SENATE BILL 497
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Gerald Ortiz y Pino
AN ACT
RELATING TO MANAGED HEALTH CARE; ENACTING THE MANAGED HEALTH CARE OMBUDSMAN ACT; CREATING A MANAGED HEALTH CARE OMBUDSMAN OFFICE; ENACTING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. SHORT TITLE.--This act may be cited as the "Managed Health Care Ombudsman Act".
SECTION 2. DEFINITIONS.--As used in the Managed Health Care Ombudsman Act:
A. "division" means the insurance division of the public regulation commission;
B. "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 laboratory; a diagnostic or imaging center; and a rehabilitation or other therapeutic health setting;
C. "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;
D. "health care professional" means a physician or other health care practitioner, including a pharmacist, certified nurse practitioner in advanced practice as provided in Sections 61-3-23.2 through 61-3-23.4 NMSA 1978 and certified nurse-midwife, who is licensed, certified or otherwise authorized by the state to provide health care services consistent with state law;
E. "health care provider" or "provider" means a person that is licensed or otherwise authorized by the state to furnish health care services and includes health care professionals and health care facilities;
F. "managed health care plan" or "plan" means a health care insurer or a health care provider service network that, when offering a benefit, either requires a covered person to use or creates incentives, including financial incentives, for a covered person to use health care providers managed, owned, under contract with or employed by the health care insurer or health care provider service network, including networks offering medicaid services. "Managed health care plan" or "plan" does not include a health care insurer or health care provider service network offering a traditional fee-for-service indemnity benefit or a benefit that covers only short-term travel, accident-only, limited benefit or specified disease policies; or student health plans;
G. "ombudsman program" means the ombudsman program created by the Managed Health Care Ombudsman Act or any authorized representative of that program;
H. "patient" means an individual who is entitled to receive health care benefits provided by a managed health care plan;
I. "serious mental illness" means a diagnosable disorder of a person's emotional process, thoughts or cognition resulting in functional impairment that substantially interferes with or limits one or more major life activities, but "serious mental illness" does not mean a developmental disability; and
J. "superintendent" means the superintendent of insurance.
SECTION 3. MANAGED HEALTH CARE OMBUDSMAN OFFICE.--
A. The division shall establish and operate a "managed health care ombudsman office".
B. The superintendent shall designate the managed health care ombudsman.
C. The ombudsman shall serve on a full-time basis and shall, personally or through representatives of the office:
(1) identify, investigate and resolve complaints by patients and health care providers as they relate to the patients' and health care providers' rights as set forth in the Patient Protection Act;
(2) work with each managed health care plan's consumer assistance office, evaluate the effectiveness of the plan's consumer assistance office and require the plan's consumer assistance office to adopt measures to ensure that the plan operates effectively to protect both patients' and health care providers' rights under the Patient Protection Act;
(3) attempt to resolve disputes through advice, counseling, negotiation or other informal strategies, if possible, before proceeding to formal administrative remedies. Formal administrative remedies shall be pursued before litigation is initiated, but the requirements of this paragraph do not apply when, in the judgment of the ombudsman, the medical or other exigencies of the case require expedited action to prevent harm to the patient;
(4) research and identify ways to improve treatment of persons who are covered by a managed health care plan and are diagnosed with serious mental illness, including providing ongoing training, education and support to health care providers who provide health care services to such persons; and
(5) prepare an annual report that:
(a) describes the activities carried out by the office in the year for which the report is prepared;
(b) contains and analyzes data collected;
(c) evaluates the problems experienced by and the complaints made by or on behalf of patients and health care providers; and
(d) provides policy, regulatory and legislative recommendations to solve identified problems, to resolve complaints, to improve the quality of care of patients and to ensure that a managed health care plan's administrative practices do not unduly burden health care providers.
D. The ombudsman program shall maintain sufficient numbers of staff, qualified by training and experience, to perform the functions of the ombudsman program. Staff may include employees, independent contractors performing services pursuant to contract and volunteers.
SECTION 4. OPERATIONS OF THE OMBUDSMAN PROGRAM THROUGH CONTRACTUAL RELATIONSHIP.--
A. The division shall contract with one or more independent organizations or consortia of organizations to operate the ombudsman program. The contractor has authority to enter into subcontracts for performance of any part of the duties required by the contract. The ombudsman program shall operate independently of any state agency or health care plan.
B. The criteria used in selecting a contractor or contractors to operate the ombudsman program shall include preference for:
(1) private, not-for-profit organizations representing a broad spectrum of consumer interests in New Mexico; and
(2) organizations that have, or whose principals have, demonstrated interest and expertise in health care issues and a background in consumer advocacy.
