0001| HOUSE BILL 361
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| EDWARD C. SANDOVAL
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO INSURANCE; ENACTING THE PATIENT PROTECTION ACT;
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0012| PROVIDING PROTECTIONS FOR PERSONS IN MANAGED HEALTH CARE
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0013| PLANS; APPLYING PATIENT PROTECTIONS TO MEDICAID MANAGED CARE;
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0014| IMPOSING A CIVIL PENALTY; AMENDING AND ENACTING SECTIONS OF
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0015| THE NMSA 1978.
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0016|
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0017| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0018| Section 1. A new section of the New Mexico Insurance
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0019| Code is enacted to read:
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0020| "[NEW MATERIAL] SHORT TITLE.--Sections 1 through 11 of
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0021| this act may be cited as the "Patient Protection Act"."
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0022| Section 2. A new section of the New Mexico Insurance
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0023| Code is enacted to read:
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0024| "[NEW MATERIAL] PURPOSE OF ACT.--The purpose of the
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0025| Patient Protection Act is to regulate aspects of health
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0001| insurance by specifying patient and provider rights and
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0002| confirming and clarifying the authority of the department to
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0003| adopt regulations to provide protections to persons enrolled
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0004| in managed health care plans. The insurance protections
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0005| should ensure that managed health care plans treat patients
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0006| fairly and fulfill their primary obligation to deliver good
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0007| quality health care services."
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0008| Section 3. A new section of the New Mexico Insurance
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0009| Code is enacted to read:
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0010| "[NEW MATERIAL] DEFINITIONS.--As used in the Patient
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0011| Protection Act:
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0012| A. "continuous quality improvement" means an
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0013| ongoing and systematic effort to measure, evaluate and improve
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0014| a managed health care plan's operations in order to improve
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0015| continually the quality of health care services provided to
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0016| enrollees;
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0017| B. "covered person", "enrollee", "patient" or
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0018| "consumer" means an individual who is entitled to receive
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0019| health care benefits from a managed health care plan;
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0020| C. "department" means the insurance department;
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0021| D. "emergency care" means a health care procedure,
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0022| treatment or service delivered to a covered person after the
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0023| sudden onset of what appears to be a medical condition that
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0024| manifests itself by symptoms of sufficient severity that the
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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
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0002| health, serious impairment of bodily functions, serious
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0003| dysfunction of a body part or disfigurement to a person;
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0004| E. "health care facility" means an institution
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0005| providing health care services, including a hospital or other
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0006| licensed inpatient center; an ambulatory surgical or treatment
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0007| center; a skilled nursing center; a residential treatment
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0008| center; a home health agency; a diagnostic, laboratory or
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0009| imaging center; and a rehabilitation or other therapeutic
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0010| health setting;
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0011| F. "health care insurer" means a person that has a
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0012| valid certificate of authority in good standing under the New
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0013| Mexico Insurance Code to act as an insurer, health maintenance
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0014| organization, nonprofit health care plan or prepaid dental
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0015| plan;
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0016| G. "health care professional" means a physician or
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0017| other health care practitioner, including a pharmacist, who is
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0018| licensed, certified or otherwise authorized by the state to
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0019| provide health care services consistent with state law;
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0020| H. "health care provider" or "provider" means a
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0021| person that is licensed or otherwise authorized by the state
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0022| to furnish health care services and includes health care
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0023| professionals and health care facilities;
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0024| I. "health care services" includes physical health
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0025| or community-based mental health or developmental disability
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0001| services, including services for developmental delay;
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0002| J. "managed health care plan" or "plan" means a
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0003| health benefit plan of a health care insurer or a provider
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0004| service network that either requires a covered person to use,
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0005| or creates incentives, including financial incentives, for a
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0006| covered person to use health care providers managed, owned,
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0007| under contract with or employed by the health care insurer.
