SENATE BILL 367
53rd legislature - STATE OF NEW MEXICO - first session, 2017
Carroll H. Leavell
RELATING TO INSURANCE; AMENDING SECTIONS OF THE NEW MEXICO INSURANCE CODE; AMENDING REQUIREMENTS RELATED TO EXAMINATION REPORTS AND INVESTIGATORY HEARINGS; CHANGING ANNUAL FINANCIAL STATEMENT FILING PENALTIES; ENACTING A SEVERABILITY SECTION TO THE RISK-BASED CAPITAL ACT; REMOVING STOP-LOSS INSURANCE FROM THE LIST OF ACCIDENT AND HEALTH INSURANCE PRODUCTS; ALLOWING ACCIDENT AND HEALTH INSURERS TO WRITE STOP-LOSS INSURANCE; ALLOWING CASUALTY INSURERS TO CONTINUE TO WRITE ACCIDENT AND HEALTH INSURANCE; REVISING VARIOUS REQUIREMENTS RELATED TO SURPLUS LINES INSURANCE; ALLOWING INSURERS TO PAY CLAIMS BY ELECTRONIC FUND TRANSFER; AMENDING THE INSURANCE FRAUD ACT TO ESTABLISH A FEE PAYMENT DEADLINE AND LATE PAYMENT PENALTY; INCLUDING STUDENT HEALTH POLICIES WITHIN PROVISIONS RELATING TO INDIVIDUAL HEALTH INSURANCE; REMOVING STUDENT HEALTH PLANS FROM THE LIST OF BLANKET HEALTH INSURANCE PRODUCTS AND FROM THE LIST OF PRODUCTS THAT ARE NOT MANAGED HEALTH CARE PLANS; EXTENDING THE SUPERINTENDENT OF INSURANCE'S REVIEW PERIOD FOR MARKETING MATERIALS AND FOR CREDIT LIFE AND CREDIT HEALTH PRODUCT FILINGS; REPEALING THE SURPLUS LINES INSURANCE MULTISTATE COMPLIANCE COMPACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 59A-4-9 NMSA 1978 (being Laws 1984, Chapter 127, Section 53, as amended) is amended to read:
"59A-4-9. EXAMINATION REPORT--CONTENTS.--[Upon] No later than sixty days following completion of an examination, the examiner in charge shall [make a true] file with the office of superintendent of insurance a verified, written examination report [thereof comprising]. The examination report shall comprise only facts appearing upon the books, records or other documents of the person examined, or from information provided to the examiner during the course of the examination by the examinee's officers or agents and other individuals examined concerning its affairs, together with [such] the conclusions and recommendations of the examiners as may reasonably be warranted from [such] the facts. The [report of] examination report shall be verified by the oath of the examiner in charge of the examination."
SECTION 2. Section 59A-4-10 NMSA 1978 (being Laws 1984, Chapter 127, Section 54, as amended) is amended to read:
"59A-4-10. EXAMINATION REPORT [DISTRIBUTION]--CONFERENCE [AND HEARING--ADOPTING]--ADOPTION ORDERS--INVESTIGATORY HEARINGS.--
A. Upon completion of the examination and receipt of the examination report, the superintendent shall [furnish two copies thereof] transmit the report to the person examined and shall allow the person a reasonable period, but not to exceed twenty days, within which to review the report and to file with the superintendent in writing requested corrections or modifications, with the reasons therefor. For good [cause] reason shown, the superintendent may grant reasonable extension of the review period.
B. [As soon as reasonably possible] Within twenty days after the superintendent's receipt of [such] the request, the person examined shall confer with the superintendent and examiner relative to requested corrections and modification. [If through such conference the report is acceptable to the person examined with such changes as the superintendent approves, the superintendent shall adopt the report as so changed. If the report is not acceptable, the superintendent shall hold a hearing with respect to the report and adopt the report with such changes as result with the superintendent's approval from the conference and hearing.
C. If no changes are requested, upon expiration of the period allowed by the superintendent for review of the report, the superintendent may adopt the report.
D. At any point prior to adoption of the examination report, the superintendent may reject the report with directions to the examiners to reopen the examination for purposes of obtaining additional data, documentation or information, and the examiner in charge shall subsequently report in accordance with Section 59A-4-9 NMSA 1978.]
C. Within thirty days of the end of the period allowed for the receipt of written submissions or rebuttals, the superintendent shall fully consider and review the examination report, together with any written submission or rebuttal, any conference and any relevant portion of the examiner's work papers and shall enter an order. An order entered pursuant to this subsection shall be accompanied by findings of fact and conclusions of law resulting from the superintendent's consideration and review of the examination report, any written submission or rebuttal, any conferences and any relevant portion of the examiner's work papers. An order shall be considered a final administrative decision that may be appealed pursuant to Section 59A-4-20 NMSA 1978. An order shall be served on all parties by certified mail, together with a copy of the adopted examination report. An order issued pursuant to this subsection shall:
(1) adopt the examination report as filed or with modification or corrections. If the examination report reveals that the person is operating in violation of statute, rule or prior order of the superintendent, the superintendent may order the person to take any action that the superintendent considers necessary and appropriate to cure the violation;
(2) reject the examination report with directions to the examiners to reopen the examination for purposes of obtaining additional data, documentation or information and refiling pursuant to Section 59A-4-9 NMSA 1978; or
(3) call for an investigatory hearing with no less than twenty days' notice to the person for purposes of obtaining additional documentation, data, information or testimony.
