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Compliance Corner

State Updates

Insurance Updates Regarding COVID-19

March 17, 2020

On March 6, 2020, the Office of Superintendent of Insurance issued Bulletin 2020-004 that applies to all insurers licensed to sell health insurance in the state. The Bulletin encourages applicable insurers to educate their members regarding guidance issued by the New Mexico Department of Health and the CDC on COVID-19, as well as to let network providers know about the recommendations and protocols issued by those agencies. The Bulletin advises insurers that they and their network providers are expected to bill and process claims using codes promulgated by CMS relating to COVID-19.

The Bulletin also asks insurers to make sure that members who may be self-quarantined can obtain one-time refills of their prescriptions prior to the expiration of the normal refill waiting period.

Employers with policies regulated in New Mexico should be aware of these developments.

Bulletin 2020-004 »

Excepted Benefit Form Filings Not Approved Until Rules in Place

March 03, 2020

On February 25, 2020, the Office of Superintendent of Insurance issued a statement that the office will not approve excepted form filings until rules and standards are in place to protect the public from purchasing insurance products that may not provide benefits or protections required under the ACA. Excepted benefits, such as limited health benefits and accident and sickness coverage, are not intended to replace major medical plans. However, the office has become aware that some excepted benefit plans are being packaged and sold as replacements.

The Short-Term Health Plan and Excepted Benefit Act, effective June 14, 2019, requires the office to promulgate rules to establish permissible content and terms of those plans. In the meantime, the office will not approve excepted plan filings.

Employers should be aware of these developments and alert to attempts to sell excepted benefit plans as medical plans.

Press Release »

State Law Amended to Provide Certain ACA Protections

October 29, 2019

On April 4, 2019, Gov. Lujan Grisham signed HB0436 into law. The law aligns provisions relating to accessibility of health care coverage to federal law, including protections for persons with pre-existing conditions and a requirement that health care plans provide essential health benefits such as emergency services, hospitalization, prescription drugs, and maternity and newborn care. The state passed this law in order to make sure that residents of the state would not lose coverage in the event that the Affordable Care Act is struck down in the courts.

New Mexico is one of several states that are passing state-level solutions in the event the ACA is struck down in the courts, in order to make sure that their residents are covered. Employers should keep an eye on these efforts in their own states, and be prepared to make any adjustments in the way they provide health coverage to their employees in light of any state-level changes.

New Mexico HB0436 »

Bernalillo County Paid Time-Off Ordinance

October 29, 2019

On October 15, 2019, Bernalillo County, New Mexico’s Board of County Commissioners approved a paid-leave ordinance that will become effective January 1, 2020. Under the ordinance, all employees can accrue or use up to 28 hours of paid leave a year starting on July 1, 2020. All employees of employers with at least 11 employees can accrue or use up to 44 hours of paid leave a year starting on July 1, 2021, and all employees of employers with at least 35 employees can accrue or use up to 56 hours of paid leave a year starting on July 1, 2022.

This is a good example of how local jurisdictions are mandating paid leave through local ordinances. Employers in Bernalillo County should consult with their employment law advisors to comply with this law.

Bernalillo County New Mexico Paid-Leave Ordinance »

Surprise Billing Protection Act Signed

October 15, 2019

On April 4, 2019, Gov. Grisham signed SB 337, also known as the Surprise Billing Protection Act, effective January 1, 2020. The Surprise Billing Protection Act may apply when an insured person receives out-of-network emergency care or receives non-emergency care from a nonparticipating provider at a participating facility. Under these circumstances, the Act provides that the insured person is responsible only for the amount that would have been paid for services from a participating facility or provider. The Act also establishes a system whereby the provider is reimbursed for the difference between what the provider charged and what the insurer paid, applying a reimbursement rate set by the Act and informed by benchmarking data.

SB 337 »

Sick Leave Rules Extended to Family

May 14, 2019

On April 3, 2019, Gov. Grisham signed SB 123 into law. The law is effective June 14, 2019. It applies to all sized employers who have at least one employee performing work in New Mexico. The new law requires employers who are already providing sick leave to permit NM-based employees to use that time for an absence related to the illness of a spouse, domestic partner, or a family member by blood, marriage, or legal adoption (a parent, grandparent, great-grandparent, child, foster child, grandchild, great-grandchild, brother, sister, niece, nephew, aunt or uncle of an eligible employee).

An employer is not required to create a new bank of accrued leave. The law simply applies to sick leave already provided by an employer. Sick leave is defined as accrued paid time off that an employee is provided for an absence related to their own injury or illness. Thus, an employer with a leave program which does not require the employee to give a reason for the leave would align with the new requirement. Employers should work with outside counsel to update their leave policies and handbook, as appropriate.

SB 123 »

Transgender Non-Discrimination in Health Benefits

September 05, 2018

On Aug. 23, 2018, Superintendent of Insurance Franchini issued Bulletin 2018-013. This bulletin outlines the nondiscrimination rules for the coverage of transgender benefits under New Mexico law. As background, the ACA, the New Mexico Human Rights Act and the New Mexico Insurance Code all have provisions that prohibit discrimination against transgender persons. In accordance with those laws, the New Mexico Office of the Superintendent of Insurance considers exclusions for gender identity or dysphoria-related treatment to be prohibited discrimination on the basis of sex.

