0001| HOUSE BILL 214 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| EDWARD C. SANDOVAL | 0005| | 0006| | 0007| | 0008| FOR THE HEALTH AND WELFARE REFORM COMMITTEE | 0009| | 0010| AN ACT | 0011| RELATING TO INSURANCE; ENACTING THE PATIENT PROTECTION ACT; | 0012| PROVIDING PROTECTIONS FOR PERSONS IN MANAGED HEALTH CARE | 0013| PLANS; APPLYING PATIENT PROTECTIONS TO MEDICAID MANAGED CARE; | 0014| IMPOSING A CIVIL PENALTY; AMENDING AND ENACTING SECTIONS OF | 0015| THE NMSA 1978. | 0016| | 0017| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0018| Section 1. A new section of the New Mexico Insurance | 0019| Code is enacted to read: | 0020| "[NEW MATERIAL] SHORT TITLE.--Sections 1 through 11 of | 0021| this act may be cited as the "Patient Protection Act"." | 0022| Section 2. A new section of the New Mexico Insurance | 0023| Code is enacted to read: | 0024| "[NEW MATERIAL] PURPOSE OF ACT.--The purpose of the | 0025| Patient Protection Act is to regulate aspects of health |
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0001| insurance by specifying patient and provider rights and | 0002| confirming and clarifying the authority of the department to | 0003| adopt regulations to provide protections to persons enrolled | 0004| in managed health care plans. The insurance protections | 0005| should ensure that managed health care plans treat patients | 0006| fairly and fulfill their primary obligation to deliver good | 0007| quality health care services." | 0008| Section 3. A new section of the New Mexico Insurance | 0009| Code is enacted to read: | 0010| "[NEW MATERIAL] DEFINITIONS.--As used in the Patient | 0011| Protection Act: | 0012| A. "continuous quality improvement" means an | 0013| ongoing and systematic effort to measure, evaluate and improve | 0014| a managed health care plan's operations in order to improve | 0015| continually the quality of health care services provided to | 0016| enrollees; | 0017| B. "covered person", "enrollee", "patient" or | 0018| "consumer" means an individual who is entitled to receive | 0019| health care benefits from a managed health care plan; | 0020| C. "department" means the insurance department; | 0021| D. "emergency care" means a health care procedure, | 0022| treatment or service delivered to a covered person after the | 0023| sudden onset of what appears to be a medical condition that | 0024| manifests itself by symptoms of sufficient severity that the | 0025| absence of immediate medical attention could be expected by a |
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0001| reasonable layperson to result in jeopardy to a person's | 0002| health, serious impairment of bodily functions, serious | 0003| dysfunction of a body part or disfigurement to a person; | 0004| E. "health care facility" means an institution | 0005| providing health care services, including a hospital or other | 0006| licensed inpatient center; an ambulatory surgical or treatment | 0007| center; a skilled nursing center; a residential treatment | 0008| center; a home health agency; a diagnostic, laboratory or | 0009| imaging center; and a rehabilitation or other therapeutic | 0010| health setting; | 0011| F. "health care insurer" means a person who has a | 0012| valid certificate of authority in good standing pursuant to | 0013| the Insurance Code to act as an insurer, health maintenance | 0014| organization, nonprofit health care plan or prepaid dental | 0015| plan; | 0016| G. "health care professional" means a physician or | 0017| other health care practitioner, including a pharmacist, who is | 0018| licensed, certified or otherwise authorized by the state to | 0019| provide health care services consistent with state law; | 0020| H. "health care provider" or "provider" means a | 0021| person licensed or otherwise authorized by the state to | 0022| furnish health care services and includes health care | 0023| professionals and health care facilities; | 0024| I. "health care services" includes physical health | 0025| or community-based mental health or developmental disability |