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0008| "Managed health care plan" or "plan" does not include a
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0009| traditional fee-for-service indemnity plan or a plan that
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0010| covers only short-term travel, accident-only, limited benefit,
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0011| student health plan or specified disease policies;
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0012| K. "person" means an individual or other legal
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0013| entity;
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0014| L. "point-of-service plan" or "open plan" means a
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0015| managed health care plan that allows enrollees to use health
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0016| care providers other than providers under direct contract with
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0017| the plan, even if the plan provides incentives, including
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0018| financial incentives, for covered persons to use the plan's
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0019| designated participating providers;
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0020| M. "primary health care clinic" means a nonprofit
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0021| community-based entity established to provide the first level
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0022| of basic or general health care needs, including diagnostic
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0023| and treatment services, for residents of a health care
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0024| underserved area as that area is defined in regulation adopted
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0025| by the department of health and includes an entity that serves
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0001| primarily low-income populations;
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0002| N. "provider service network" means two or more
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0003| health care providers affiliated for the purpose of providing
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0004| health care services to covered persons on a capitated or
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0005| similar prepaid flat-rate basis;
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0006| O. "superintendent" means the superintendent of
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0007| insurance; and
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0008| P. "utilization review" means a system for
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0009| reviewing the appropriate and efficient allocation of health
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0010| care services, including hospitalization, given or proposed to
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0011| be given to a patient or group of patients."
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0012| Section 4. A new section of the New Mexico Insurance
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0013| Code is enacted to read:
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0014| "[NEW MATERIAL] PATIENT RIGHTS--DISCLOSURES--RIGHTS TO
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0015| BASIC AND COMPREHENSIVE HEALTH CARE SERVICES--GRIEVANCE
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0016| PROCEDURE--UTILIZATION REVIEW PROGRAM--CONTINUOUS QUALITY
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0017| PROGRAM.--
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0018| A. Each covered person enrolled in a managed
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0019| health care plan has the right to be treated fairly. A
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0020| managed health care plan shall deliver good quality and
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0021| appropriate health care services to enrollees. The department
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0022| shall adopt regulations to implement the provisions of the
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0023| Patient Protection Act and shall monitor and oversee a managed
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0024| health care plan to ensure that each covered person enrolled
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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
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0002| adopting regulations to implement the provisions of
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0003| Subparagraphs (a) and (b) of Paragraph (3) and Paragraphs (5)
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0004| and (6) of Subsection B of this section regarding health care
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0005| standards and specialists, utilization review programs and
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0006| continuous quality improvement programs, the department shall
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0007| cooperate with and seek advice from the department of health.
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0008| B. The regulations adopted by the department to
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0009| protect patient rights shall provide at a minimum that:
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0010| (1) a managed health care plan shall provide
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0011| oral and written summaries, policies and procedures that
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0012| explain, prior to or at the time of enrollment and at
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0013| subsequent periodic times as appropriate, in a clear,
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0014| conspicuous and readily understandable form, full and fair
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0015| disclosure of the plan's benefits, terms, conditions, prior
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0016| authorization requirements, enrollee financial responsibility
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0017| for payments, grievance procedures, appeal rights and the
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0018| patient rights generally available to all covered persons;
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0019| (2) a managed health care plan shall provide
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0020| each covered person with appropriate basic and comprehensive
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0021| health care services that are reasonably accessible and
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0022| available in a timely manner to each covered person;
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0023| (3) in providing the right to reasonably
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0024| accessible health care services that are available in a timely
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0025| manner, a managed health care plan shall ensure that:
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0001| (a) the plan offers sufficient numbers
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0002| and types of safe and adequately staffed health care providers
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0003| at reasonable hours of service to meet the health needs of the
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0004| enrollee population, and takes into account cultural aspects
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0005| of the enrollee population;
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0006| (b) health care providers that are
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0007| specialists may act as primary care providers for patients
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0008| with chronic medical conditions, provided the specialists
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0009| offer all reasonable primary care services required by a
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0010| managed health care plan;
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0011| (c) reasonable access is provided to
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0012| out-of-network health care providers; and