D. An investigatory hearing held pursuant to Paragraph (3) of Subsection C of this section:
(1) may be conducted by the superintendent or the superintendent may authorize a representative to conduct the hearing; provided that the superintendent shall not authorize an examiner to conduct the hearing;
(2) shall be conducted as a nonadversarial, confidential investigatory proceeding, as necessary for the resolution of any inconsistency, discrepancy or disputed issue apparent upon the face of the examination report or raised by or as a result of the superintendent's review of work papers and conferences or by the written submission or rebuttal of the person; and
(3) shall proceed expeditiously with discovery by the person limited to those work papers of the examiner that tend to substantiate any assertions set forth in any written submission or rebuttal.
E. Relating to an investigatory hearing held pursuant to Paragraph (3) of Subsection C of this section, the superintendent or the superintendent's representative may issue a subpoena to compel the attendance of any witness or the production of any document that the superintendent or the superintendent's representative deems relevant to the investigation, whether the document is under the control of the office of superintendent of insurance, the person being examined or any other person. Documents produced shall be included in the record and testimony taken by the superintendent or the superintendent's representative and shall be made under oath and preserved for the record. The superintendent or the superintendent's representative shall pose questions to any person subpoenaed. Thereafter, the person being examined and the office of superintendent of insurance may present testimony relevant to the investigation. Only the superintendent or the superintendent's representative shall conduct cross-examination. The person being examined and the office of superintendent of insurance shall be permitted to make closing statements and may be represented by counsel of the person's choice. Nothing in this section shall be construed to require the office of superintendent of insurance to disclose any information or record that would indicate or demonstrate the existence or content of any investigation or activity of a criminal justice agency.
F. Within twenty days of the conclusion of an investigatory hearing pursuant to Paragraph (3) of Subsection C of this section, the superintendent shall enter an order in accordance with Paragraph (1) of Subsection C of this section."
SECTION 3. Section 59A-4-12 NMSA 1978 (being Laws 1984, Chapter 127, Section 56) is amended to read:
"59A-4-12. EXAMINATION REPORT--INFORMATION TO MANAGEMENT OF DOMESTIC ENTITIES.--If the examination is of a domestic insurer or other person domiciled in New Mexico, when the examination report has been filed for public inspection, the chief executive officer of the insurer or person shall cause to be delivered to each member of the examinee's board of directors, or other similar governing body, a copy of the report, or summary thereof, and of its recommendations approved by the superintendent [and the officer's certificate to the effect that the report or summary has been so delivered shall be deemed to constitute proof that the contents of the report or summary are known to each such member]. Within ninety days of the issuance of the adopted report or within fifteen days after the first board meeting after the issuance of the adopted report, whichever occurs first, the insurer shall file affidavits executed by each of its directors stating under oath that they have received a copy of the adopted report and related orders."
SECTION 4. Section 59A-5-30 NMSA 1978 (being Laws 1984, Chapter 127, Section 97) is amended to read:
"59A-5-30. PENALTIES FOR LATE, FALSE ANNUAL STATEMENTS.--
A. Any insurer failing, without just cause reasonably beyond control of the insurer, to file its annual statement as required in Section [96 of this article] 59A-5-29 NMSA 1978 shall be required to pay a penalty of one hundred dollars ($100) for each day's delay, but not to exceed five thousand dollars ($5,000) in aggregate amount. [to be recovered in a civil action brought against the insurer in the name of the State of New Mexico by the attorney general. Such] This penalty may be in addition to any refusal to continue, or suspension or revocation of, the insurer's certificate of authority for such failure.
B. Any director, officer, agent or employee of any insurer who subscribes to, makes or concurs in making or publishing any annual or other statement of the insurer required by law, knowing the same to contain any material statement [which] that is false, shall upon conviction thereof be guilty of a misdemeanor and upon conviction shall be sentenced to a fine of not more than one thousand dollars ($1,000), unless by its extent and nature the offense is punishable under other statutes as a felony."
SECTION 5. Section 59A-7-3 NMSA 1978 (being Laws 2016, Chapter 89, Section 6) is amended to read:
"59A-7-3. ACCIDENT AND HEALTH INSURANCE.--
A. Accident and health includes:
[A.] (1) accident;
[B.] (2) accidental death and dismemberment;
[C.] (3) blanket accident and sickness;
[D.] (4) credit disability;
[E.] (5) critical illness;
[F.] (6) dental;
[G.] (7) disability income;
[H. excess or stop loss;
I.] (8) home health care;
[J.] (9) hospital indemnity;
[K.] (10) long-term care;
[L.] (11) major medical;
[M.] (12) medical expense;
[N.] (13) medicare supplement;
[O.] (14) prescription drug;
[P.] (15) sickness;
[Q.] (16) specified disease;
[R.] (17) vision; and
[S.] (18) similar products relating to accident and health matters.
B. An insurer or a health maintenance organization authorized to transact accident and health insurance may write stop-loss liability insurance as listed in Paragraph (51) of Subsection A of Section 59A-7-6 NMSA 1978."