C. A person contracting to perform ombudsman program functions shall not:
(1) be directly involved in the licensing, certification or accreditation of health care facilities, health care plans or health care providers;
(2) have a direct ownership or investment interest in a health care facility, health care plan or health care provider;
(3) be employed by or participate in the management of a health care facility, health care plan or health care provider; or
(4) have the right to receive remuneration under a compensation arrangement with an owner or operator of a health care facility, health care plan or health care provider.
D. The ombudsman program shall exercise its powers and duties independently of any state agency or health care plan. To assure the independence of the ombudsman program, the contract to operate the ombudsman program shall be awarded as a multi-term contract for three-year terms. The contract shall not be terminated by the division before its scheduled expiration date except for lack of available funds or for significant deficiencies in contract performance. Before the contract may be terminated by the division on the basis of deficiencies in contract performance, the division shall:
(1) give the contractor notice of the proposed termination and a detailed written statement of deficiencies in contract performance;
(2) give the contractor a reasonable opportunity to respond to and correct the identified deficiencies; and
(3) give timely public notice and an opportunity for public comment on the proposed termination.
SECTION 5. ACCESS TO INFORMATION.--
A. When the assistance of the ombudsman program has been requested on behalf of a patient or health care provider, the ombudsman program shall be granted access to the medical and administrative records relevant to the issue presented; provided that the ombudsman program has the permission of the patient involved or the patient's designated representative.
B. The ombudsman program shall have access to the administrative records, policies and documents of managed health care plans to the extent that the materials are not proprietary or privileged.
C. The ombudsman program shall have access to licensing and data reporting records with respect to managed health care plans reported to the state, the federal government or private accrediting agencies, to the extent that the information is not proprietary or privileged under the federal Health Insurance Portability and Accountability Act of 1996 or any other applicable law.
D. State agencies, managed health care plans and health care providers shall provide cooperation, assistance, data and access to records necessary to enable the ombudsman program to perform its duties under the Managed Health Care Ombudsman Act and other applicable federal and state law. Charges for copies of documents provided to the ombudsman program by a state agency, plan or provider shall be the lesser of actual costs, not to exceed the prevailing community market rates for photocopying, or fifty cents ($.50) a page.
E. Communications between the ombudsman program and a person requesting the assistance of the ombudsman program are privileged. The case files and records of the ombudsman program are confidential and may be disclosed only as provided in this subsection for purposes of fulfilling the duties of the ombudsman program. Those files and records are not subject to subpoena and are exempt from disclosure under the Inspection of Public Records Act. The ombudsman program shall not disclose the identity of or any confidential information regarding any individual who has requested the assistance of the ombudsman program, unless:
(1) the patient, health care provider or the patient or provider's designated representative consents to the disclosure; or
(2) disclosure is ordered by a court of competent jurisdiction.
F. Reports by the ombudsman program on operations of the ombudsman program or systemic issues in managed health care shall be prepared in a manner to ensure that the identities of individuals served by the ombudsman program are not disclosed and information shall be presented in a report in such a way as to prevent identification of individuals served by the ombudsman program.
SECTION 6. PROHIBITION ON INTERFERENCE WITH OMBUDSMAN PROGRAM OR RETALIATION.--
A. No person shall willfully interfere with the lawful actions of the ombudsman program.
B. No person shall engage in discriminatory, disciplinary, retaliatory or other adverse action against any person for contacting the managed health care ombudsman office, requesting the assistance of the ombudsman program, providing information to the ombudsman program or otherwise cooperating with the ombudsman program.
SECTION 7. IMMUNITY FROM LIABILITY.--No representative of the ombudsman program is liable for the good-faith performance of the functions of the ombudsman program pursuant to the Managed Health Care Ombudsman Act.
SECTION 8. AUTHORITY NOT EXCLUSIVE.--The authority granted the ombudsman program under the Managed Health Care Ombudsman Act is in addition to the authority granted under the provisions of any other statute or rule. The authority granted to the ombudsman program does not limit or affect any rights or remedies of managed health care plan enrollees.
SECTION 9. SURCHARGE--MANAGED HEALTH CARE OMBUDSMAN FUND--CREATED.--
A. To ensure adequate funding for the operations of the ombudsman program, a surcharge is assessed on premiums received by insurers offering managed health care plans. The surcharge is in the amount of one-tenth of one percent of the dollar amount of premiums collected by the insurer for coverage of enrollees in the insurer's health care plans, whether for privately paid insurance or for publicly funded programs, including the medicaid program.
B. There is created in the state treasury a "managed health care ombudsman fund". All money collected pursuant to the provisions of Subsection A of this section shall be deposited in the managed health care ombudsman fund. Balances in the fund and interest earned on money in the fund are appropriated to the division for the purpose of administering and contracting for the ombudsman program as provided in the Managed Health Care Ombudsman Act. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert.
SECTION 10. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.
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