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0001| services, including services for developmental delay; | 0002| J. "managed health care plan" or "plan" means a | 0003| health benefit plan of a health care insurer or a provider | 0004| service network that either requires a covered person to use, | 0005| or creates incentives, including financial incentives, for a | 0006| covered person to use health care providers managed, owned, | 0007| under contract with or employed by the health care insurer. | 0008| "Managed health care plan" or "plan" does not include a | 0009| traditional fee-for-service indemnity plan, a student health | 0010| plan or a plan that covers only short-term travel or accident- | 0011| only, limited benefit or specified disease policies; | 0012| K. "person" means an individual or other legal | 0013| entity; | 0014| L. "point-of-service plan" or "open plan" means a | 0015| managed health care plan that allows enrollees to use health | 0016| care providers other than providers under direct contract with | 0017| the plan, even if the plan provides incentives, including | 0018| financial incentives, for covered persons to use the plan's | 0019| designated participating providers; | 0020| M. "primary health care clinic" means a nonprofit | 0021| community-based entity established to provide the first level | 0022| of basic or general health care needs, including diagnostic | 0023| and treatment services, for residents of a health care | 0024| underserved area as that area is defined in regulation adopted | 0025| by the department of health and includes an entity that serves |
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0001| primarily low-income populations; | 0002| N. "provider service network" means two or more | 0003| health care providers affiliated for the purpose of providing | 0004| health care services to covered persons on a capitated or | 0005| similar prepaid flat-rate basis; | 0006| O. "superintendent" means the superintendent of | 0007| insurance; and | 0008| P. "utilization review" means a system for | 0009| reviewing the appropriate and efficient allocation of health | 0010| care services, including hospitalization, given or proposed to | 0011| be given to a patient or group of patients." | 0012| Section 4. A new section of the New Mexico Insurance | 0013| Code is enacted to read: | 0014| "[NEW MATERIAL] PATIENT RIGHTS--DISCLOSURES--RIGHTS TO | 0015| BASIC AND COMPREHENSIVE HEALTH CARE SERVICES--GRIEVANCE | 0016| PROCEDURE--UTILIZATION REVIEW PROGRAM--CONTINUOUS QUALITY | 0017| PROGRAM.-- | 0018| A. Each covered person enrolled in a managed | 0019| health care plan has the right to be treated fairly. A | 0020| managed health care plan shall deliver good quality and | 0021| appropriate health care services to enrollees. The department | 0022| shall adopt regulations to implement the provisions of the | 0023| Patient Protection Act and shall monitor and oversee a managed | 0024| health care plan to ensure that each covered person enrolled | 0025| in a plan is treated fairly and is accorded the rights |
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0001| necessary or appropriate to protect patient interests. In | 0002| adopting regulations to implement the provisions of | 0003| Subparagraphs (a) and (b) of Paragraph (3) and Paragraphs (5) | 0004| and (6) of Subsection B of this section regarding health care | 0005| standards and specialists, utilization review programs and | 0006| continuous quality improvement programs, the department shall | 0007| cooperate with and seek advice from the department of health. | 0008| B. The regulations adopted by the department to | 0009| protect patient rights shall provide at a minimum that: | 0010| (1) a managed health care plan shall provide | 0011| oral and written summaries, policies and procedures that | 0012| explain, prior to or at the time of enrollment and at | 0013| subsequent periodic times as appropriate, in a clear, | 0014| conspicuous and readily understandable form, full and fair | 0015| disclosure of the plan's benefits, terms, conditions, prior | 0016| authorization requirements, enrollee financial responsibility | 0017| for payments, grievance procedures, appeal rights and the | 0018| patient rights generally available to all covered persons; | 0019| (2) a managed health care plan shall provide | 0020| each covered person with appropriate basic and comprehensive | 0021| health care services that are reasonably accessible and | 0022| available in a timely manner to each covered person; | 0023| (3) in providing the right to reasonably | 0024| accessible health care services that are available in a timely | 0025| manner, a managed health care plan shall ensure that: |