SECTION 6. Section 59A-7-6 NMSA 1978 (being Laws 2016, Chapter 89, Section 8) is amended to read:
A. Casualty includes:
[A.] (1) aircraft liability;
[B.] (2) auto commercial liability;
[C.] (3) auto private passenger liability;
[D.] (4) auto warranty contract;
[E.] (5) boiler and machinery;
[F.] (6) burglary and theft;
[G.] (7) collateral protection;
[H.] (8) commercial excess/umbrella
[I.] (9) commercial general liability;
[J.] (10) congenital defects;
[K.] (11) contractual liability;
[L.] (12) credit;
[M.] (13) credit property;
[N.] (14) creditor-placed dual/single
[O.] (15) crime;
[P.] (16) directors and officers liability;
[Q.] (17) employers liability;
[R.] (18) elevator;
[S.] (19) entertainment;
[T.] (20) errors and omissions;
[U.] (21) failure to file instrument;
[V.] (22) farm and ranch liability;
[W.] (23) fidelity bonds;
[X.] (24) fidelity insurance;
[Y.] (25) financial guaranty;
[Z.] (26) gap;
[AA.] (27) garage liability;
[BB.] (28) glass;
[CC.] (29) involuntary unemployment;
[DD.] (30) kidnap and ransom;
[EE.] (31) leakage and fire-extinguishing
[FF.] (32) legal liability;
[GG.] (33) liquor liability;
[HH.] (34) livestock;
[II.] (35) mechanical breakdown;
[JJ.] (36) medical malpractice;
[KK.] (37) mobile homes under transport;
[LL.] (38) money and securities;
[MM.] (39) motor club service contracts;
[NN.] (40) mortgage guaranty;
[OO.] (41) personal excess/umbrella
[PP.] (42) personal effects;
[QQ.] (43) personal liability;
[RR.] (44) personal property floater;
[SS.] (45) pollution liability;
[TT.] (46) premises and operations;
[UU.] (47) product liability;
[VV.] (48) products and completed
[WW.] (49) professional liability;
[XX.] (50) owners and contractors;
[YY.] (51) stop loss liability;
[ZZ.] (52) surety;
[AAA.] (53) title;
[BBB.] (54) vandalism and malicious
[CCC.] (55) workers' compensation; and
[DDD.] (56) similar products relating to
B. An insurer authorized to transact casualty insurance may write accident and health insurance as those terms are defined in Section 59A-7-3 NMSA 1978."
SECTION 7. Section 59A-14-2 NMSA 1978 (being Laws 1991, Chapter 125, Section 12, as amended) is amended to read:
"59A-14-2. DEFINITIONS.--As used in Chapter 59A, Article 14 NMSA 1978:
A. "affiliate" means, with respect to an insured, any entity that controls, is controlled by or is under common control with the insured;
B. "affiliated group" means any group of entities that are all affiliated;
C. "association" means the national association of insurance commissioners or any successor entity;
D. "authorized insurer" means, with respect to New Mexico, an insurer holding a valid and subsisting certificate of authority, issued by the superintendent, to transact insurance in New Mexico;
[D.] E. "control" means that an entity:
(1) [an entity] directly or indirectly or acting through one or more other persons owns, controls or has the power to vote twenty-five percent or more of any class of voting securities of another entity; or
(2) [an entity] controls in any manner the election of a majority of the directors or trustees of another entity;
[E.] F. "eligible surplus lines insurer" means a qualified nonadmitted insurer [approved and listed pursuant to Section 59A-14-4 NMSA 1978] with which a surplus lines broker may place surplus lines insurance pursuant to Section 59A-14-4 NMSA 1978;
[F.] G. "exempt commercial purchaser" means any person purchasing commercial insurance that, at the time of placement, meets the following requirements:
(1) the person employs or retains a qualified risk manager to negotiate insurance coverage;
(2) the person has paid aggregate nationwide commercial property and casualty insurance premiums in excess of one hundred thousand dollars ($100,000) in the immediately preceding twelve months; and
(3) the person:
(a) possesses a net worth in excess of twenty million dollars ($20,000,000), provided that this amount shall be adjusted every five years by rule of the superintendent to account for the percentage change in the consumer price index;
(b) generates annual revenues in excess of fifty million dollars ($50,000,000), provided that this amount shall be adjusted every five years by rule of the superintendent to account for the percentage change in the consumer price index;
(c) employs more than five hundred full-time or full-time-equivalent employees per insured entity or is a member of an affiliated group employing more than one thousand employees in the aggregate;
(d) is a not-for-profit organization or public entity generating annual budgeted expenditures of at least thirty million dollars ($30,000,000), provided that this amount shall be adjusted every five years by rule of the superintendent to account for the percentage change in the consumer price index; or
(e) is a municipality with a population in excess of fifty thousand persons;
[G.] H. "export" means to place insurance with a nonadmitted insurer;
[H.] I. "home state" means, with respect to an insured:
[(1) except as provided in Paragraph (3) of this subsection, the state in which an insured maintains its principal place of business or, in the case of an individual, the individual's principal residence;
(2) except as provided in Paragraph (3) of this subsection, if one hundred percent of the insured risk is located out of the state referred to in Paragraph (1) of this subsection, the state to which the greatest percentage of the insured's taxable premium for that insurance contract is allocated; or
(3) if more than one insured from an affiliated group are named insureds on a single nonadmitted insurance contract, "home state" means the home state, as determined pursuant to Paragraph (1) or (2) of this subsection, of the member of the affiliated group that has the largest percentage of premium attributed to it under the insurance contract]
(1) the state:
(a) in which an insured maintains its principal place of business or, in the case of an individual, the individual's principal residence; or
(b) to which the greatest percentage of the insured's taxable premium for that insurance contract is allocated, if one hundred percent of the insured risk is located out of the state referred to in Subparagraph (a) of this paragraph; or
(2) if more than one insured from an affiliated group are named insureds on a single nonadmitted insurance contract, "home state" means the home state, as determined pursuant to Paragraph (1) of this subsection, of the member of the affiliated group that has the largest percentage of premium attributed to it under the insurance contract;
[I.] J. "independently procured insurance" means insurance procured directly by an insured from a nonadmitted insurer;
K. "nonadmitted insurance" means any property and casualty insurance permitted to be placed [directly or] through a surplus lines broker with an eligible surplus lines insurer;
