N.D. Cent. Code § 10-33-145

10-33-145. Transaction by a nonprofit corporation or entity operating or controlling a

hospital or nursing home - Attorney general's powers and duties - Experts - Continuing

appropriation.

1. Upon receipt of a notice under section 10-33-144, the attorney general may review

and investigate the proposed agreement or transaction and may require the nonprofit

corporation or entity operating or controlling a hospital or nursing home and the other

parties to the agreement or transaction to provide to the attorney general any

additional information relevant to the review or investigation of the proposed

agreement or transaction.

2. Upon receipt of a notice under section 10-33-144, the attorney general may review the

proposed agreement or transaction to determine whether consummation of the

proposed agreement or transaction by the nonprofit corporation or entity operating or

controlling a hospital or nursing home is consistent with the purposes of the nonprofit

corporation or entity operating or controlling a hospital or nursing home and the

fiduciary obligations of the officers and directors of the nonprofit corporation or entity

operating or controlling a hospital or nursing home and is in accordance with law. The

attorney general shall consider the following factors in reviewing and evaluating a

proposed agreement or transaction:

a. Whether appropriate steps were taken by the nonprofit corporation or entity

operating or controlling a hospital or nursing home to safeguard restricted assets

transferred to the acquiring entity;

b. Whether appropriate steps were taken by the nonprofit corporation or entity

operating or controlling a hospital or nursing home to ensure that any proceeds of

the proposed agreement or transaction are used for purposes consistent with

restrictions placed on assets of and with the purposes of the nonprofit corporation

or entity operating or controlling a hospital or nursing home;

c. Whether the terms and conditions of the proposed agreement or transaction are

fair and reasonable to the nonprofit corporation or entity operating or controlling a

hospital or nursing home, including whether the nonprofit corporation or entity

operating or controlling the hospital or nursing home will receive fair market value

for its assets and, in a proposed agreement or transaction involving a nursing

home, whether the proposed agreement or transaction constitutes a bona fide

transaction;

d. Whether any conflict of interest or breach of fiduciary duty exists or was

disclosed, including any conflict of interest or breach of fiduciary duty related to

directors and officers of, executives of, and experts retained by the nonprofit

corporation or entity operating or controlling a hospital or nursing home and any

other party to the agreement or transaction;

e. Whether the agreement or transaction will result in inurement, pecuniary gain, or

excess benefit to any person associated with the nonprofit corporation or entity

operating or controlling a hospital or nursing home or to any other person;

f. Whether the transaction is in the best interests of the nonprofit corporation or

entity operating or controlling a hospital or nursing home; and

g. Whether the transaction is authorized by the nonprofit corporation's governing

records.

3. For the purpose of reviewing and evaluating the factors identified in subsection 2, the

attorney general may retain experts if necessary and reasonable and may obtain

public comment regarding the proposed agreement or transaction. A contract entered

by the attorney general with an expert under this section does not require a bid and is

exempt from chapters 44-08 and 54-44.4. If the attorney general intends to seek

payment from the nonprofit corporation or entity operating or controlling a hospital or

nursing home for the cost of any expert retained under this subsection, at least five
proposed agreement or transaction. A contract entered

by the attorney general with an expert under this section does not require a bid and is

exempt from chapters 44-08 and 54-44.4. If the attorney general intends to seek

payment from the nonprofit corporation or entity operating or controlling a hospital or

nursing home for the cost of any expert retained under this subsection, at least five

days before retaining that expert, the attorney general shall notify the nonprofit

corporation or entity operating or controlling a hospital or nursing home of the expert

cost projected to be incurred. A nonprofit corporation or entity operating or controlling a

hospital or nursing home which receives notice under this subsection shall pay the

reasonable cost of any retained expert. If the nonprofit corporation or entity operating

or controlling a hospital or nursing home objects to paying the costs of an expert, the

corporation or entity may seek a district court order limiting the corporation's or entity's

liability for the costs. In determining whether to issue an order, the court shall consider

whether the expert is necessary and reasonable and the cost of the expert relative to

the value of the proposed agreement or transaction.

4. Section 44-04-18.4 applies to any information provided to the attorney general under

sections 10-33-144 through 10-33-147.

5. All costs, fees, and other moneys received under sections 10-33-144 through

10-33-149 must be deposited into the attorney general's operating fund. The moneys

in the fund are appropriated to pay the costs incurred in the attorney general's

performance of responsibilities pursuant to sections 10-33-144 through 10-33-149.