A. To the extent not set forth in any other form accessible to the public, all information in risk-based capital reports, risk-based capital plans, results or reports of any examination or analysis of an insurer or health organization performed exclusively for the purposes required by the Risk-Based Capital Act and all corrective orders issued by the superintendent pursuant to such examination or analysis are and shall be kept confidential by the superintendent and are not subject to the Inspection of Public Records Act [Chapter 14, Article 2 NMSA 1978]. Nothing in this section shall be construed as a grant of privilege or confidentiality or a bar to production of that information by an insurer in a civil suit, whether or not the office of superintendent of insurance is a party.

B. To assist in the performance of the superintendent's duties, the superintendent may:

(1) share documents, materials or other information, including the confidential and privileged documents, materials or information identified in Subsection A of this section, with other state, federal and international regulatory agencies, with the national association of insurance commissioners, its affiliates or its subsidiaries and with state, federal and international law enforcement authorities if the recipient agrees in writing to maintain the confidentiality and privilege of the documents, materials or other information;

(2) receive documents, materials or information, including otherwise confidential and privileged documents, materials or information, from the national association of insurance commissioners, its affiliates or its subsidiaries and from regulatory and law enforcement officials of foreign or domestic jurisdictions, except that the superintendent shall maintain as confidential or privileged documents, materials or other information received with notice or the understanding that the content is confidential or privileged pursuant to the laws of the jurisdiction from which the information originates; and

(3) enter into agreements governing the sharing and use of information that are consistent with this subsection.

C. The comparison of an insurer's or health organization's total adjusted capital to any of its risk-based capital levels is a regulatory tool that may indicate the need for possible corrective action by the superintendent with respect to the insurer or health organization and is not intended as a means to rank insurers or health organizations generally or to compare insurers or health organizations for marketing purposes. Use of such comparisons for such purposes is inherently misleading and deceptive. Except as otherwise required under the provisions of the Risk-Based Capital Act or applicable law, no insurer, health organization, agent, broker or other person engaged in any manner in the business of insurance shall make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated or placed before the public in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, an advertisement, announcement or statement containing an assertion, representation or statement with regard to the risk-based capital levels of any insurer or health organization, or of any component derived in their calculation; provided, however, that if any materially false statement with respect to the comparison regarding an insurer's or health organization's total adjusted capital to its risk-based capital levels or an inappropriate comparison of any other amount to the insurer's or health organization's risk-based capital levels is published in any written publication and the insurer or health organization is able to demonstrate to the superintendent's satisfaction the falsity or inappropriateness of the statement, then the insurer or health organization may publish an announcement approved in advance by the superintendent in a written publication whose sole purpose is to rebut the materially false statement.

D. The risk-based capital instructions, risk-based capital reports, adjusted risk-based capital reports, risk-based capital plans and revised risk-based capital plans are intended solely for use by the superintendent in monitoring the solvency of insurers and health organizations and the need for possible corrective action with respect to insurers and health organizations. They shall not be used by the superintendent for ratemaking, considered or introduced as evidence in any rate proceeding or used to calculate or derive any elements of an appropriate premium level or rate of return for any line of insurance that an insurer, health organization or any affiliate is authorized to write.

History: 1978 Comp., § 59A-5A-9, enacted by Laws 1995, ch. 149, § 9; 2014, ch. 59, § 9.

The 2014 amendment, effective July 1, 2014, subjected health organizations to the Risk-Based Capital Act; clarified the terms of confidentiality and sharing of certain information under the control of the superintendent; in Subsection A, in the first sentence, after "analysis of an insurer", added "or health organization", after "health organization performed", deleted "pursuant to" and added "exclusively for the purposes required by", and after "confidential by the superintendent", deleted "or be subject to subpoena, other than by the superintendent and then only for the purpose of enforcement actions taken by the superintendent pursuant to the Insurance Code" and added "and are not subject to the Inspection of Records Act", deleted the former second sentence which prohibited the release of the information covered by Subsection A to the public and added the current second sentence; added Subsection B; in Subsection C, after "comparison of an insurer's", added "or health organization's"; after "respect to the insurer", added "or health organization", after "rank insurers", added "or health organization", after "to compare insurers", added "or health organizations", in the third sentence, after "no insurer", added "or health organization", after "capital levels of any insurer", added "or health organization", after "regarding an insurer's", added "or health organization's", after "other amount to the insurer's", added "or health organization's", after "publication and the insurer", added "or health organization", and after "then the insurer", added "or health organization"; and in Subsection D, in the first sentence, after "solvency of insurers", added "and health organizations", and after "respect to insurers", added "and health organizations", and in the second sentence, after "that an insurer", added "health organization".

Severability. — Laws 2014, ch. 59, § 12 provided that if any part or application of the provisions of the Risk-Based Capital Act is held invalid, the remainder or its application to other situations or persons shall not be affected.