[J.] L. "nonadmitted insurer" means an insurer not licensed to engage in the business of insurance in New Mexico but does not include a risk retention group, as "risk retention group" is defined in the federal Liability Risk Retention Act of 1986;
[K.] M. "premium tax" means, with respect to surplus lines, any tax, fee, assessment or other charge imposed by a government entity directly or indirectly based on any payment made as consideration for an insurance contract for such insurance, including premium deposits, assessments, registration fees and any other compensation given in consideration for a contract of insurance;
N. "principal place of business" means, with respect to determining the home state of the insured, the state where the insured maintains its headquarters and where the insured's high-level officers direct, control and coordinate the business activities of the insured;
O. "producing broker" means the broker or agent dealing directly with the person seeking insurance if the home state of the person seeking insurance is New Mexico;
[L.] P. "professional designation" means:
(1) a designation as a chartered property and casualty underwriter issued by the American institute for chartered property and casualty underwriters;
(2) a designation as an associate in risk management issued by the insurance institute of America;
(3) a designation as a certified risk manager issued by the national alliance for insurance education and research;
(4) a designation as a RIMS fellow issued by the global risk management institute; or
(5) any other designation, certification or license determined by the superintendent to demonstrate minimum competency in risk management;
[M.] Q. "qualified risk manager" means, with respect to an exempt commercial purchaser, a person who:
(1) is an employee of, or a third-party consultant retained by, the exempt commercial purchaser;
(2) provides skilled services in loss prevention, loss reduction, risk and insurance coverage analysis and purchase of insurance; and
(a) a bachelor's degree or higher from an accredited college or university in risk management, business administration, finance, economics or any other field determined by the superintendent to demonstrate minimum competence in risk management and either: 1) three years of experience in risk financing, claims administration, loss prevention, risk and insurance coverage analysis or purchase of commercial lines of insurance; or 2) a professional designation;
(b) a professional designation and at least seven years of experience in risk financing, claims administration, loss prevention, risk and insurance coverage analysis or purchase of commercial lines of insurance;
(c) at least ten years of experience in risk financing, claims administration, loss prevention, risk and insurance coverage analysis or purchase of commercial lines of insurance; or
(d) a graduate degree from an accredited college or university in risk management, business administration, finance, economics or any other field determined by the superintendent to demonstrate minimum competence in risk management;
R. "reinsurance" means the assumption by an insurer of all or part of a risk undertaken originally by another insurer;
[N.] S. "surplus lines broker" means an individual, firm or corporation licensed under Chapter 59A, Article 14 NMSA 1978 to place insurance with eligible surplus lines insurers;
[O.] T. "surplus lines insurance" means any insurance permitted to be exported through a surplus lines broker in accordance with the provisions of Chapter 59A, Article 14 NMSA 1978;
[P.] U. "type of insurance" means one of the types of insurance required to be reported in the annual statement that must be filed with the superintendent by authorized insurers; and
[Q.] V. "unauthorized insurer" means a nonadmitted insurer."
SECTION 8. Section 59A-14-4 NMSA 1978 (being Laws 1991, Chapter 125, Section 14, as amended) is amended to read:
"59A-14-4. ELIGIBLE SURPLUS LINES INSURERS REQUIRED.--
A. No person shall export insurance on behalf of an insured whose home state is New Mexico except as authorized by and in accordance with Chapter 59A, Article 14 NMSA 1978.
B. No surplus lines broker shall transact surplus lines insurance with an insurer other than an eligible surplus lines insurer.
C. To qualify as an eligible surplus lines insurer, a nonadmitted insurer shall file information demonstrating to the superintendent's satisfaction that:
(1) the insurer is authorized to write the particular line of business in the state in which it is domiciled and:
(a) the insurer has capital and surplus or their equivalent that equals the greater of: 1) fifteen million dollars ($15,000,000); or 2) the minimum capital and surplus required in this state for that particular line of business; or
(b) the insurer has capital and surplus less than the amounts required in Subparagraph (a) of this paragraph but the superintendent affirmatively finds that the insurer is acceptable as an eligible surplus lines insurer. The finding shall be based upon such factors as quality of management, capital and surplus of any parent company, company underwriting profit and investment income trends and company record and reputation within the industry. In no event shall the superintendent make an affirmative finding of acceptability when the surplus lines insurer's capital and surplus is less than four million five hundred thousand dollars ($4,500,000);
(2) the insurer is a member of an "insurance exchange", which is an association of syndicates or insurers created by the laws of individual states, and shall maintain capital and surplus, or the equivalent thereof, of not less than fifty million dollars ($50,000,000) in the aggregate. For insurance exchanges that maintain funds for the protection of all insurance exchange policyholders, each individual syndicate shall maintain minimum capital and surplus, or the equivalent thereof, of not less than five million dollars ($5,000,000). In the event the insurance exchange does not maintain funds for the protection of all insurance exchange policyholders, each individual syndicate shall meet the minimum capital and surplus requirements of Subparagraph (a) of Paragraph (1) of this subsection;
(3) if the insurer is an alien insurer, the insurer is listed on the quarterly listing of alien insurers maintained by the international insurers department of the association; or
(4) if, pursuant to law, New Mexico has joined a compact or multistate agreement for the regulation of surplus lines insurance and the state, through the compact commission, has adopted nationwide uniform eligibility requirements, the insurer is in compliance with those requirements.