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0013| (d) emergency care is immediately
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0014| available without prior authorization requirements, and
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0015| appropriate out-of-network emergency care is not subject to
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0016| additional costs;
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0017| (4) a managed health care plan shall adopt
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0018| and implement a prompt and fair grievance procedure for
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0019| resolving patient complaints and addressing patient questions
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0020| and concerns regarding any aspect of the plan, including the
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0021| quality of and access to health care, the choice of health
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0022| care provider or treatment and the adequacy of the plan's
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0023| provider network. The grievance procedures shall notify
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0024| patients of their statutory appeal rights, including the
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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
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0002| superintendent, including special provisions to govern
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0003| emergency appeals to the superintendent in health emergencies;
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0004| (5) a managed health care plan shall adopt
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0005| and implement a comprehensive utilization review program. The
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0006| basis of a decision to approve or deny care shall be disclosed
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0007| to an affected enrollee. The decision to approve or deny care
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0008| to a patient shall be made in a timely manner, and the final
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0009| decision shall be made by a qualified health care
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0010| professional. A plan's utilization review program shall
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0011| ensure that enrollees have proper access to health care
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0012| services, including referrals to necessary specialists. A
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0013| decision made in a plan's utilization review program shall be
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0014| subject to the plan's grievance procedure and appeal to the
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0015| superintendent; and
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0016| (6) a managed health care plan shall adopt
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0017| and implement a continuous quality improvement program that
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0018| monitors the quality and appropriateness of the health care
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0019| services provided by the plan."
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0020| Section 5. A new section of the New Mexico Insurance
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0021| Code is enacted to read:
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0022| "[NEW MATERIAL] CONSUMER ASSISTANCE--CONSUMER ADVISORY
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0023| BOARDS--OMBUDSMAN OFFICE--REPORTS TO CONSUMERS--
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0024| SUPERINTENDENT'S ORDERS TO PROTECT CONSUMERS.--
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0025| A. Each health care insurer that offers a managed
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0001| health care plan shall establish and adequately staff a
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0002| consumer assistance office. The purpose of the consumer
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0003| assistance office is to respond to consumer questions and
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0004| concerns and assist patients in exercising their rights and
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0005| protecting their interests as consumers of health care.
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0006| B. Each health care insurer that offers a managed
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0007| health care plan shall establish a consumer advisory board.
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0008| The board shall meet at least quarterly and shall advise the
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0009| insurer about the plan's general operations from the
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0010| perspective of the enrollee as a consumer of health care. The
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0011| board shall also oversee the plan's consumer assistance
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0012| office.
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0013| C. The department shall establish and adequately
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0014| staff a managed care ombudsman office, either within the
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0015| department or by contract. The purpose of the managed care
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0016| ombudsman office shall be to assist patients in exercising
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0017| their rights and help advocate for and protect patient
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0018| interests. The department's managed care ombudsman office
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0019| shall work in conjunction with each insurer's consumer
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0020| assistance office and shall independently evaluate the
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0021| effectiveness of the insurer's consumer assistance office.
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0022| The department's managed care ombudsman office may require an
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0023| insurer's consumer assistance office to adopt measures to
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0024| ensure that the plan operates effectively to protect patient
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0025| rights and inform consumers of the information to which they
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0001| are entitled.
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0002| D. The department shall prepare an annual report
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0003| assessing the operations of managed health care plans subject
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0004| to the department's oversight, including information about
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0005| consumer complaints.
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0006| E. A person may file a complaint with the
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0007| superintendent regarding a violation of the Patient Protection
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0008| Act. Prior to issuing any remedial order regarding violations
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0009| of the Patient Protection Act or its regulations, the
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0010| superintendent shall hold a hearing in accordance with the
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0011| provisions of Chapter 59A, Article 4 NMSA 1978. The
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0012| superintendent may issue any order he deems necessary or
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0013| appropriate, including ordering the delivery of appropriate
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0014| care, to protect consumers and enforce the provisions of the
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0015| Patient Protection Act. The superintendent shall adopt
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0016| special procedures to govern the submission of emergency
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0017| appeals to him in health emergencies."
