45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO HEALTH CARE; ENACTING THE ANY WILLING PROVIDER ACT; PROVIDING CRIMINAL AND CIVIL PENALTIES AND ENFORCEMENT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Any Willing Provider Act".

Section 2. DEFINITIONS.--As used in the Any Willing Provider Act:

A. "health care facility" means an institution providing health care services, including a hospital or other licensed inpatient center, an ambulatory surgical or treatment center, a skilled nursing center, a residential treatment center, a home health agency, a diagnostic, laboratory or imaging center and a rehabilitation or other therapeutic health setting;

B. "health care insurer" means a person that has a valid certificate of authority in good standing pursuant to the New Mexico Insurance Code to act as an insurer, health maintenance organization, nonprofit health care plan or prepaid dental plan;

C. "health care professional" means a physician or other health care practitioner, including a pharmacist, who is licensed, certified or otherwise authorized by the state to provide health care services or medical equipment consistent with state law;

D. "health care provider" means a person that is licensed or otherwise authorized by the state to furnish health care services or provide medical equipment and includes health care professionals and health care facilities;

E. "health care services" includes physical health services or community-based mental health or developmental disability services; and

F. "provider service network" means two or more health care providers affiliated for the purpose of providing health care services to enrollees on a capitated or similar prepaid flat-rate basis.

Section 3. ANY WILLING PROVIDER RULE.--No individual or group health insurance policy, health care plan or certificate of health insurance delivered or issued for delivery in this state shall:

A. deny any health care provider the right to participate as a provider under the policy, plan or certificate, if the type of services or equipment offered by the health care provider are covered, under the same terms and conditions of the policy, plan or certificate as are offered to any other health care provider;

B. prevent any person who is a party to or member of the policy, plan or certificate from selecting a health care provider of his choice to furnish the health care services or medical equipment offered under the policy, plan or certificate, under the same terms and conditions of the policy, plan or certificate as those offered to any other health care provider; or

C. permit or mandate any difference in coverage or impose any different conditions or disincentives that would cause a party to or member of the policy, plan or certificate to choose one health care provider over another for health care services or medical equipment that are covered under the policy, plan or certificate.

Section 4. CRIMINAL PENALTY AND ENFORCEMENT.--

A. A health care insurer or provider service network that violates the provisions of Section 3 of the Any Willing Provider Act is guilty of a misdemeanor and shall be punished, pursuant to Section 31-20-1 NMSA 1978, by a fine of not more than five thousand dollars ($5,000).

B. Each violation of the provisions of Section 3 of the Any Willing Provider Act, as to each health care provider and each refusal to comply, constitutes a separate and distinct offense.

C. If the superintendent of insurance has reason to believe that a person has violated a provision of the Any Willing Provider Act, the superintendent shall refer the matter to the attorney general or another appropriate law enforcement official for enforcement proceedings pursuant to the provisions of Section 59A-2-11 NMSA 1978.

Section 5. PRIVATE CIVIL ENFORCEMENT.--

A. A person who suffers a loss as a result of a violation of a provision in the Any Willing Provider Act may bring an action to recover actual damages or the sum of one hundred dollars ($100), whichever is greater. When the trier of fact finds that the party charged with the violation acted willfully, the court may award up to three times actual damages or three hundred dollars ($300), whichever is greater, to the party complaining of the violation.

B. A person likely to be injured by a violation of the Any Willing Provider Act may seek and be granted an injunction on terms that the court considers reasonable. Proof of monetary damage or intent to violate a right is not required.

C. The court shall award attorney fees and costs to the party complaining of a violation of the Any Willing Provider Act if the party prevails substantially in the lawsuit.

D. The relief provided in this section is in addition to other remedies available against the same conduct under the common law or other statutes of this state. E. In a class action filed pursuant to this section, the court may award damages to the named plaintiffs as provided in this section and may award members of the class the actual damages suffered by each member of the class as a result of the unlawful practice.

Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2001.