D. The superintendent shall maintain a list of eligible surplus line insurers from those qualified nonadmitted insurers that [qualify as an eligible surplus lines insurer under this section] file information to satisfy the criteria established under Subsection C of this section. In addition to the requirements of Subsection C of this section, in order to appear on the list of eligible surplus lines insurers, a nonadmitted insurer shall provide annually to the superintendent a copy of [its] the insurer's most current annual statement certified and sworn to by the insurer, unless the annual statement is available to the superintendent through the national association of insurance commissioners or from public sources. The statement shall be provided or made available at the same time it is provided to the insurer's domicile, but in no event more than nine months after the close of the period reported upon, and shall be either:
(1) filed with and approved by the regulatory authority in the insurer's domicile; or
(2) certified as correct and in accordance with applicable accounting principles by a public accounting firm licensed in the insurer's domicile.
In the case of an insurance exchange, the statement may be an aggregate combined statement of all underwriting syndicates operating during the period reported.
E. The listing [required] described by Subsection D of this section shall not be deemed to constitute or evidence the superintendent's [approval or] guaranty as to the financial condition or business practices of the insurer, and no insurer or other person shall allege orally or in writing that any such listing constitutes or implies the superintendent's approval.
F. The superintendent may adopt rules fixing reasonable conditions to be met by insurers for the listing. For good cause shown, the superintendent may in writing waive the requirements of this section to permit insurance to be placed as to a particular risk and insurer if the insurance is not otherwise reasonably obtainable."
SECTION 9. Section 59A-14-4.1 NMSA 1978 (being Laws 1991, Chapter 125, Section 15) is amended to read:
"59A-14-4.1. WITHDRAWAL OF ELIGIBILITY FROM A SURPLUS [LINE] LINES INSURER.--The superintendent may at any time declare an eligible surplus lines insurer to be ineligible if the superintendent has reason to believe that the insurer:
A. is in unsound financial condition;
B. is subject to delinquency proceedings in this state or any other jurisdiction;
C. is no longer eligible under Section 59A-14-4 NMSA 1978;
D. has violated the laws of this state, including [but not limited to] any violation of the Insurance Code or the superintendent's orders;
E. does not make reasonably prompt payment of loss claims or other obligations in this state or elsewhere;
F. has failed within sixty days to satisfy a final judgment rendered against it or against an insured for which it is legally liable under the terms of a contract of surplus lines insurance; or
G. has failed to satisfy the superintendent that it is fit to be allowed to continue to do business in this state.
The superintendent shall promptly mail notice of all such declarations to the insurer and to every surplus lines broker. Notice sent pursuant to this subsection to a licensed surplus lines broker may, at the option of the surplus lines broker, be sent by the superintendent via electronic mail."
SECTION 10. Section 59A-14-11 NMSA 1978 (being Laws 1991, Chapter 125, Section 17, as amended) is amended to read:
"59A-14-11. DUTY TO FILE REPORTS AND AFFIDAVITS.--
A. The producing broker shall complete, execute and provide to the surplus lines broker [an affidavit] a signed statement in substantially the form required by the superintendent, as to the diligent efforts to place the coverage with authorized insurers and the results thereof. The [affidavit] statement shall affirm that the insured was expressly advised prior to placement of the insurance and in the insurance policy that:
(1) the surplus lines insurer with which the insurance was to be placed is not an authorized insurer in this state and is not subject to the superintendent's supervision; and
(2) in the event the surplus lines insurer becomes insolvent, claims will not be paid nor will unearned premiums be returned by any New Mexico insurance guaranty fund.
B. [Within sixty days after the end of each calendar quarter, the surplus lines broker shall file with the superintendent a copy of each of the producing broker affidavits required by Subsection A of this section and a copy of the policy declarations page of all surplus lines insurance business transacted during the calendar quarter.] The surplus lines broker shall preserve the original producing broker [affidavits] statements in compliance with Section [59A-14-10] 59A-14-11 NMSA 1978. The declaration pages shall be confidential and shall not be subject to public inspection. The superintendent's copy of the [affidavits] statements shall be open to public inspection. If the producing broker has failed to provide the producing broker [affidavit] statement, the surplus lines broker shall at the time of quarterly filing notify the superintendent of the producing broker's failure to comply.
C. Each surplus lines broker shall, within sixty days after expiration of each calendar quarter, file with the superintendent a statement under the surplus lines broker's oath of all surplus lines insurance business transacted during such calendar quarter. The statement shall be on forms as prescribed and furnished by the superintendent and shall contain such information relative to the surplus lines insurance transaction as the superintendent may reasonably require for the purposes of Chapter 59A, Article 14 NMSA 1978."
SECTION 11. Section 59A-14-12 NMSA 1978 (being Laws 1984, Chapter 127, Section 250, as amended) is amended to read:
"59A-14-12. PREMIUM TAX ON SURPLUS LINES INSURANCE.--
A. Within sixty days after expiration of a calendar quarter, the surplus lines broker shall pay to the superintendent for the use of the state a tax on gross premiums received, less returned premiums, on surplus lines business where New Mexico is the home state of the insured transacted under the surplus lines broker's license during such calendar quarter as shown by the quarterly statement filed with the superintendent pursuant to Section 59A-14-11 NMSA 1978. The tax shall be at the same rate as is applicable to premiums of authorized insurers under Section 59A-6-2 NMSA 1978.
