New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 4 - WORKERS' COMPENSATION
Part 8 - INDIVIDUAL SELF-INSURANCE
Section 11.4.8.9 - SELF-INSURERS' GUARANTEE FUND
Universal Citation: 11 NM Admin Code 11.4.8.9
Current through Register Vol. 35, No. 18, September 24, 2024
A. Commission membership is composed of all self-insurers as defined in Section 52-8-3(J) NMSA 1978, as a condition of their authority to individually self-insure in the state of New Mexico.
B. Withdrawal of membership:
(1) A member shall be
automatically withdrawn from the commission upon the termination of its
self-insurance certificate and payment of all assessments due to the date of
such termination.
(2)
Notwithstanding the termination of membership of a self-insured for whatever
reason, that self-insured shall remain liable to the commission for any
assessments imposed and based upon insolvencies occurring while the terminated
self-insured was a member of the commission.
C. Board of directors:
(1) A board of directors shall be appointed
pursuant to Section
52-8-5
NMSA 1978. Every member of the board of directors shall currently be a
representative of a commission member in good standing. The board may adopt
by-laws governing the functioning of the commission including the filling of
vacancies on the board, removal of board members and conflicts of interest. The
board of directors shall elect a chairperson, who shall also be president of
the corporation, and a vice-chairman, who shall also be vice president of the
corporation. The director shall be the secretary/treasurer of the
corporation.
(2) The commission
shall maintain such financial records as are necessary to properly reflect
assessments, receipts and disbursements (including paid claims) of all funds of
the commission. Such records shall also reflect the financial condition of the
commission at all times. The commission shall make available its financial
records to the administration when so requested.
(3) The commission shall make all necessary
records available to an independent auditor to facilitate audits of the
commission.
(4) All board members,
and such other personnel as may be employed by the board, shall be bonded in an
amount determined by the board to be adequate to protect the interests of the
commission.
(5) The board may open
one or more insured accounts in any number of state or federally chartered
financial institutions located in the state of New Mexico, in order to conduct
commission business. Reasonable delegation of deposit and withdrawal authority
in such accounts may be made, consistent with prudent fiscal policy, but,
except as is expressly provided herein, the withdrawal of commission funds
shall require the signatures of any two members of the board.
D. Powers and duties of the commission:
(1) The commission, through its
board of directors, shall have the power to:
(a) sue and be sued and appear and defend in
all actions and proceedings in its corporate name to the same extent as a
natural person;
(b) adopt and use a
common corporate seal and alter the same; provided, however, that such seal
shall always contain the words "not for profit corporation";
(c) elect or appoint such officers and agents
as its officers shall require and allow them reasonable compensation;
(d) make contracts and incur liabilities,
borrow money at such rates of interest as the corporation may determine, issue
its notes, bonds, other obligations and secure any of its obligations by
mortgage and pledge of any or all of its property, franchises or
income;
(e) purchase, take,
receive, lease, take by gift, devise or bequest, or otherwise acquire, own,
hold, improve, use or otherwise deal in and with real and personal property, or
any interest therein, wherever situated;
(f) have and exercise all powers necessary or
convenient to effect any or all of the purposes for which the corporation is
organized;
(g) purchase reinsurance
or excess insurance as is determined by the board of directors to be necessary
to effectuate the purposes and intent of Section
52-8-6(A)
NMSA 1978;
(h) review all
applicants for membership in the commission and make recommendations to the
director concerning the appropriateness of inclusion in, or termination from,
membership in the commission with respect to any applicant or member;
(i) provide for imposition of assessments
upon members to insure the financial stability of the fund as provided in
Section
52-8-6(A)
NMSA 1978; and
(j) request, upon a
majority vote of the board, that the administration determine the condition of
any member of the commission which the board in good faith believes may no
longer be qualified to be a member of the commission; within 30 days of receipt
of such request or for good cause shown, the administration shall make such
determination and shall advise the board of its findings; each request for a
determination shall be kept on file by the administration and it shall not be
open to public inspection pursuant to Section
52-5-21
NMSA 1978.
(2) The
commission through its board of directors shall have the following duties:
(a) The commission shall incorporate as a
not-for-profit corporation under the laws of New Mexico and shall maintain its
corporate status in good standing.
(b) The commission shall be deemed to stand
in the place of an insolvent employer to the extent of its obligations on
covered claims and, to such extent, shall have all rights, duties and
obligations of the insolvent employer as if the employer had not become
insolvent.
(c) As to any insolvency
proceeding, the commission shall periodically file with the receiver or
liquidator of the insolvent member statements of the covered claims paid by the
commission and estimates of anticipated claims on the commission. Such filing
shall preserve the rights of the commission against the assets of the insolvent
member.
(d) To maintain an
insolvency fund to meet the obligations of insolvent members, pursuant to
Section
52-8-7
NMSA 1978.
(e) At the conclusion of
any member insolvency in which the commission was obligated to pay covered
claims, prepare a report on the history and cause of such insolvency, based on
information available to the commission and submit such report to the
administration.
(f) Not later than
May 31st each year, submit a financial report for the preceding calendar year
in a form approved by the director.
E. Procedure for handling claims:
(1) The commission shall accept for
processing all claims against insolvent members which are made by the injured
party or their representative.
(2)
The commission shall be obligated to pay benefits to injured workers to the
same extent as the insolvent member and shall be added as a party in any
complaint for benefits or complaints for reduction or termination of benefits
filed with respect to the insolvent employer.
(3) The commission may employ persons to
process covered claims, giving them reasonable authority to process claims. Any
processing of claims in excess of that authority shall be subject to prior
approval by the board, or a claims committee established by the board for that
purpose.
(4) The commission shall
use every reasonable means to expedite the handling of covered claims submitted
by the injured worker or representative, and may adopt a protocol for the
handling of those claims.
F. Assessments: Determination and payment of assessment:
(1) Each member shall be given
not less than 30 days' notice of the date that an assessment is due and
payable.
(2) The assessment notice
shall advise the member to remit the assessment payable to the commission. Upon
receipt of the assessments, the commission shall deposit said funds in the
commission's accounts and shall use them for the purposes stated in the
Self-Insurers' Guarantee Fund Act.
(3) The commission shall immediately notify
the director if a member fails to pay an assessment when due. The director may
penalize the member or revoke its authority to self-insure pursuant to Section
52-1-61 NMSA
1978, and these rules.
(4) The
board shall enforce its right to collect any assessment remaining unpaid 60
days after it shall have become due by appropriate action at law or in equity
against the non-paying member.
(5)
For purposes of calculating assessments, the self-insured may deduct any
subrogation recovery in such amounts as are recovered in the same assessment
year as they are paid.
(6) If two
or more self-insureds combine certificates, the fund balance for the combined
entity shall be combined.
(7)
Assessments paid by a parent on behalf of a subsidiary which has its own
certificate shall be allocated to the subsidiary.
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