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0001| (a) the plan offers sufficient numbers | 0002| and types of safe and adequately staffed health care providers | 0003| at reasonable hours of service to meet the health needs of the | 0004| enrollee population, and takes into account cultural aspects | 0005| of the enrollee population; | 0006| (b) health care providers that are | 0007| specialists may act as primary care providers for patients | 0008| with chronic medical conditions, provided the specialists | 0009| offer all reasonable primary care services required by a | 0010| managed health care plan; | 0011| (c) reasonable access is provided to | 0012| out-of-network health care providers; and | 0013| (d) emergency care is immediately | 0014| available without prior authorization requirements, and | 0015| appropriate out-of-network emergency care is not subject to | 0016| additional costs; | 0017| (4) a managed health care plan shall adopt | 0018| and implement a prompt and fair grievance procedure for | 0019| resolving patient complaints and addressing patient questions | 0020| and concerns regarding any aspect of the plan, including the | 0021| quality of and access to health care, the choice of health | 0022| care provider or treatment and the adequacy of the plan's | 0023| provider network. The grievance procedures shall notify | 0024| patients of their statutory appeal rights, including the | 0025| option of seeking immediate relief in court, and shall provide |
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0001| for a prompt and fair appeal of a plan's decision to the | 0002| superintendent, including special provisions to govern | 0003| emergency appeals to the superintendent in health emergencies; | 0004| (5) a managed health care plan shall adopt | 0005| and implement a comprehensive utilization review program. The | 0006| basis of a decision to approve or deny care shall be disclosed | 0007| to an affected enrollee. The decision to approve or deny care | 0008| to a patient shall be made in a timely manner, and the final | 0009| decision shall be made by a qualified health care | 0010| professional. A plan's utilization review program shall | 0011| ensure that enrollees have proper access to health care | 0012| services, including referrals to necessary specialists. A | 0013| decision made in a plan's utilization review program shall be | 0014| subject to the plan's grievance procedure and appeal to the | 0015| superintendent; and | 0016| (6) a managed health care plan shall adopt | 0017| and implement a continuous quality improvement program that | 0018| monitors the quality and appropriateness of the health care | 0019| services provided by the plan." | 0020| Section 5. A new section of the New Mexico Insurance | 0021| Code is enacted to read: | 0022| "[NEW MATERIAL] CONSUMER ASSISTANCE--CONSUMER ADVISORY | 0023| BOARDS--OMBUDSMAN OFFICE--REPORTS TO CONSUMERS-- | 0024| SUPERINTENDENT'S ORDERS TO PROTECT CONSUMERS.-- | 0025| A. Each health care insurer that offers a managed |
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0001| health care plan shall establish and adequately staff a | 0002| consumer assistance office. The purpose of the consumer | 0003| assistance office is to respond to consumer questions and | 0004| concerns and assist patients in exercising their rights and | 0005| protecting their interests as consumers of health care. | 0006| B. Each health care insurer that offers a managed | 0007| health care plan shall establish a consumer advisory board. | 0008| The board shall meet at least quarterly and shall advise the | 0009| insurer about the plan's general operations from the | 0010| perspective of the enrollee as a consumer of health care. The | 0011| board shall also oversee the plan's consumer assistance | 0012| office. | 0013| C. The department shall establish and adequately | 0014| staff a managed care ombudsman office, either within the | 0015| department or by contract. The purpose of the managed care | 0016| ombudsman office shall be to assist patients in exercising | 0017| their rights and help advocate for and protect patient | 0018| interests. The department's managed care ombudsman office | 0019| shall work in conjunction with each insurer's consumer | 0020| assistance office and shall independently evaluate the | 0021| effectiveness of the insurer's consumer assistance office. | 0022| The department's managed care ombudsman office may require an | 0023| insurer's consumer assistance office to adopt measures to | 0024| ensure that the plan operates effectively to protect patient | 0025| rights and inform consumers of the information to which they |