B. For purposes of this section, "premiums" shall include any additional amount charged the insured, including policy fees, risk purchasing group fees and inspection fees; but "premiums" shall not include any additional amount charged the insured for local, state or federal tax; regulatory authority fee; or examination fee, if any.
C. The superintendent may require surplus lines brokers [and insureds who have independently procured insurance] to file tax allocation reports annually detailing the portion of the nonadmitted insurance policy premiums attributable to properties, risks or exposures located in each state.
D. A penalty of ten percent of the amount of tax originally due, plus one percent of such tax amount for each month or fraction thereof of delinquency after the first thirty days of delinquency, shall be paid by the surplus lines broker for failure to pay the tax in full within sixty days after expiration of the calendar quarter as provided in Subsection A of this section; except that the superintendent may waive or remit the penalty if the superintendent finds that the failure or delay in payment arose from excusable mistake or excusable inadvertence.
E. For a surplus lines policy issued to an insured whose home state is New Mexico and where only a portion of the risk is located in New Mexico, the entire premium tax shall be paid to the superintendent in accordance with this section. If the superintendent finds that it would increase the efficiency of the surplus lines insurance marketplace as well as the regulation of the surplus lines market, the superintendent may enter into a compact or multistate surplus lines agreement relating to eligibility for placement of surplus lines insurance and the payment, reporting, collection and apportionment of surplus lines premium taxes. If a surplus lines policy covers risks or exposures only partially in New Mexico and the superintendent has entered into an agreement with other states for the apportionment of premium taxes for multistate risks, the tax payable pursuant to this section shall be computed and paid upon the proportion of the premium that is properly allocable to the risks or exposures located in New Mexico in accordance with the terms of any such agreement."
SECTION 12. Section 59A-16-21 NMSA 1978 (being Laws 1984, Chapter 127, Section 287, as amended) is amended to read:
"59A-16-21. PAYMENT OF CLAIM BY CHECK, [OR] DRAFT OR ELECTRONIC TRANSFER--FAILURE TO PAY--INTEREST.--
A. An insurer shall pay claims arising under its policies with checks or drafts [which], or, if a claimant requests, by electronic transfer of funds, that are promptly paid. Without amending other statutes dealing with checks, [and] drafts or electronic transfer of funds, a resident of New Mexico is granted a cause of action for ten percent of the amount of any check, [or] draft or electronic transfer of funds that is not paid or lawfully rejected within ten days of forwarding by a New Mexico financial institution, but in no case to be less than five hundred dollars ($500) plus costs of suit and [attorneys'] attorney fees. The insurer shall not be required to pay such civil damages for delay if it proves that the delay in processing and payment was caused by a financial institution or postal or delivery service and the check, [or] draft or electronic transfer of funds was paid or lawfully rejected within forty-eight hours of actual receipt of the draft, [or] check or electronic transfer of funds by the person on whom drawn.
B. Notwithstanding any provision of the Insurance Code, any insurer issuing any policy, certificate or contract of insurance, surety, guaranty or indemnity of any kind or nature [which] that fails for a period of forty-five days, after required proof of loss has been furnished, to pay to the person entitled the amount justly due shall be liable for the amount due and unpaid with interest on that amount at the rate of one and one-half times the prime lending rate, as determined by the superintendent, for New Mexico banks per year during the period the claim is unpaid.
C. Subsection B of this section shall not apply to any claims in arbitration or litigation."
SECTION 13. Section 59A-16C-14 NMSA 1978 (being Laws 1998, Chapter 115, Section 14, as amended) is amended to read:
"59A-16C-14. INSURANCE FRAUD FUND CREATED-- APPROPRIATION.--
A. There is created an "insurance fraud fund" in the state treasury. All fees collected [under] pursuant to the provisions of the Insurance Fraud Act shall be deposited in the fund and are subject to appropriation for use in paying the expenses incurred by the superintendent in carrying out the provisions of the Insurance Fraud Act. Interest on the fund shall be credited to the fund. The fund is a continuing, nonreverting fund.
B. To implement the provisions of the Insurance Fraud Act, the superintendent shall determine a rate of assessment and collect a fee from authorized insurers in an amount not less than two hundred dollars ($200) and not exceeding one-tenth of one percent of the correctly reported direct written premiums on policies written in New Mexico by the authorized insurers. The fee shall be due annually pursuant to rules promulgated by the superintendent. The failure of an insurer to pay this fee when due shall subject the insurer to a penalty of one thousand dollars ($1,000) per month or part thereof in which the fee remains unpaid. The superintendent, after taking into account unexpended money produced by collection of the fee, shall adjust the rate of assessment each year to produce the amount of money that [he] the superintendent estimates will be necessary to pay expenses incurred by the superintendent in carrying out the provisions of the Insurance Fraud Act. [The assessment for a title insurer, as defined in Section 59A-30-3 NMSA 1978, shall be determined by the superintendent at the annual hearing conducted pursuant to Section 59A-30-8 NMSA 1978.]
C. In calculating the direct written premiums for an insurer pursuant to the provisions of this section, all direct written premiums for workers' compensation insurance and for all types of insurance that are exempted by federal law shall be excluded from the calculation.
D. The fees required by this section are in addition to all other taxes and fees now imposed or that may be subsequently imposed."
