TITLE 13 INSURANCE
CHAPTER 10 HEALTH INSURANCE
PART 39 PATIENTS’ DEBT COLLECTION
PROTECTIONS
13.10.39.1 ISSUING AGENCY: Office of
Superintendent of Insurance (“OSI”).
[13.10.39.1
NMAC - N, 12/28/2021]
13.10.39.2 SCOPE: This rule applies to health care facilities, third-party health care providers,
medical creditors, medical debt collectors and medical debt buyers subject to
Sections 57-32-1
to 57-32-10 NMSA 1978.
[13.10.39.2 NMAC - N, 12/28/2021]
13.10.39.3 STATUTORY AUTHORITY: Sections
59A-2-9 NMSA 1978 and sections 57-32-1 to 57-32-10 NMSA
1978.
[13.10.39.3
NMAC - N, 12/28/2021]
13.10.39.4 DURATION: Permanent.
[13.10.39.4
NMAC - N, 12/28/2021]
13.10.39.5 EFFECTIVE DATE: December 28, 2021 unless a later date is cited at the end of a section.
[13.10.39.5
NMAC - N, 12/28/2021]
13.10.39.6 OBJECTIVE: To ensure that
health care facilities offer and provide screenings to uninsured patients who may
be eligible for Medicaid or other public health insurance, and to ensure that
medical debt incurred by indigent patients will not be pursued through certain
proscribed collection actions.
[13.10.39.6
NMAC - N, 12/28/2021]
13.10.39.7 DEFINITIONS: For definitions of terms contained in this rule, refer to the
Patients’ Debt Collection Protection Act Sections 57-32-1 to 57-32-10 NMSA 1978
and in Chapter 59A NMSA 1978, unless otherwise noted below.
A. “Culturally and linguistically appropriate” means
communication that meets the following requirements:
(1) the
provision of oral and hearing-impaired language services (such as the telephone
customer assistance hotline) that includes answering questions in any applicable
non-English language, including American sign language (ASL), and providing
assistance with filing claims and reviews in any applicable non-English
language;
(2) the
provisions of, upon request, verbal interpretation or translation of a notice
into any applicable non-English language;
(3) the
inclusion of, in the English version of all notices, a statement prominently
displayed in any applicable non-English language clearly indicating how to
access the language services provided by the health care facility;
(4) applicable
non-English language is as defined by the centers for Medicare and Medicaid
Services; and
(5) any
written notice required by this rule must include the required information in
English and Spanish.
B. “Day” or “days” means, unless
otherwise specified:
(1) one
– five days excludes weekends and state holidays; and
(2) six
days or more includes weekends and holidays.
C. “Deliver”
or “delivery means email and retain an email delivery confirmation; written
documentation of a verbal communication; electronic transmission through a
dedicated two-way communication portal and retain delivery confirmation; fax
and retain a fax delivery confirmation; regular mail; or personal delivery.
Written documentation may be maintained in a patient’s electronic health
record.
D. “Disclose”
or “disclosure” means the release, transfer, provision of access to, or divulging in any
manner of information outside the entity holding the information.
E. “Episode
of care” means all emergency
or medically necessary health care services related to the treatment of a
condition or a service category for such treatment and for acute conditions,
includes health care service and treatment provided from the onset of the
condition to its resolution or a service category for such treatment and, for
chronic conditions, includes health care services and treatment provided over a
given period of time.
F. “Federal poverty
guidelines” means the poverty guidelines issued annually by the U.S department of
health and human services at aspe.hhs.gov/poverty-guidelines/.
G. “Household” means the countable members of
the patient’s household as defined by modified adjusted gross income.
H. “Medicaid” means the federal health program
administered by the New Mexico human services department and established by the
federal department of health and human services under Title XIX of the Social
Security Act and by state statute, Section 27-1-12 NMSA 1978 et. seq., and
regulations, including 8.391.430 NMAC.
I. “Modified adjusted gross
income” or “MAGI” means household size and income calculated to determine eligibility for
a Medicaid program as set forth by the New Mexico human services department.
J. “Patients’ Debt Collection
Protection Act” (“the Act”) means Sections 1 through 10 of Chapter 57-32 NMSA
1978 and Section 61-18A-2 NMSA 1978.
K. “Public
insurance” or “public health insurance” means Medicare, Medicaid, or any other government-supported health
insurance and includes insurance offered on the New Mexico insurance exchange
or by the New Mexico medical insurance pool.
L. “Screen”
or “Screening” means a culturally and
linguistically appropriate verbal or written inquiry to the patient about the
patient’s insured status for purposes of determining presumptive eligibility
for Medicaid, eligibility for Medicaid or other public insurance programs, and
eligibility for public financial assistance programs, including but not limited
to the health care facility’s own programs, or county or state indigency
assistance.
M. “Uninsured” means that a patient who does not
have major medical insurance compliant with the provisions of the Affordable
Care Act.
[13.10.39.7
NMAC - N, 12/28/2021]
13.10.39.8 SCREENING FOR INSURANCE AND PROGRAM
ELIGIBILITY: A health care facility shall
screen all patients and offer to assist uninsured patients in obtaining or
accessing Medicaid, public insurance, public programs that assist with health
care costs, and other financial assistance offered by the health care facility,
before seeking payment for emergency or medically necessary care. A health care
facility shall include a written notification regarding screening with any
forms presented to patients for completion prior to service. No collection action shall occur
during the screening process or while the patient’s financial status or
application for insurance or financial assistance is under review or in
process. During a screening or provision of application assistance under this
section, a health care facility shall not request or require information or
documentation that is not necessary to determine eligibility for public
insurance, public programs that may assist with health care costs, or financial
assistance.