As a result, insurers in New Mexico may not:

  • Deny coverage to an individual because they are a transgender person
  • Require different or additional payment from an individual on the basis that they are a transgender person
  • Designate a person’s perceived gender identity as a pre-existing condition for which coverage will be denied or limited
  • Deny or limit coverage for services because the person is transgender, including:
    • Health care services related to gender transition if those services are available to others who are not transitioning gender (such as hormone therapy, counseling, hysterectomy, mastectomy and vocal training)
    • Health care services that are ordinarily or exclusively available to individuals of one sex

This bulletin essentially confirms that New Mexico law seeks to mirror the requirements under the ACA’s Section 1557. Although insurers are ultimately responsible for complying with these requirements, employer plan sponsors should familiarize themselves with these requirements as well.

John G. Franchini. “Bulletin 2018-13.” Bulletins, Office of Superintendent of Insurance, osi.state.nm.us »

Step Therapy Protocols Must Be Established

March 20, 2018

On Feb. 28, 2018, Gov. Martinez signed SB 11 into law, which mandates certain actions in regards to step therapy protocols. As background, step therapy protocol means issuers require plan participants to use certain prescription drugs, other than prescription drugs recommended by participants’ health care providers, or to take prescription drugs in a certain order before plans provide coverage for recommended prescription drugs.

This bill requires insurers that require step therapy before providing prescription drugs to establish, implement and administer the step therapy protocol in accordance with industrywide clinical practice guidelines. Clinical review criteria must be based on clinical practice guidelines that do all of the following:

  • Recommend that prescription drugs subject to step therapy protocols be taken in specific order required by step therapy protocols
  • Are developed and endorsed by an interdisciplinary panel of experts that manage conflicts of interest
  • Are based on high-quality studies, research and medical practice
  • Are created by an explicit and transparent process that minimizes bias and conflicts of interest, explains relationships between treatment options and outcomes, rates quality of evidence used to support recommendations and considers relevant subgroups and preferences
  • Consider the needs of atypical populations and diagnoses

The law also outlines when participants should be able to request step therapy exceptions and specifies that plans must provide participants with decisions those exceptions within 72 hours (or within 24 hours in emergency situations).

This law will become effective for plans delivered, issued for delivery or renewed on or after Jan. 1, 2019.

SB 11 »

NM State Updates - 2015 Jan 17 No.01

November 17, 2015

On Oct. 27, 2015, Superintendent of Insurance Franchini issued Bulletin No. 2015-028, which addresses the definition of ‘small group’ in New Mexico in light of the PACE Act. As background, PPACA included a provision to change the definition of small employer from 1-50 to 1-100 employees effective Jan. 1, 2016. On Oct. 7, 2015, President Obama signed into law the PACE Act, which repeals the mandated small-group expansion from groups of up to 50 employees to groups of up to 100 employees. Thus, unless a state has expanded its definition of small employer, PPACA’s insurance mandates would not apply to employers in the 51-100 group in that state.

New Mexico insurance statutes define a “small group” as an employer with 2 to 50 employees. As allowed under the PACE Act, New Mexico will keep the definition of small group at 2 to 50 employees. Thus, groups with 51 to 100 employees will continue to be rated as large groups and will not be required to switch to the small group market in 2016.

The Office of the Superintendent of Insurance will not accept adjustments to already approved rates for 2016.

Bulletin 2015-028 »

NM State Updates - 2015 Jan 11 No.01

August 11, 2015

On July 14, 2015, Superintendent of Insurance Franchini issued Bulletin No. 2015-24, which expands upon and supersedes Bulletin No. 2015-021 (see the June 16, 2015 Compliance Corner). These bulletins are in reference to the CMS bulletin issued March 5, 2014 outlining transitional policies and their options. PPACA requires states to change the definition of small group from 2-50 employees to 2-100 employees. The March 5, 2014, CMS guidance indicates that states can elect to either implement the change Jan. 1, 2016, or to renew groups of 51-100 into their existing large group policies. New Mexico has elected to allow issuers of large group policies to permit groups of 51-100 employees to purchase new large group coverage until Dec. 31, 2015, and to allow the renewal of large group coverage between Jan. 1, 2016, and Oct. 1, 2016. The renewal is available to any 51-100-sized employer who has coverage prior to Dec. 31, 2015 and can be accomplished using either the existing insurer or a new issuer.

If an insurer makes offers of renewal under this notice, the offer must be made to all of an insurer’s eligible employer groups. Plan year 2015 new or renewed polices issued under this notice shall not be in effect for more than one year. Furthermore, no plans issued under this transition policy shall extend beyond Oct. 1, 2017. Such plans must comply with PPACA requirements applicable to large group market plans. Early renewals are permissible and plans may renew for periods of less than a year if agreed upon by the insurer and the group. Finally, any such renewals must be made on or before Oct. 1, 2016.

Bulletin No. 2015-024 »


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