On September 23, 2022, Superintendent Toal released Bulletin No. 2022-017. The bulletin informs all health insurance plans regulated by the state that on August 4, 2022, HHS declared the monkeypox virus outbreak a national public health emergency. State law prohibits cost-sharing requirements related to testing or delivery of healthcare for any condition that is the subject of a declared public health emergency.

Accordingly, the bulletin announces that no individuals shall be charged cost-sharing (coinsurance, deductible, or copayments) for testing or treatment related to monkeypox that is received during the declared public health emergency. Health plans that charged cost-sharing related to such treatment or testing to individuals after August 4, 2022, must reimburse them for those charges. Violations are subject to enforcement action, including administrative penalties of up to $10,000 per violation.

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

Bulletin No. 2022-017 »

On June 21, 2022, the Department of Workforce Solutions issued final regulations for the state’s Healthy Workplaces Act (Act), effective on July 1, 2022. The department also released a series of FAQs. The Act was discussed in the March 30, 2021 edition of Compliance Corner. Employees covered by the law (including temporary and seasonal workers) can accrue one hour of leave for every 30 hours worked (the FAQs point out that these are hours actually worked, so vacation time does not count), which they can use for sick time, safe time (e.g., reasons relating to domestic abuse or assault), or other reasons for themselves or for family members. Under the Act, employers can provide a higher accrual rate, or they can provide their workers with 64 hours of leave upfront on January 1 of each year. Employers are not allowed to require employees to take other leave before taking this leave, even if the leave is for a reason covered by the Act.

The FAQs state that the Act applies to employees performing work in the state, regardless of whether the employer is based in the state or elsewhere. However, the Act does not apply to work performed on tribal land. The department does not provide definite answers regarding remote workers, other than to say that remote workers working in the state are likely covered, unless they work for employers based outside the state and their services are not provided in the state. Those remote workers who work outside the state are not covered, even if their employers are based in the state. The department considers these questions to be heavily dependent on the facts and circumstances.

Although the Act does not cap the number of hours an employee can accrue, employers are not required to allow employees to use more than 64 hours of this leave per twelve-month period. The FAQs clarify that paid leave provided by employers before July 1, 2022, does not count toward employers’ obligation to provide leave under the Act. If employers want to frontload hours in 2022, then they must provide 64 hours of leave on July 1, 2022. Note also that the new regulations cap hours that can be carried over to no more than 64 hours.

Regulations require employers to give written or electronic notice to an employee at the commencement of employment of the employee’s rights to earned sick leave; the manner in which sick leave is accrued and calculated; the terms of use of earned sick leave as guaranteed by the Healthy Workplaces Act; that retaliation against employees for using sick leave is prohibited; the employee’s right to file a complaint with the division if earned sick leave accrual or use is denied or if the employee is retaliated against; and all means of enforcing the Healthy Workplaces Act. This notice must be in English, Spanish, and any other language spoken by 10% or more of the employer’s workforce. Employers are also required to display a poster with this information in a place where employees can see it.

Note that an employer can have a more generous leave policy than that required under the Healthy Workplaces Act (the Act); however, according to the FAQs, that policy must provide at least the same accrual rate as the Act and ensure the hours accrued can be used at a minimum for the same purposes and under the same terms and conditions as provided for by the Act.

Employers in the state or with employees in the state should be aware of this law, the regulations and the guidance.

Healthy Workplaces Act »
Healthy Workplaces Regulations »
New Mexico Paid Sick Leave FAQs »

On April 20, 2022, Superintendent Toal released Bulletin 2022-006 to all health insurance issuers selling healthcare plans in the state’s small group market. The bulletin provides program parameters, requirements for issuers, and the Superintendent’s responsibilities for forthcoming emergency rules that establish the Small Business Health Insurance Premium Relief Initiative.

Effective January 1, 2022, the state legislature created a healthcare affordability fund from which the state will reimburse issuers who issue plans for small businesses in the state for either reducing the premiums charged for those plans or applying a credit for coverage invoices to small business purchasers. The bulletin states that effective July 1, 2022, to December 31, 2022, the premium reduction is 10%.

The bulletin also describes certain reporting requirements that issuers must follow and imposes an obligation on these issuers to notify their small business customers of the premium discount or credit within 60 days of July 1, 2022.

Small employers with plans issued in the state should be aware of this development.

Bulletin 2022-006 »

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 »