On September 27, 2021, Superintendent Toal issued Bulletin 2021-020. This bulletin reminds carriers who issue plans regulated by the state that state rules prohibit cost-sharing for the diagnosis and treatment of COVID-19. This prohibition extends to COVID-19 booster shots. In addition, the bulletin reminds payers that COVID-19 testing remains exempt from cost-sharing obligations when the testing is medically appropriate as determined by a provider.

These prohibitions apply to all group plans and plans providing individual coverage, including self-funded plans, all group and individual insurers (including grandfathered and transition plans) on and off a Health Insurance Exchange, and to state and local government health plans.

Employers with plans regulated by the state should be aware of this development.

Bulletin 2021-020 »

On April 8, 2021, Gov. Grisham signed SB 317 into law. This statute prohibits cost sharing, including deductibles, for behavioral services covered by health plans issued in the state until January 1, 2027. It also created a fund that is to be used for reducing premiums for low-income citizens who enroll in the state’s exchange and assist small businesses in the state with healthcare costs. It will be financed by increasing the state’s surtax on insurance companies from 1% to 3.75%, replacing a federal fee that was recently phased out.

Employers with plans issued in the state should be aware of the prohibition against cost-sharing for behavioral services. Although the effect of the new fund on rates has not yet been determined, it may affect premiums that carriers in the state charge for health insurance.

SB 317 »

On May 13, 2021, Superintendent of Insurance Toal issued Bulletin 2021-007, providing guidance for SB 317, which prohibits cost-sharing, including deductibles, for behavioral services covered by health plans issued by state until January 1, 2027. Specifically, the guidance addresses the impact of this statute on high deductible health plans (“HDHPs”) that satisfy health savings account (“HSA”) eligibility requirements on or after January 1, 2022. Superintendent Toal states that SB 317 does not prohibit the sale of plans that meet those requirements.

To be HSA-eligible under the IRC, a healthcare plan must require the insured person to satisfy a specified high deductible before receiving any covered benefits, other than benefits for preventative services. Behavioral services are not currently considered to be preventative services under the IRC, so prohibiting cost-sharing for those services appears to render healthcare plans issued in the state as HSA-ineligible.

However, Superintendent Toal notes that the state encourages the use of HSAs and HDHPs in the state, and this statute does not explicitly prohibit the use of those plans in the state. Since there is no intent to conflict with previous legislation and policy in the state to encourage the use of HSAs and HDHPs, Superintendent Toal concludes that SB 317 does not apply to those plans.

Employers should be aware of this bulletin. Although the superintendent’s position on the applicability of SB 317 to HSAs and HDHPs may influence the enforcement of the state’s law, it may not be binding on the federal government’s enforcement of the IRC. Employers should consult with counsel or their tax advisors concerning the effect of this statute on their HSA and HDHP plans.

SB 317 »
Bulletin 2021-007 »

On March 24, 2021, Superintendent Toal announced that the state’s insurance exchange extended the special enrollment period (SEP) for enrolling in health plans to August 15, 2021. The original SEP was discussed in the March 2, 2021, edition of Compliance Corner.

While the creation of the SEP will affect individuals that will enroll on the marketplace, employers should be mindful of this extension in case there are employees who seek to drop coverage under their plans to take advantage of the SEP. Specifically, the permissible qualifying event for a revocation due to enrollment in a qualified plan will allow an employee to drop their employer’s plan mid-year if they intend to enroll in the marketplace.

BeWellnm News Release »

On March 20, 2021, the state legislature passed HB 20, a paid sick leave law that allows employees (including temporary and seasonal workers) to accrue one hour of sick leave for every 30 hours worked. Employers can allow employees to accrue more hours, or they can opt to provide employees with 64 hours of paid sick leave on January 1 of each year for the employees’ use throughout the year.

Employees will not be able to use more than 64 hours of leave per twelve-month period. These hours can be carried over from year to year but the 64 hours per twelve-month period is a hard limit. Employees begin earning these hours on the effective date of the law (July 1, 2022). These hours can be used for (among other things) personal (mental or physical) illness, diagnosis or treatment, and to take care of a family member who is ill. It can also be used if the employee needs to relocate or participate in legal proceedings.

