.

SEC. 2.

 Section 5915 of the Corporations Code is amended to read:

5915.
 Within 90 days of the receipt of the written notice required by Section 5914, the Attorney General shall notify the public benefit corporation in writing of the decision to consent to, give conditional consent to, or not consent to the agreement or transaction. The Attorney General may extend this period for one additional 45-day period if any of the following conditions are satisfied:
(a) The extension is necessary to obtain information pursuant to subdivision (a) of Section 5919.
(b) The proposed agreement or transaction is substantially modified after the first public meeting conducted by the Attorney General in accordance with Section 5916.
(c) The proposed agreement or transaction involves a multifacility health system serving multiple communities, rather than a single facility.

SEC. 3.

 Section 5916 of the Corporations Code is amended to read:

5916.
 Prior to issuing any written decision referred to in Section 5915, the Attorney General shall conduct one or more public meetings, one of which shall be in the county in which the facility is located, to hear comments from interested parties. At least 14 days before conducting the public meeting, the Attorney General shall provide written notice of the time and place of the meeting through publication in one or more newspapers of general circulation in the affected community and to the board of supervisors of the county in which the facility is located. This notice shall be provided in English and in any other language that is the widely spoken language in the county in which the facility is located, as contained in the notice pursuant to subdivision (b) of Section 9514. the primary languages spoken at the facility and the threshold languages for Medi-Cal beneficiaries, as determined by the State Department of Health Care Services for the county in which the facility is located. If a substantive change in the proposed agreement or transaction is submitted to the Attorney General after the initial public meeting, the Attorney General may conduct an additional public meeting to hear comments from interested parties with respect to that change.

SEC. 4.

 Section 5917 of the Corporations Code is amended to read:

5917.
 The Attorney General shall have discretion to consent to, give conditional consent to, or not consent to any agreement or transaction described in subdivision (a) of Section 5914. In making the determination, the Attorney General shall consider any factors that the Attorney General deems relevant, including, but not limited to, whether any of the following apply:
(a) The terms and conditions of the agreement or transaction are fair and reasonable to the nonprofit corporation.
(b) The agreement or transaction will result in inurement to any private person or entity.
(c) Any agreement or transaction that is subject to this article is at fair market value. In this regard, “fair market value” means the most likely price that the assets being sold would bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably and in their own best interest, and a reasonable time being allowed for exposure in the open market.
(d) The market value has been manipulated by the actions of the parties in a manner that causes the value of the assets to decrease.
(e) The proposed use of the proceeds from the agreement or transaction is consistent with the charitable trust on which the assets are held by the health facility or by the affiliated nonprofit health system.
(f) The agreement or transaction involves or constitutes any breach of trust.
(g) The Attorney General has been provided, pursuant to Section 5250, with sufficient information and data by the nonprofit corporation to evaluate adequately the agreement or transaction or the effects thereof on the public.
(h) The agreement or transaction may create a significant effect on the availability or accessibility of health care services to the affected community.
(i) The proposed agreement or transaction is in the public interest.
(j) The agreement or transaction may have an adverse impact on significant cultural interests a significant effect on the availability and accessibility of cultural interests provided by the facility in the affected community.

SEC. 5.

 Section 5920 of the Corporations Code is amended to read:

