SENATE BILL 57
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Richard C. Martinez
AN ACT
RELATING TO PUBLIC ASSISTANCE; AMENDING SECTIONS OF THE PUBLIC ASSISTANCE ACT AND THE MANDATORY MEDICAL SUPPORT ACT TO LIMIT THE STATE'S CLAIM FOR CHILD SUPPORT ARREARS TO THE TIME PERIODS IN WHICH A HOUSEHOLD RECEIVES CASH ASSISTANCE AND TO ALLOW FOR CASH MEDICAL SUPPORT WHEN HEALTH INSURANCE IS UNAVAILABLE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 27-2-28 NMSA 1978 (being Laws 1981, Chapter 90, Section 2, as amended) is amended to read:
"27-2-28. LIABILITY FOR REPAYMENT OF PUBLIC
ASSISTANCE.--
[A. A noncustodial parent is liable to the human services department in the amount of the public assistance lawfully and properly furnished to the children, and the spouse or former spouse with whom such children are living, to whom the noncustodial parent owes a duty of support; except that if a support order has been entered, liability for the time period covered by the support order shall not exceed the amount of support provided for in the order.
B. Amounts of support due and owing for periods prior to the granting of public assistance shall be paid to and retained by the human services department to the extent that the amount of assistance granted exceeds the amount of the monthly support obligation.]
A. In cases where the department has provided cash assistance to children in a household, the court shall award judgment in favor of the department and against the noncustodial parents of the children for child support, calculated pursuant to Section 40-4-11.1 NMSA 1978, for all months in which the children received cash assistance benefits.
B. Equitable defenses available to the noncustodial parent in claims by the custodian for retroactive support or past due support shall not operate to deprive the department of its right to retroactive support or past due support for months during which the noncustodial parent's children received cash assistance benefits.
C. Amounts of support collected that are in excess of the amounts specified in Subsections A and B of this section shall be paid by the [human services] department to the custodian of the child.
D. No agreement between any custodian of a child and a parent of that child, either relieving the parent of any duty of child or spousal support or responsibility or purporting to settle past, present or future support obligations, either as a settlement or prepayment, shall act to reduce or terminate any rights of the [human services] department to recover from that parent for support provided, unless the [human services] department has consented to the agreement in writing.
E. The noncustodial parent shall be given credit for any support actually provided, including housing, clothing, food or funds paid prior to the entry of any order for support. The noncustodial parent has the burden [on the issue of any payment] to prove that the noncustodial parent has provided any support.
F. An application for public assistance by any person constitutes an assignment by operation of law of any support rights the person is entitled to [from any other person] during the time the person's household receives public assistance, whether the support rights are owed to the applicant or to any family member for whom the applicant is applying for or receiving assistance. The assignment includes all support rights that [have accrued at the time of application for public assistance and continues as an assignment of all support rights the applicant is entitled to for] accrue as long as the applicant receives public assistance.
G. By operation of law, an assignment to the [human services] department of any and all rights of an applicant for or recipient of medical assistance under the medicaid program in New Mexico or supplemental security income through the social security administration:
(1) is deemed to be made of:
(a) any payment for medical care from any person, firm or corporation, including an insurance carrier; and
(b) any recovery for personal injury, whether by judgment or contract for compromise or settlement;
(2) shall be effective to the extent of the amount of medical assistance actually paid by the department under the medicaid program; and
(3) shall be effective as to the rights of any other individuals who are eligible for medical assistance and whose rights can legally be assigned by the applicant or recipient.
An applicant or recipient is required to cooperate fully with the [human services] department in its efforts to secure the assignment and to execute and deliver any instruments and papers deemed necessary to complete the assignment by [that] the department."
Section 2. Section 40-4C-3 NMSA 1978 (being Laws 1990, Chapter 78, Section 3, as amended) is amended to read:
"40-4C-3. DEFINITIONS.--As used in the Mandatory Medical Support Act:
A. "cash medical support" means an amount ordered to be paid toward the cost of health insurance provided by a public entity or by another parent through employment or otherwise, or for other medical costs not covered by insurance;
[A.] B. "court" means any district court ordering support by a medical support obligor;
[B.] C. "department" means the human services department;
[C.] D. "employer" means an individual, organization, agency, business or corporation hiring a medical support obligor for pay;
[D.] E. "health insurance coverage" means those coverages generally associated with a medical plan of benefits, which may include dental insurance, but not including medicaid coverage authorized by Title 19 of the Social Security Act and administered by the department;
[E.] F. "insurer" means an employment-related or other group health care insurance plan, a health maintenance organization, a nonprofit health care plan or other type of health care insurance plan under which medical or dental services are provided, regardless of service delivery mechanism;
[F.] G. "medical support obligee" means a person to whom a duty of medical support is owed or a person, including the department, who has commenced a proceeding for enforcement of a duty to provide health support for each minor child or for registration of a support order that includes a provision for such support for each minor child;
[G.] H. "medical support obligor" means a person owing a duty to provide health support or against whom a proceeding for the enforcement of such a duty of support is commenced or for registration of a support order that includes provisions for such support for each minor child;
[H.] I. "minor child" means a child younger than eighteen years of age who has not been emancipated; and
[I.] J. "national medical support notice" means a notice to an employer that an employee's child must be covered by the employment-related group health and dental care insurance plan pursuant to a court order."
Section 3. Section 40-4C-4 NMSA 1978 (being Laws 1990, Chapter 78, Section 4, as amended) is amended to read:
"40-4C-4. MEDICAL SUPPORT--ORDER.--
A. The court shall determine a parent or both parents to be a medical support obligor based on the following:
(1) the availability of health insurance coverage that meets or exceeds the minimum standards required under the Mandatory Medical Support Act; and
(2) the availability of health insurance coverage through an employment-related or other group health and dental care insurance plan.
B. When a medical support obligor is ordered to provide health insurance coverage, the medical support obligor shall properly name each minor child on behalf of whom medical support is owed as an eligible dependent on such insurance.
C. The court may consider the impact of the cost of health insurance coverage on the payment of the base child support amounts in determining whether such insurance coverage shall be ordered.
D. The court may order the medical support obligor to obtain health insurance coverage for each minor child to whom medical support is owed if the court finds that health insurance coverage for each minor child is not available to the medical support obligor through an employment-related or other group health care insurance plan.
E. The court shall require the medical support obligor to [be liable for all or a portion of the medical and dental expenses of each minor child that are not covered by the required health insurance coverage if] pay cash medical support in specific dollar amounts when:
(1) a public entity provides health insurance;
(2) the court finds that health insurance is not available at the time an order is entered or modified and until such time that health insurance becomes available; or
[(1)] (3) the court finds that the health insurance coverage required to be obtained by a medical support obligor does not pay all the [reasonable and necessary] medical or dental expenses of each minor child. [and
(2) the court finds that a medical support obligor has the financial resources to contribute to the payment of these medical or dental expenses]
F. The court shall require the medical support obligor to be liable for all or a portion of the uninsured or uncovered medical and dental expenses of each minor child.
[F.] G. The court shall require the medical support obligor to provide health insurance coverage or dental insurance coverage for the benefit of the medical support obligee if it is available at no additional cost to the medical support obligor.
[G.] H. The court in any proceeding for the establishment, enforcement or modification of a child support obligation may modify an existing order of support or establish child support, as applicable, for each minor child to incorporate the provisions for medical and dental support ordered pursuant to the Mandatory Medical Support Act."
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