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0018| Section 6. A new section of the New Mexico Insurance
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0019| Code is enacted to read:
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0020| "[NEW MATERIAL] FAIRNESS TO HEALTH CARE PROVIDERS--GAG
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0021| RULES PROHIBITED--GRIEVANCE PROCEDURE FOR PROVIDERS.--
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0022| A. No managed health care plan may:
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0023| (1) adopt a gag rule or practice that
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0024| prohibits a health care provider from discussing a treatment
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0025| option with an enrollee even if the plan does not approve of
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0001| the option;
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0002| (2) include in any of its contracts with
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0003| health care providers any provisions that offer on inducement,
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0004| financial or otherwise, to provide less than medically
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0005| necessary services to an enrollee; or
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0006| (3) require a health care provider to violate
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0007| the ethical duties of his profession or place his license in
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0008| jeopardy.
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0009| B. A health care insurer that proposes to
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0010| terminate a health care provider from the insurer's managed
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0011| health care plan shall explain in writing the rationale for
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0012| its proposed termination and deliver reasonable advance
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0013| written notice to the provider prior to the proposed effective
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0014| date of the termination.
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0015| C. A managed health care plan shall adopt and
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0016| implement a prompt and fair grievance procedure for resolving
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0017| health care provider complaints and addressing provider
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0018| questions and concerns regarding any aspect of the plan,
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0019| including the quality of and access to health care, the choice
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0020| of health care provider or treatment and the adequacy of the
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0021| plan's provider network. The grievance procedures shall
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0022| notify providers of their statutory appeal rights, including
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0023| the option of seeking immediate relief in court, and shall
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0024| provide for a prompt and fair appeal of a plan's decision to
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0025| the superintendent, including special provisions to govern
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0001| emergency appeals to the superintendent in health
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0002| emergencies."
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0003| Section 7. A new section of the New Mexico Insurance
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0004| Code is enacted to read:
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0005| "[NEW MATERIAL] POINT-OF-SERVICE OPTION PLAN.--The
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0006| department may require a health care insurer that offers a
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0007| point-of-service plan or open plan to include in any managed
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0008| health care plan it offers an option for a point-of-service
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0009| plan or open plan."
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0010| Section 8. A new section of the New Mexico Insurance
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0011| Code is enacted to read:
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0012| "[NEW MATERIAL] ADMINISTRATIVE COSTS AND BENEFIT COSTS
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0013| DISCLOSURES.--The department shall adopt regulations to ensure
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0014| that both the administrative costs and the direct costs of
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0015| providing health care services of each managed health care
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0016| plan are fully and fairly disclosed to consumers in a uniform
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0017| manner that allows meaningful cost comparisons among plans."
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0018| Section 9. A new section of the New Mexico Insurance
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0019| Code is enacted to read:
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0020| "[NEW MATERIAL] PRIVATE REMEDIES TO ENFORCE PATIENT AND
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0021| PROVIDER INSURANCE RIGHTS--ENROLLEE AS THIRD-PARTY BENEFICIARY
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0022| TO ENFORCE RIGHTS.--
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0023| A. A person who suffers a loss as a result of a
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0024| violation of a right protected pursuant to the provisions of
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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
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0002| or the sum of one hundred dollars ($100), whichever is
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0003| greater.
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0004| B. A person likely to be damaged by a denial of a
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0005| right protected pursuant to the provisions of the Patient
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0006| Protection Act, its regulations or a managed health care plan
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0007| may be granted an injunction under the principles of equity
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0008| and on terms that the court considers reasonable. Proof of
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0009| monetary damage or intent to violate a right is not required.
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0010| C. To protect and enforce an enrollee's rights in
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0011| a managed health care plan, an individual enrollee
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0012| participating in or eligible to participate in a managed
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0013| health care plan shall be treated as a third-party beneficiary
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0014| of the managed health care plan contract between the health
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0015| care insurer and the party with which the health care insurer
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0016| directly contracts. An individual enrollee may sue to enforce
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0017| the rights provided in the contract that governs the managed
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0018| health care plan.
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0019| D. The relief provided pursuant to this section is
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0020| in addition to other remedies available against the same
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0021| conduct under the common law or other statutes of this state.