5920.
 (a) (1) Any nonprofit corporation that is defined in Section 5046 and operates or controls a health care facility, as defined in Section 1250 of the Health and Safety Code, or operates or controls a facility that provides similar health care, shall be required to provide written notice to, and to obtain the written consent of, the Attorney General prior to entering into any agreement or transaction to do either of the following:
(A) Sell, transfer, lease, exchange, option, convey, or otherwise dispose of, its assets to another nonprofit corporation or entity when a material amount of the assets of the nonprofit corporation are involved in the agreement or transaction.
(B) Transfer control, responsibility, or governance of a material amount of the assets or operations of the nonprofit corporation to another nonprofit corporation or entity.
(2) The substitution of a new corporate member or members that transfers the control of, responsibility for, or governance of the nonprofit corporation, the substitution of one or more members of the governing body that would transfer voting control of the members of the governing body, or any arrangement, written or oral, that would transfer voting control of the entity shall be deemed a transfer for purposes of this article.
(b) The notice to the Attorney General provided for in this section shall contain the information the Attorney General determines is required. The notice, including any other information provided to the Attorney General under this article, and that is the public file, shall be made available by the Attorney General to the public in written form, as soon as is practicable after it is received by the Attorney General. The notice to the Attorney General shall include a list of all languages widely spoken in a county in which the health facility subject to the transaction is located. the primary languages spoken at the facility and the threshold languages for Medi-Cal beneficiaries as determined by the State Department of Health Care Services for the county in which the facility is located. The Attorney General may require the nonprofit corporation to provide the notice in any of those languages.
(c) This section shall not apply to a nonprofit corporation if the agreement or transaction is in the usual and regular course of its activities or if the Attorney General has given the corporation a written waiver of this section as to the proposed agreement or transaction.
(d) This section shall apply to any foreign nonprofit corporation that operates or controls a health facility, as defined in Section 1250 of the Health and Safety Code, or a facility that provides similar health care.
(e) This section shall not apply to an agreement or transaction if the other party to the agreement or transaction is an affiliate, as defined in Section 5031, of the transferring nonprofit corporation or entity, and the corporation or entity has given the Attorney General 20 days advance notice of the agreement or transaction.

SEC. 6.

 Section 5921 of the Corporations Code is amended to read:

5921.
 Within 90 days of the receipt of the written notice required by Section 5920, the Attorney General shall notify the nonprofit corporation in writing of the decision to consent to, give conditional consent to, or not consent to the agreement or transaction. The Attorney General may extend this period for one additional 45-day period if any of the following conditions are satisfied:
(a) The extension is necessary to obtain relevant information from any state agency, experts, or consultants.
(b) The proposed agreement or transaction is substantially modified after the first public meeting conducted by the Attorney General in accordance with Section 5922.
(c) The proposed agreement or transaction involves a multifacility health system serving multiple communities, rather than a single facility.

SEC. 7.

 Section 5922 of the Corporations Code is amended to read:

5922.
 Prior to issuing any written decision referred to in Section 5921, the Attorney General shall conduct one or more public meetings, one of which shall be in the county in which the facility is located, to hear comments from interested parties. At least 14 days before conducting the public meeting, the Attorney General shall provide written notice of the time and place of the meeting through publication in one or more newspapers of general circulation in the affected community and to the board of supervisors of the county in which the facility is located. This notice shall be provided in English and in any other language that is the widely spoken language in the county in which the facility is located, as contained in the notice pursuant to subdivision (b) of Section 5920. the primary languages spoken at the facility and the threshold languages for Medi-Cal beneficiaries as determined by the State Department of Health Care Services for the county in which the facility is located. If a substantive change in the proposed agreement or transaction is submitted to the Attorney General after the initial public meeting, the Attorney General may conduct an additional public meeting to hear comments from interested parties with respect to that change.

SEC. 8.

 Section 5923 of the Corporations Code is amended to read:

5923.
 The Attorney General shall have discretion to consent to, give conditional consent to, or not consent to any agreement or transaction described in subdivision (a) of Section 5920. In making the determination, the Attorney General shall consider any factors that the Attorney General deems relevant, including, but not limited to, whether any of the following apply:
(a) The terms and conditions of the agreement or transaction are fair and reasonable to the nonprofit corporation.
(b) The agreement or transaction will result in inurement to any private person or entity.
(c) Fair market value of the agreement or transaction, meaning the most likely price that the assets being sold would bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably, and in their own best interest, and a reasonable time being allowed for exposure in the open market.
(d) The market value has been manipulated by the actions of the parties in a manner that causes the value of the assets to decrease.
(e) The proposed use of the proceeds from the agreement or transaction is consistent with the charitable trust on which the assets are held by the health facility or by the affiliated nonprofit health system.
(f) The agreement or transaction involves or constitutes any breach of trust.
(g) The Attorney General has been provided, pursuant to Section 5250, with sufficient information and data by the nonprofit public benefit corporation to evaluate adequately the agreement or transaction or the effects thereof on the public.
(h) The agreement or transaction may create a significant effect on the availability or accessibility of health care services to the affected community.
(i) The proposed agreement or transaction is in the public interest.
(j) The agreement or transaction may have an adverse impact on significant cultural interests a significant effect on the availability and accessibility of cultural interests provided by the facility in the affected community.