Employers cannot require employees to find replacement workers while they are on this leave, nor can employers require employees to use other leave before using the leave granted under this law. Employers cannot retaliate against employees who take this leave. Employers can require documentation from an employee who used this leave for two or more consecutive days that shows the employee used the leave for a purpose allowed under the law. Employers are required to provide written or electronic notice to employees of their right to leave when they commence employment, as well as posters in conspicuous and accessible places where employees are employed. The state’s Labor Relations Division of the Workforce Solutions Department will provide model notices and posters.

Governor Lujan Grisham is expected to sign the law.

Employers in the state should be aware of this new law.

HB 20 »

On February 16, 2021, Superintendent Toal issued a notice announcing a special enrollment period (SEP) for the state’s health insurance exchange, beWellnm. The SEP follows that of the federal exchange: from February 15, 2021, through May 15, 2021.

While the creation of the SEP will affect individuals that will enroll on the marketplace, employers should be mindful of this extension in case there are employees who seek to drop coverage under their plans to take advantage of the SEP. Specifically, the permissible qualifying event for a revocation due to enrollment in a qualified plan will allow an employee to drop their employer’s plan mid-year if they intend to enroll in the marketplace.

Notice of Special Enrollment Period for Health Insurance »

On February 10, 2021, Superintendent Toal issued Bulletin No. 2021-003. The bulletin reiterates the requirements outlined in previous bulletins concerning telemedicine during the public health emergency. Previously, the state reminded insurers subject to its regulation that telemedicine services should be reimbursed at the same rates as those paid for the same service provided in-person. Plans can include a supplemental telemedicine program, but they cannot require participants to use those services. The bulletin states that the Biden administration expects the public health emergency to last through 2021.

In addition, the bulletin reminds insurers that HHS waived potential penalties for HIPAA violations by providers who use certain communication technologies during the public health emergency. The bulletin states that if this waiver expires, the requirement to cover services obtained through telemedicine (if those services would normally be in-person) may remain.

Finally, the bulletin makes clear that no law authorizes a carrier to exclude certain telemedicine services if the carrier determines that it is less effective than an in-person service.

Employers with plans regulated by the state should be aware of this information.

Bulletin No. 2021-003 »

In response to the executive order issues by Gov. Lujan Grisham on December 4, 2020, Superintendent Toal issued a release highlighting various notices that the agency published during the year to address insurance issues that arose during the COVID-19 pandemic. The relevant notices highlighted in this release included those covered in the April 14 and May 12, 2020, editions of Compliance Corner.

Press Release »

On August 4, 2020, the Office of the Superintendent of Insurance issued Bulletin 2020-016. The bulletin expresses the state’s expectation that health insurers licensed in the state will notify contracted providers that they are not allowed to charge patients for COVID-19 testing or treatment. The bulletin states that provider charges for office visits are considered part of the COVID-19 testing process, so they should not require patients to share that cost. In addition, the bulletin states that network adequacy requirements include in-network COVID-19 testing services, although insurers are not required to cover testing as part of a “back to work” requirement. It also reminds insurers of the agency’s request that they avoid coverage cancellations.

Although this bulletin is focused upon health insurers, employers with plans regulated by the state should be aware of its contents.

Bulletin 2020-016 »

On April 30, 2020, the Office of the Superintendent of Insurance issued Bulletin No. 2020-009, which applies to all major medical insurers subject to regulation by the state. The bulletin reminds those carriers that they must hold insureds harmless for expenses related to the testing, diagnosis and treatment of COVID-19. The bulletin also reminds carriers that they can only charge insureds for emergency medical services provided by out-of-network providers at in-network rates, and must pay these providers at rates consistent with New Mexico’s surprise billing laws.

The regulation is primarily directed at carriers. However, employers should also be aware of these developments.

Bulletin No. 2020-009 »