N.M. Admin. Code § 20.3.3.337

Current through Register Vol. 36, No. 1, January 14, 2025

Section 20.3.3.337 - CRITERIA RELATING TO USE OF FINANCIAL TESTS AND SELF-GUARANTEE FOR PROVIDING REASONABLE ASSURANCE OF FUNDS FOR DECOMMISSIONING BY NONPROFIT COLLEGES, UNIVERSITIES AND HOSPITALS

A. Introduction. An applicant or licensee may provide reasonable assurance of the availability of funds for decommissioning based on furnishing its own guarantee that funds will be available for decommissioning costs and on a demonstration that the applicant or licensee passes the financial test of Subsection B of this section. The terms of the self-guarantee are in Subsection C of this section. This section establishes criteria for passing the financial test for the self-guarantee and establishes the terms for a self-guarantee.

B. Financial Test.

(1) For colleges and universities, to pass the financial test a college or university must meet either the criteria in Subparagraph (a) or the criteria in Subparagraph (b) of this paragraph.

(a) For applicants or licensees that issue bonds, a current rating for its most recent uninsured, uncollateralized and unencumbered bond issuance of AAA, AA or A as issued by Standard and Poors or Aaa, Aa or A as issued by Moodys.

(b) For applicants or licensees that do not issue bonds, unrestricted endowment consisting of assets located in the United States of at least $50 million, or at least 30 times the total current decommissioning cost estimate (or the current amount required if certification is used), whichever is greater, for all decommissioning activities for which the college or university is responsible as a self-guaranteeing licensee.

(2) For hospitals, to pass the financial test a hospital must meet either the criteria in Subparagraph (a) or the criteria in Subparagraph (b) of this paragraph.

(a) For applicants or licensees that issue bonds, a current rating for its most recent uninsured, uncollateralized, and unencumbered bond issuance of AAA, AA or A as issued by Standard and Poors or Aaa, Aa or A as issued by Moodys.

(b) For applicants or licensees that do not issue bonds, all the following tests must be met:

(i) total revenues less total expenditures divided by total revenues must be equal to or greater than 0.04;

(ii) long term debt divided by net fixed assets must be less than or equal to 0.67;

(iii) current assets and depreciation fund divided by current liabilities must be greater than or equal to 2.55; and

(iv) operating revenues must be at least 100 times the total current decommissioning cost estimate (or the current amount required if certification is used) for all decommissioning activities for which the hospital is responsible as a self-guaranteeing license.

(3) In addition, to pass the financial test, a licensee must meet all the following requirements:

(a) the licensee's independent certified public accountant must have compared the data used by the licensee in the financial test, which is required to be derived from the independently audited year end financial statements, based on United States generally accepted accounting practices, for the latest fiscal year, with the amounts in such financial statement; in connection with that procedure, the licensee shall inform the department within 90 days of any matters coming to the attention of the auditor that cause the auditor to believe that the data specified in the financial test shall be adjusted and that the licensee no longer passes the test;

(b) after the initial financial test, the licensee must repeat passage of the test within 90 days after the close of each succeeding fiscal year; and

(c) if the licensee no longer meets the requirements of Subsection B of this section, the licensee must send notice to the department of its intent to establish alternative financial assurance as specified in 20.3.3.311 NMAC; the notice must be sent by certified mail, return receipt requested, within 90 days after the end of the fiscal year for which the year end financial data show that the licensee no longer meets the financial test requirements; the licensee must provide alternate financial assurance within 120 days after the end of such fiscal year.

C. Self-Guarantee. The terms of a self-guarantee which an applicant or licensee furnishes must provide the following.

(1) The guarantee shall remain in force unless the licensee sends notice of cancellation by certified mail and return receipt requested, to the department. Cancellation may not occur unless an alternative financial assurance mechanism is in place.

(2) The licensee shall provide alternative financial assurance as specified in the 20.3.3.311 NMAC within 90 days following receipt by the department of a notice of cancellation of the guarantee.

(3) The guarantee and financial test provisions must remain in effect until the department has terminated the license or until another financial assurance method acceptable to the department has been put in effect by the licensee.

(4) The applicant or licensee must provide to the department a written guarantee (a written commitment by a corporate officer or officer of the institution) which states that the licensee will fund and carry out the required decommissioning activities or, upon issuance of an order by the department, the licensee will set up and fund a trust in the amount of the current cost estimates for decommissioning.

(5) If, at any time, the licensee's most recent bond issuance ceases to be rated in any category of "A" or above by either Standard and Poors or Moodys, the licensee shall provide notice in writing of such fact to the department within 20 days after publication of the change by the rating service.

N.M. Admin. Code § 20.3.3.337

20.3.3.337 NMAC - N, 4/30/2009