SECTION 14. Section 59A-22-1 NMSA 1978 (being Laws 1984, Chapter 127, Section 422) is amended to read:
"59A-22-1. SCOPE OF ARTICLE.--[This article] Chapter 59A, Article 22 NMSA 1978 applies generally to policies of individual health insurance, including student health plan policies. Nothing in [this] that article shall apply to or affect:
A. any policy of [workmen's] workers' compensation insurance or any policy of liability insurance with or without supplementary expense coverage therein; [or]
B. life insurance, endowment or annuity contracts or contracts supplemental thereto [which] that contain only such provisions relating to health insurance as:
(1) provide additional benefits in case of death by accident; and
(2) operate to safeguard such contracts against lapse or to give a special surrender value or special benefit or annuity in event the insured or annuitant becomes totally and permanently disabled, as defined by the contract or supplemental contract;
C. group or blanket health insurance, except as stated in Chapter 59A, Article 23 [of the Insurance Code] NMSA 1978; or
SECTION 15. Section 59A-23-2 NMSA 1978 (being Laws 1984, Chapter 127, Section 461) is amended to read:
"59A-23-2. BLANKET HEALTH INSURANCE.--
A. Blanket health insurance is [hereby] declared to be that form of health insurance covering special groups of not [less] fewer than ten [(10)] persons as enumerated in one of the following paragraphs [(1) to (5) inclusive]:
(1) under a policy or contract issued to [any] a common carrier, which shall be deemed the policyholder, covering a group defined as all persons who may become passengers on [such] the common carrier;
(2) under a policy or contract issued to an employer [who] that shall be deemed the policyholder, covering [any] a group of employees defined by reference to exceptional hazards incident to [such] employment;
(3) under a policy or contract issued to a college, school or other institution of learning or to the head or principal thereof, who or which shall be deemed the policyholder, covering students and teachers;
(4) under a policy or contract issued in the name of [any] a volunteer fire department or first aid or other such volunteer group, which shall be deemed the policyholder, covering all of the members of [such] the department or group; or
(5) under a policy or contract issued to any other substantially similar group [which] that, in the discretion of the superintendent, may be subject to the issuance of a blanket health policy or contract.
B. An individual application shall not be required from a person covered under a blanket sickness or accident policy or contract.
C. All benefits under any blanket sickness and accident policy shall be payable to the person insured or [his] the person's agent, or to [his] the person's designated beneficiary or beneficiaries, or to [his] the person's estate, except that if the person insured [be] is a minor, such benefits may be made payable to [his] the minor's parent, guardian or other person actually supporting [him] the minor.
D. A blanket sickness or accident policy or contract issued to a college, school or other institution of learning or to the head or principal thereof shall not be identified or sold as a student health plan."
SECTION 16. Section 59A-23B-5 NMSA 1978 (being Laws 1991, Chapter 111, Section 5) is amended to read:
"59A-23B-5. POLICY OR PLAN DISCLOSURE REQUIREMENTS.--
A. Upon offering coverage under a policy or plan for any individual, family or group member, an insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan shall provide the individual, family or group member with a written disclosure statement containing at least the following:
(1) a general explanation of those mandated benefits and providers not covered by the policy or plan;
(2) an explanation of the managed care and cost control features of the policy or plan, along with all appropriate mailing addresses and telephone numbers to be utilized by the insured or enrollees seeking information or authorization; and
(3) an explanation of the primary and preventive care features of the policy or plan.
B. Any disclosure statement provided pursuant to Subsection A of this section shall be written in a clear and understandable form and format and shall be separate from the insurance policy or certificate or other evidence of coverage provided to the individual, family and group member.
C. Before any insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan issues a policy or plan contract, the insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan shall obtain from the prospective policyholder, contract holder or member a signed written statement in which the prospective policyholder, contract holder or member:
(1) certifies as to the eligibility of the individual, family or group for coverage under the policy or plan;
(2) acknowledges the limited nature of the coverage, including the managed care and cost control features of the policy or plan;
(3) acknowledges that if misrepresentations are made regarding eligibility for coverage under a policy or plan, the person making such misrepresentations shall forfeit coverage provided by the policy or plan if the insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan relied upon the misrepresentation to its detriment; and
(4) acknowledges that the prospective policyholder, contract holder or member had, at the time of application for the policy or plan, been offered the opportunity to purchase coverage that included all applicable mandated benefits and the prospective policyholder, contract holder or member rejected such coverage.
D. A copy of the written statement required by Subsection C of this section shall be provided to the prospective policyholder, contract holder or member no later than at the time of delivery of the policy or plan and the original signed written statement shall be retained in the files of the insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan while the policy or plan remains in effect or for three years, whichever is less.
E. Any material statement made by an applicant for coverage under a policy or plan that falsely certifies to the applicant's eligibility for coverage shall serve as the basis for termination of coverage under the policy or plan if the insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan detrimentally relied upon the misrepresentation.
F. All printed, radio or television communication intended to be used for marketing a policy or plan in the state and the disclosures required by Subsection A of this section shall be submitted for review and approval by the superintendent [of insurance] prior to use. The superintendent [of insurance] shall complete the review within [thirty] sixty days or else the materials submitted shall be deemed approved for use."
SECTION 17. Section 59A-25-8 NMSA 1978 (being Laws 1984, Chapter 127, Section 479) is amended to read:
"59A-25-8. FILING, APPROVAL AND WITHDRAWAL OF FORMS.--
A. All policies, certificates of insurance, notice of proposed insurance, applications for insurance, endorsements and riders delivered or issued for delivery in this state and the schedules of premium rates pertaining [thereto] to them shall be filed by the insurer with the superintendent.