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0022| E. In any class action filed pursuant to this
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0023| section, the court may award damages to the named plaintiffs
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0024| as provided in this section and may award members of the class
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0025| the actual damages suffered by each member of the class as a
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0001| result of the unlawful practice."
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0002| Section 10. A new section of the New Mexico Insurance
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0003| Code is enacted to read:
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0004| "[NEW MATERIAL] APPLICATION OF ACT TO MEDICAID
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0005| PROGRAM.--The provisions of the Patient Protection Act apply
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0006| to the medicaid program operation in the state. A managed
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0007| health care plan offered through the medicaid program shall
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0008| grant enrollees and providers the same rights and protections
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0009| as are granted to enrollees and providers in any other managed
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0010| health care plan subject to the provisions of the Patient
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0011| Protection Act."
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0012| Section 11. A new section of the New Mexico Insurance
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0013| Code is enacted to read:
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0014| "[NEW MATERIAL] PENALTY.--In addition to any other
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0015| penalties provided by law, a civil administrative penalty of
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0016| up to twenty-five thousand dollars ($25,000) may be imposed
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0017| for each violation of the Patient Protection Act. An
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0018| administrative penalty shall be imposed by written order of
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0019| the superintendent made after holding a hearing as provided
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0020| for in Chapter 59A, Article 4 NMSA 1978."
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0021| Section 12. Section 59A-1-16 NMSA 1978 (being Laws 1984,
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0022| Chapter 127, Section 16) is amended to read:
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0023| "59A-1-16. EXEMPTED FROM CODE.--In addition to
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0024| organizations and businesses otherwise exempt, the Insurance
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0025| Code shall not apply [as] to:
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0001| A. a labor organization [which] that,
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0002| incidental only to operations as a labor organization, issues
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0003| benefit certificates to members or maintains funds to assist
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0004| members and their families in times of illness, injury or
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0005| need, and not for profit;
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0006| B. the credit union share insurance corporation,
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0007| as identified in [Article 58-12] Chapter 58, Article 12
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0008| NMSA 1978, and similar corporations and funds for protection
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0009| of depositors, shareholders or creditors of financial
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0010| institutions and businesses other than insurers; or
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0011| C. the risk management division of the general
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0012| services department [of finance and administration of New
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Mexico] or [as] to insurance of public property or public
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0014| risks by any agency of government not otherwise engaged in the
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0015| business of insurance, except the provisions of the Patient
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0016| Protection Act shall apply to the risk management division and
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0017| any managed health care plan it offers."
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0018| Section 13. Section 59A-46-30 NMSA 1978 (being Laws
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0019| 1993, Chapter 266, Section 29) is amended to read:
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0020| "59A-46-30. STATUTORY CONSTRUCTION AND RELATIONSHIP TO
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0021| OTHER LAWS.--
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0022| A. The provisions of the Insurance Code other than
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0023| Chapter 59A, Article 46 NMSA 1978 shall not apply to health
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0024| maintenance organizations except as expressly provided in the
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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
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0002| following articles and provisions of the Insurance Code shall
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0003| also apply to health maintenance organizations, their
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0004| promoters, sponsors, directors, officers, employees, agents,
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0005| solicitors and other representatives [and]. For the
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0006| purposes of such applicability, a health maintenance
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0007| organization may [therein] be referred to as an "insurer":
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0008| (1) Chapter 59A, Article 1 NMSA 1978;
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0009| (2) Chapter 59A, Article 2 NMSA 1978;
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0010| (3) Chapter 59A, Article 3 NMSA 1978;
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0011| (4) Chapter 59A, Article 4 NMSA 1978;
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0012| (5) Subsection C of Section 59A-5-22 NMSA
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0013| 1978;
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0014| (6) Sections 59A-6-2 through 59A-6-4 and
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0015| 59A-6-6 NMSA 1978;
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0016| (7) Chapter 59A, Article 8 NMSA 1978;
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0017| (8) Chapter 59A, Article 10 NMSA 1978;
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0018| (9) Section 59A-12-22 NMSA 1978;
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0019| (10) Chapter 59A, Article 16 NMSA 1978;
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0020| (11) Chapter 59A, Article 18 NMSA 1978;
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0021| (12) Chapter 59A, Article 19 NMSA 1978;
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0022| (13) Section 59A-22-14 NMSA 1978;
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0023| [(13)] (14) Chapter 59A, Article 23B NMSA
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0024| 1978;
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0025| [(14)] (15) Sections 59A-34-9 through
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0001| 59A-34-13, 59A-34-23, 59A-34-36 and 59A-34-37 NMSA 1978; [and
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(15)] (16) Chapter 59A, Article 37 NMSA
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0003| 1978; and
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0004| (17) the Patient Protection Act.