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0001| are entitled. | 0002| D. The department shall prepare an annual report | 0003| assessing the operations of managed health care plans subject | 0004| to the department's oversight, including information about | 0005| consumer complaints. | 0006| E. A person may file a complaint with the | 0007| superintendent regarding a violation of the Patient Protection | 0008| Act. Prior to issuing any remedial order regarding violations | 0009| of the Patient Protection Act or its regulations, the | 0010| superintendent shall hold a hearing in accordance with the | 0011| provisions of Chapter 59A, Article 4 NMSA 1978. The | 0012| superintendent may issue any order he deems necessary or | 0013| appropriate, including ordering the delivery of appropriate | 0014| care, to protect consumers and enforce the provisions of the | 0015| Patient Protection Act. The superintendent shall adopt | 0016| special procedures to govern the submission of emergency | 0017| appeals to him in health emergencies." | 0018| Section 6. A new section of the New Mexico Insurance | 0019| Code is enacted to read: | 0020| "[NEW MATERIAL] FAIRNESS TO HEALTH CARE PROVIDERS--GAG | 0021| RULES PROHIBITED--GRIEVANCE PROCEDURE FOR PROVIDERS.-- | 0022| A. No managed health care plan may: | 0023| (1) adopt a gag rule or practice that | 0024| prohibits a health care provider from discussing a treatment | 0025| option with an enrollee even if the plan does not approve of |
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0001| the option; | 0002| (2) include in any of its contracts with | 0003| health care providers any provisions that offers an | 0004| inducement, financial or otherwise, to provide less than | 0005| medically necessary services to an enrollee; or | 0006| (3) require a health care provider to violate | 0007| the ethical duties of his profession or place his license in | 0008| jeopardy. | 0009| B. A health care insurer that proposes to | 0010| terminate a health care provider from the insurer's managed | 0011| health care plan shall explain in writing the rationale for | 0012| its proposed termination and deliver reasonable advance | 0013| written notice to the provider prior to the proposed effective | 0014| date of the termination. | 0015| C. A managed health care plan shall adopt and | 0016| implement a prompt and fair grievance procedure for resolving | 0017| health care provider complaints and addressing provider | 0018| questions and concerns regarding any aspect of the plan, | 0019| including the quality of and access to health care, the choice | 0020| of health care provider or treatment and the adequacy of the | 0021| plan's provider network. The grievance procedures shall | 0022| notify providers of their statutory appeal rights, including | 0023| the option of seeking immediate relief in court, and shall | 0024| provide for a prompt and fair appeal of a plan's decision to | 0025| the superintendent, including special provisions to govern |
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0001| emergency appeals to the superintendent in health | 0002| emergencies." | 0003| Section 7. A new section of the New Mexico Insurance | 0004| Code is enacted to read: | 0005| "[NEW MATERIAL] POINT-OF-SERVICE OPTION PLAN.--The | 0006| department may require a health care insurer that offers a | 0007| point-of-service plan or open plan to include in any managed | 0008| health care plan it offers an option for a point-of-service | 0009| plan or open plan." | 0010| Section 8. A new section of the New Mexico Insurance | 0011| Code is enacted to read: | 0012| "[NEW MATERIAL] ADMINISTRATIVE COSTS AND BENEFIT COSTS | 0013| DISCLOSURES.--The department shall adopt regulations to ensure | 0014| that both the administrative costs and the direct costs of | 0015| providing health care services of each managed health care | 0016| plan are fully and fairly disclosed to consumers in a uniform | 0017| manner that allows meaningful cost comparisons among plans." | 0018| Section 9. A new section of the New Mexico Insurance | 0019| Code is enacted to read: | 0020| "[NEW MATERIAL] PRIVATE REMEDIES TO ENFORCE PATIENT AND | 0021| PROVIDER INSURANCE RIGHTS--ENROLLEE AS THIRD-PARTY BENEFICIARY | 0022| TO ENFORCE RIGHTS.-- | 0023| A. A person who suffers a loss as a result of a | 0024| violation of a right protected pursuant to the provisions of | 0025| the Patient Protection Act, its regulations or a managed |