B. The superintendent shall, within [thirty (30)] sixty days after the filing of any such policies, certificates of insurance, notice of proposed insurance, applications for insurance, endorsements and riders, disapprove any [such] form if the benefits provided therein are not reasonable in relation to the premium charge or if it contains provisions [which] that are unjust, unfair, inequitable, misleading, deceptive or encourage misrepresentation of the coverage or that are contrary to [any] a provision of the Insurance Code or of [any] a rule or regulation promulgated thereunder.
C. If the superintendent notifies the insurer that the form is disapproved, it is unlawful thereafter for the insurer to issue or use [such] the form. In [such] the notice, the superintendent shall specify the reason for disapproval and state that a hearing will be granted within twenty [(20)] days after request in writing by the insurer. No such policy, certificate of insurance, notice of proposed insurance, nor any application, endorsement or rider, shall be issued or used until the expiration of thirty [(30)] days after it has been [so] filed, unless the superintendent gives [his] prior written approval thereto.
D. The superintendent may, at any time after a hearing held not less than twenty [(20)] days after written notice to the insurer, withdraw [his] approval of [any such] a form on any ground set forth in Subsection B [above] of this section. The written notice of hearing shall state the reason for the proposed withdrawal.
E. The insurer shall not issue [such] the forms or use them after the effective date of [such] withdrawal.
F. If a group policy of credit life insurance or credit health insurance has been or is delivered in another state, the insurer shall be required to file only the group certificate and notice of proposed insurance delivered or issued for delivery in this state as specified in Subsections B and D of Section [478 of this article] 59A-25-7 NMSA 1978, and [such] the forms shall be approved by the superintendent if they conform with the requirements specified in such subsections and if the schedules of premium rates applicable to the insurance evidenced by [such] the certificate or notice are not in excess of the insurer's schedules of premium rates filed with the superintendent."
SECTION 18. Section 59A-57-3 NMSA 1978 (being Laws 1998, Chapter 107, Section 3) is amended to read:
"59A-57-3. DEFINITIONS.--As used in the Patient Protection Act:
A. "continuous quality improvement" means an ongoing and systematic effort to measure, evaluate and improve a managed health care plan's process in order to improve continually the quality of health care services provided to enrollees;
B. "covered person", "enrollee", "patient" or "consumer" means an individual who is entitled to receive health care benefits provided by a managed health care plan;
C. "department" means the office of superintendent of insurance [department];
D. "emergency care" means health care procedures, treatments or services delivered to a covered person after the sudden onset of what reasonably appears to be a medical condition that manifests itself by symptoms of sufficient severity, including severe pain, that the absence of immediate medical attention could be reasonably expected by a reasonable layperson to result in jeopardy to a person's health, serious impairment of bodily functions, serious dysfunction of a bodily organ or part or disfigurement to a person;
E. "health care facility" means an institution providing health care services, including a hospital or other licensed inpatient center; an ambulatory surgical or treatment center; a skilled nursing center; a residential treatment center; a home health agency; a diagnostic, laboratory or imaging center; and a rehabilitation or other therapeutic health setting;
F. "health care insurer" means a person that has a valid certificate of authority in good standing under the Insurance Code to act as an insurer, health maintenance organization, nonprofit health care plan or prepaid dental plan;
G. "health care professional" means a physician or other health care practitioner, including a pharmacist, who is licensed, certified or otherwise authorized by the state to provide health care services consistent with state law;
H. "health care provider" or "provider" means a person that is licensed or otherwise authorized by the state to furnish health care services and includes health care professionals and health care facilities;
I. "health care services" includes, to the extent offered by the plan, physical health or community-based mental health or developmental disability services, including services for developmental delay;
J. "managed health care plan" or "plan" means a health care insurer or a provider service network when offering a benefit that either requires a covered person to use, or creates incentives, including financial incentives, for a covered person to use, health care providers managed, owned, under contract with or employed by the health care insurer or provider service network. "Managed health care plan" or "plan" does not include a health care insurer or provider service network offering a traditional fee-for-service indemnity benefit or a benefit that covers only short-term travel, accident-only, limited benefit [student health plan] or specified disease policies;
K. "person" means an individual or other legal entity;
L. "point-of-service plan" or "open plan" means a managed health care plan that allows enrollees to use health care providers other than providers under direct contract with or employed by the plan, even if the plan provides incentives, including financial incentives, for covered persons to use the plan's designated participating providers;
M. "provider service network" means two or more health care providers affiliated for the purpose of providing health care services to covered persons on a capitated or similar prepaid flat-rate basis that hold a certificate of authority pursuant to the Provider Service Network Act;
N. "superintendent" means the superintendent of insurance; and
O. "utilization review" means a system for reviewing the appropriate and efficient allocation of health care services given or proposed to be given to a patient or group of patients."
SECTION 19. A new section of the Risk-Based Capital Act is enacted to read:
"[NEW MATERIAL] SEVERABILITY.--If any part or application of the Risk-Based Capital Act is held invalid, the remainder or its application to other situations or persons shall not be affected."
SECTION 20. REPEAL.--Sections 59A-14A-1 and 59A-14A-2 NMSA 1978 (being Laws 2011, Chapter 156, Sections 1 and 2) are repealed.
SECTION 21. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2017.
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