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0005| B. Solicitation of enrollees by a health
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0006| maintenance organization granted a certificate of authority,
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0007| or its representatives, shall not be construed as violating
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0008| any provision of law relating to solicitation or advertising
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0009| by health professionals, but health professionals shall be
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0010| individually subject to the laws, rules, regulations and
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0011| ethical provisions governing their individual professions.
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0012| C. Any health maintenance organization authorized
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0013| under the provisions of the Health Maintenance Organization
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0014| Law shall not be deemed to be practicing medicine and shall be
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0015| exempt from the provisions of laws relating to the practice of
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0016| medicine."
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0017| Section 14. Section 59A-47-33 NMSA 1978 (being Laws
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0018| 1984, Chapter 127, Section 879.32, as amended by Laws 1994,
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0019| Chapter 64, Section 10 and also by Laws 1994, Chapter 75,
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0020| Section 34) is amended to read:
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0021| "59A-47-33. OTHER PROVISIONS APPLICABLE.--The provisions
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0022| of the Insurance Code other than Chapter 59A, Article 47 NMSA
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0023| 1978 shall not apply to health care plans except as expressly
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0024| provided in the Insurance Code and that article. To the
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0025| extent reasonable and not inconsistent with the provisions of
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0001| that article, the following articles and provisions of the
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0002| Insurance Code shall also apply to health care plans, their
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0003| promoters, sponsors, directors, officers, employees, agents,
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0004| solicitors and other representatives; and, for the purposes of
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0005| such applicability, a health care plan may [therein] be
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0006| referred to as an "insurer":
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0007| A. Chapter 59A, Article 1 NMSA 1978;
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0008| B. Chapter 59A, Article 2 NMSA 1978;
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0009| C. Chapter 59A, Article 4 NMSA 1978;
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0010| D. Subsection C of Section 59A-5-22 NMSA 1978;
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0011| E. Sections 59A-6-2 through 59A-6-4 and
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0012| 59A-6-6 NMSA 1978;
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0013| F. Section 59A-7-11 NMSA 1978;
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0014| G. Chapter 59A, Article 8 NMSA 1978;
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0015| H. Chapter 59A, Article 10 NMSA 1978;
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0016| I. Section 59A-12-22 NMSA 1978;
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0017| J. Chapter 59A, Article 16 NMSA 1978;
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0018| K. Chapter 59A, Article 18 NMSA 1978;
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0019| L. Chapter 59A, Article 19 NMSA 1978;
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0020| M. Subsections B through E of Section
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0021| 59A-22-5 NMSA 1978;
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0022| N. Section 59A-22-14 NMSA 1978;
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0023| [N.] O. Section 59A-22-34.1 NMSA 1978;
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0024| [O.] P. Section 59A-22-39 NMSA 1978;
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0025| [P.] Q. Section 59A-22-40 NMSA 1978;
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0001| [Q.] R. Sections 59A-34-9 through 59A-34-13
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0002| [NMSA 1978] and [Section] 59A-34-23 NMSA 1978;
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0003| [R.] S. Chapter 59A, Article 37 NMSA 1978,
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0004| except Section 59A-37-7 NMSA 1978; [and
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S.] T. Section 59A-46-15 NMSA 1978; and
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0006| U. the Patient Protection Act."
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0007| Section 15. EFFECTIVE DATE.--The effective date of the
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0008| provisions of this act is July 1, 1997.
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0009|
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