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0001| health care plan may bring an action to recover actual damages | 0002| or the sum of one hundred dollars ($100), whichever is | 0003| greater. | 0004| B. A person likely to be damaged by a denial of a | 0005| right protected pursuant to the provisions of the Patient | 0006| Protection Act, its regulations or a managed health care plan | 0007| may be granted an injunction under the principles of equity | 0008| and on terms that the court considers reasonable. Proof of | 0009| monetary damage or intent to violate a right is not required. | 0010| C. To protect and enforce an enrollee's rights in | 0011| a managed health care plan, an individual enrollee | 0012| participating in or eligible to participate in a managed | 0013| health care plan shall be treated as a third-party beneficiary | 0014| of the managed health care plan contract between the health | 0015| care insurer and the party with which the health care insurer | 0016| directly contracts. An individual enrollee may sue to enforce | 0017| the rights provided in the contract that governs the managed | 0018| health care plan. | 0019| D. The relief provided pursuant to this section is | 0020| in addition to other remedies available against the same | 0021| conduct under the common law or other statutes of this state. | 0022| E. In any class action filed pursuant to this | 0023| section, the court may award damages to the named plaintiffs | 0024| as provided in this section and may award members of the class | 0025| the actual damages suffered by each member of the class as a |
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0001| result of the unlawful practice." | 0002| Section 10. A new section of the New Mexico Insurance | 0003| Code is enacted to read: | 0004| "[NEW MATERIAL] APPLICATION OF ACT TO MEDICAID | 0005| PROGRAM.--The provisions of the Patient Protection Act apply | 0006| to the medicaid program operation in the state. A managed | 0007| health care plan offered through the medicaid program shall | 0008| grant enrollees and providers the same rights and protections | 0009| as are granted to enrollees and providers in any other managed | 0010| health care plan subject to the provisions of the Patient | 0011| Protection Act." | 0012| Section 11. A new section of the New Mexico Insurance | 0013| Code is enacted to read: | 0014| "[NEW MATERIAL] PENALTY.--In addition to any other | 0015| penalties provided by law, a civil administrative penalty of | 0016| up to twenty-five thousand dollars ($25,000) may be imposed | 0017| for each violation of the Patient Protection Act. An | 0018| administrative penalty shall be imposed by written order of | 0019| the superintendent made after holding a hearing as provided | 0020| for in Chapter 59A, Article 4 NMSA 1978." | 0021| Section 12. Section 59A-1-16 NMSA 1978 (being Laws 1984, | 0022| Chapter 127, Section 16) is amended to read: | 0023| "59A-1-16. EXEMPTED FROM CODE.--In addition to | 0024| organizations and businesses otherwise exempt, the Insurance | 0025| Code shall not apply [as] to: |
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0001| A. a labor organization [which] that | 0002| incidental only to operations as a labor organization issues | 0003| benefit certificates to members or maintains funds to assist | 0004| members and their families in times of illness, injury or | 0005| need, and not for profit; | 0006| B. the credit union share insurance corporation, | 0007| as identified in [Article 58-12] Chapter 58, Article l2 | 0008| NMSA 1978, and similar corporations and funds for protection | 0009| of depositors, shareholders or creditors of financial | 0010| institutions and businesses other than insurers; or | 0011| C. the risk management division of the general | 0012| services department [of finance and administration of New | 0013| Mexico] or [as] to insurance of public property or public | 0014| risks by any agency of government not otherwise engaged in the | 0015| business of insurance, except the provisions of the patient | 0016| protection act shall apply to the risk management division and | 0017| any managed health care plan it offers." | 0018| Section 13. Section 59A-46-30 NMSA 1978 (being Laws | 0019| 1993, Chapter 266, Section 29, as amended) is amended to read: | 0020| "59A-46-30. STATUTORY CONSTRUCTION AND RELATIONSHIP TO | 0021| OTHER LAWS.-- | 0022| A. The provisions of the Insurance Code other than | 0023| Chapter 59A, Article 46 NMSA 1978 shall not apply to health | 0024| maintenance organizations except as expressly provided in the | 0025| Insurance Code and that article. To the extent reasonable and |
