A. The risk management division of the general services department may:
(1) enter into contracts;
(2) procure insurance, reinsurance or employee group benefits; provided that any proposal or contract for the procurement of any group health care benefits shall be subject to the provisions of the Health Care Purchasing Act [Chapter 13, Article 7 NMSA 1978]; and provided further that reinsurance or excess coverage insurance may be placed by private negotiation, notwithstanding the provisions of the Procurement Code [13-1-28 to 13-1-199 NMSA 1978], if the insurance or reinsurance has a restricted number of interested carriers, the board determines that the coverage is in the interest of the state and cannot otherwise be procured for a reasonable cost and the director seeks the advice and review of the board in the placement and in designing private negotiation procedures;
(3) in the manner prescribed by Subsection E of Section 9-17-5 NMSA 1978, after a notice and a public hearing, prescribe by regulation reasonable and objective underwriting and safety standards for governmental entities and reasonable standards for municipal self-insurance pooling agreements covering liability under the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978] and adopt such other regulations as may be deemed necessary;
(4) compromise, adjust, settle and pay claims;
(5) pay expenses and costs;
(6) in the manner prescribed by Subsection E of Section 9-17-5 NMSA 1978, prescribe by rule or regulation the rating bases, assessments, penalties and risks to be covered by the public liability fund, the workers' compensation retention fund and the public property reserve fund and the extent such risks are to be covered;
(7) issue certificates of coverage in accordance with Paragraph (6) of this subsection:
(a) to any governmental entity for any tort liability risk covered by the public liability fund;
(b) to any governmental entity for any personal injury liability risk or for the defense of any errors or act or omission or neglect or breach of duty, including the risks set forth in Paragraph (2) of Subsection B and Paragraph (2) of Subsection D of Section 41-4-4 NMSA 1978; and
(c) to any governmental entity for any part of risk covered by the workers' compensation retention fund, the surety bond fund or the public property reserve fund;
(8) study the risks of all governmental entities;
(9) initiate the establishment of safety programs and adopt regulations to carry out such programs in the manner prescribed by Subsection E of Section 9-17-5 NMSA 1978;
(10) hire a safety program director who shall coordinate all safety programs of all state agencies;
(11) consult with and advise local public bodies on their risk management problems; and
(12) employ full-time legal counsel who shall be under the exclusive control and supervision of the director and the secretary of general services.
B. The risk management division of the general services department shall provide liability coverage for the following risks:
(1) a claim made pursuant to the provisions of 42 U.S.C. Section 1983 against a nonprofit corporation, members of its board of directors or its employees when the claim is based upon action taken pursuant to the provisions of a contract between the corporation and the department of health under which the corporation provides developmental disability services to clients of the department and the claim is made by or on behalf of a client; and
(2) a claim made pursuant to the provisions of 42 U.S.C. Section 1983 against a nonprofit corporation, members of its board of directors or its employees when the corporation operates a facility licensed by the department of health as an intermediate care facility for the mentally retarded and the claim is based upon action taken pursuant to the provisions of the license and is made by or on behalf of a resident of the licensed facility.
C. The director shall report his findings and recommendations, if any, for the consideration of each legislature. The report shall include the amount and name of any person receiving payment from the public liability fund of any claim paid during the previous fiscal year exceeding one thousand dollars ($1,000). The report shall be made available to the legislature on or before December 15 preceding each regular legislative session.
History: Laws 1978, ch. 166, § 8; 1979, ch. 287, § 3, 1979, ch. 392, § 1; 1983, ch. 301, § 65; 1986, ch. 102, § 6; 1990, ch. 71, § 1; 1995, ch. 173, § 1; 1997, ch. 74, § 6.
ANNOTATIONSThe 1997 amendment, effective July 1, 1997, inserted the proviso following "group benefits" at the beginning of the sentence in Paragraph A(2) and made minor stylistic changes.
The 1995 amendment, effective June 16, 1995, added "and duties" in the section heading, substituted "9-17-5" for "9-6-5" in Paragraphs (3) and (6) of Subsection A, added Subsection B, and redesignated former Subsection B as Subsection C.
The 1990 amendment, effective May 16, 1990, rewrote Paragraph (2) of Subsection A which read "purchase insurance or reinsurance" and substituted "workers' compensation" for "workmen's compensation" in two places in Subsection A.
Coverage limited by Tort Claims Act. — Provision of this section regarding coverage for the defense of governmental entities is limited to the coverage required by the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978] and does not extend to mandamus actions. Board of Cnty. Comm'rs v. Risk Mgt. Div., 1995-NMSC-046, 120 N.M. 178, 899 P.2d 1132.
Denial of coverage for mandamus claims. — The risk management division's endorsement of a certificate of coverage issued to a county denying coverage for mandamus actions was a ministerial act, fulfilling the requirements of the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978], and not a discretionary decision altering the scope of the county's coverage; accordingly, the refusal to cover mandamus claims in the endorsement was not subject to rulemaking requirements. Board of Cnty. Comm'rs v. Risk Mgmt. Div., 1995-NMSC-046, 120 N.M. 178, 899 P.2d 1132.
Waiver of Eleventh Amendment immunity by duly employed legal counsel. — Attorneys duly hired by risk management division, in removing suit to federal court, invoked federal jurisdiction and thereby waived state's immunity from suit. Abreu v. N.M. Children Youth & Families Dep't, 646 F.Supp.2d 1259 (D.N.M. 2009).