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0001| not inconsistent with the provisions of that article, the | 0002| following articles and provisions of the Insurance Code shall | 0003| also apply to health maintenance organizations and their | 0004| promoters, sponsors, directors, officers, employees, agents, | 0005| solicitors and other representatives. For the purposes of | 0006| such applicability, a health maintenance organization may | 0007| [therein] be referred to as an "insurer": | 0008| (1) Chapter 59A, Article 1 NMSA 1978; | 0009| (2) Chapter 59A, Article 2 NMSA 1978; | 0010| (3) Chapter 59A, Article 3 NMSA 1978; | 0011| (4) Chapter 59A, Article 4 NMSA 1978; | 0012| (5) Subsection C of Section 59A-5-22 NMSA | 0013| 1978; | 0014| (6) Sections 59A-6-2 through 59A-6-4 and | 0015| 59A-6-6 NMSA 1978; | 0016| (7) Chapter 59A, Article 8 NMSA 1978; | 0017| (8) Chapter 59A, Article 10 NMSA 1978; | 0018| (9) Section 59A-12-22 NMSA 1978; | 0019| (10) Chapter 59A, Article 16 NMSA 1978; | 0020| (11) Chapter 59A, Article 18 NMSA 1978; | 0021| (12) Chapter 59A, Article 19 NMSA 1978; | 0022| (13) Section 59A-22-14 NMSA 1978; | 0023| [(13)] (14) Chapter 59A, Article 23B NMSA | 0024| 1978; | 0025| [(14)] (15) Sections 59A-34-9 through |
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0001| 59A-34-13, 59A-34-17, 59A-34-23, 59A-34-36 and 59A-34-37 NMSA | 0002| 1978; [and | 0003| (15)] (16) Chapter 59A, Article 37 NMSA | 0004| 1978; and | 0005| (17) The Patient Protection Act. | 0006| B. Solicitation of enrollees by a health | 0007| maintenance organization granted a certificate of authority, | 0008| or its representatives, shall not be construed as violating | 0009| any provision of law relating to solicitation or advertising | 0010| by health professionals, but health professionals shall be | 0011| individually subject to the laws, rules, regulations and | 0012| ethical provisions governing their individual professions. | 0013| C. Any health maintenance organization authorized | 0014| under the provisions of the Health Maintenance Organization | 0015| Law shall not be deemed to be practicing medicine and shall be | 0016| exempt from the provisions of laws relating to the practice of | 0017| medicine." | 0018| Section 14. Section 59A-47-33 NMSA 1978 (being Laws | 0019| 1984, Chapter 127, Section 879.32, as amended by Laws 1997, | 0020| Chapter 7, Section 4 and by Laws 1997, Chapter 248, Section 3 | 0021| and also by Laws 1997, Chapter 255, Section 4) is amended to | 0022| read: | 0023| "59A-47-33. OTHER PROVISIONS APPLICABLE.--The provisions | 0024| of the Insurance Code other than Chapter 59A, Article 47 NMSA | 0025| 1978 shall not apply to health care plans except as expressly |
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0001| provided in the Insurance Code and that article. To the | 0002| extent reasonable and not inconsistent with the provisions of | 0003| that article, the following articles and provisions of the | 0004| Insurance Code shall also apply to health care plans, their | 0005| promoters, sponsors, directors, officers, employees, agents, | 0006| solicitors and other representatives; and, for the purposes of | 0007| such applicability, a health care plan may [therein] be | 0008| referred to as an "insurer": | 0009| A. Chapter 59A, Article 1 NMSA 1978; | 0010| B. Chapter 59A, Article 2 NMSA 1978; | 0011| C. Chapter 59A, Article 4 NMSA 1978; | 0012| D. Subsection C of Section 59A-5-22 NMSA 1978; | 0013| E. Sections 59A-6-2 through 59A-6-4 and | 0014| 59A-6-6 NMSA 1978; | 0015| F. Section 59A-7-11 NMSA 1978; | 0016| G. Chapter 59A, Article 8 NMSA 1978; | 0017| H. Chapter 59A, Article 10 NMSA 1978; | 0018| I. Section 59A-12-22 NMSA 1978; | 0019| J. Chapter 59A, Article 16 NMSA 1978; | 0020| K. Chapter 59A, Article 18 NMSA 1978; | 0021| L. Chapter 59A, Article 19 NMSA 1978; | 0022| M. Subsections B through E of Section | 0023| 59A-22-5 NMSA 1978; | 0024| N. Section 59A-22-14 NMSA 1978; | 0025| [N.] O. Section 59A-22-34.1 NMSA 1978; |
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0001| [O.] P. Section 59A-22-39 NMSA 1978; | 0002| [P.] Q. Section 59A-22-40 NMSA 1978; | 0003| [Q.] R. Section 59A-22-41 NMSA 1978; | 0004| [R.] S. Sections 59A-34-9 through 59A-34-13 | 0005| and 59A-34-23 NMSA 1978; | 0006| [S.] T. Chapter 59A, Article 37 NMSA 1978, | 0007| except Section 59A-37-7 NMSA 1978; [and | 0008| T.] U. Section 59A-46-15 NMSA 1978; and | 0009| V. the Patient Protection Act." | 0010| Section 15. EFFECTIVE DATE.--The effective date of the | 0011| provisions of this act is July 1, 1998. | 0012|  |