A. Timing. Health care facilities shall affirmatively
offer to screen patients and, if the patient accepts the offer, screen patients
when the patient is registered or within the following time periods:
(a) a patient who is admitted for
emergency care shall be screened when the patient’s condition has been
stabilized through treatment and prior to discharge;
(b) a patient who is admitted for
inpatient care shall be screened at the time that the inpatient care is
scheduled or within 48 hours of admission;
(c) a patient who receives outpatient
care shall be screened at the time that the outpatient care is scheduled or prior
to completion of treatment;
(d) upon request of a patient who is
scheduled to receive or has received health care services from the health care
facility; or
(e) an incapacitated patient,
including unconscious or otherwise unable to communicate, shall be screened
when the patient is able to effectively communicate, if such status is achieved
prior to discharge. The health care facility shall offer screening to parents,
spouses, persons with healthcare powers of attorney or guardians of the
patient, on the incapacitated patient’s behalf.
(f) screening shall be provided upon
request and shall be offered at least once for every episode of care within a
12 month period of time;
(g) completion of the screening process may occur
outside of the specified time frames if the facility has made a documented good
faith effort to complete the screening timely but is unable to do so due to
availability of its screening personnel, inability of the patient to provide
necessary documentation, or lack of cooperation of the patient.
B. Scope. Screening for public
health insurance and health cost assistance eligibility must be offered to
every patient and if requested by the patient, the health care facility shall:
(a) verify whether a patient is
uninsured;
(b) if the patient is uninsured, offer
information about, offer to screen for and screen the patient for:
(i) all available public insurance
including Medicaid, Medicare, New Mexico’s children’s health insurance program
and Tricare;
(ii) public programs that may assist with
health care costs including but not limited to the New Mexico health insurance exchange,
the New Mexico medical insurance pool, county indigent care programs, COVID-19
claims reimbursement programs, and the Indian health service purchased/referred
care program; and
(iii) financial assistance offered by the
health care facility.
C. Assistance. Health care facilities shall offer to
provide assistance to uninsured patients with the application process for
programs identified in the screening and, if requested, provide the assistance.
Providing assistance means having adequate staff, systems, and equipment
available to enable the completion and submission of any Medicaid, financial
assistance or other health insurance application(s) within 15 days after
receipt from the patient, or his or her representative, of the information
necessary to complete the application.
D. Notification. The health care facility must provide
notification regarding the screening to patients who are uninsured as follows.
(a) provide information about the
insurance for which the patient appears to be eligible and the contact
information for the program to which any application was submitted;
(b) the results of the screening must be delivered
to the patient, or the patient’s legal guardian or parent, if the patient is a
minor or disabled, in writing within 15 days of the completion of the
screening.
(c) if the patient declines screening,
notification must be delivered to the patient with information about how to
apply for health insurance, including Medicaid and the New Mexico health insurance
exchange within 15 days of the patient’s discharge.
(d) if during the screening the health
care facility determines that the patient is indigent, the patient must be
notified in writing within 30 days of screening, that the medical cost for the
health care services may not be the subject of prohibited collection action,
although the health care facility may bill the patient for the health services
as permitted by law.
(e) if the patient is determined indigent
during the screening process the health care facility must take steps to ensure
that any subsequent medical debt collection efforts do not include prohibited collection
action. Such steps may include notifying the health care facility’s billing
department and any debt collectors or attorneys acting on behalf of the health
care facility; and
(f) if the patient is found
presumptively eligible for Medicaid, or eligible for any other public health insurance
or financial assistance program, written notification of eligibility must be
provided to the patient within 30 days of discharge;
(g) notwithstanding sections (a) through (f)
above, notification shall not be required if the patient has not provided a
valid telephone number or mailing address or if, after three documented
attempts, the facility has been unable to contact the patient.
E. Coordination. If the patient’s treatment will include a
third-party health care provider who will bill the patient, the information
gathered in the screening process will be provided by the health care facility
to the third-party health care provider within five business days through a
secure method of transmission protecting the confidentiality of the patient’s
information.
(a) if
the patient is uninsured, the third-party health care provider will notify the health
care facility that results of the screening must be provided to it, and provide
the secure method of transmission for such notification.
(i) the third-party
healthcare provider will provide contact information to the health care facility
for receipt of screening information.
(ii) the
health care facility will provide contact information to all third-party
providers with privileges at its health care facility for the purpose of
notification of patient screening.
(b) the
information transmitted shall include the patient’s identifying information,
whether the patient participated in the screening, the outcome of the screening
and any application process, the status of the patient’s application for
assistance with health care costs, and whether the screening identified the patient
as indigent.
(c) if
the health care facility has determined that the patient is indigent and
provides that information to the third-party health care provider, neither the health
care facility nor the third-party health care provider may engage in prohibited
collection action to collect unpaid medical debt.
(d) the third-party health care provider shall not seek payment for emergency
or medically necessary care until the health care facility has provided the
screening information to the third-party healthcare provider. When the
third-party health care provider has received the screening information, it
will notify the patient that it has received the results and, if in the process
of screening for insurance eligibility it was determined that the patient was
found indigent, that it will not pursue any prohibited collection action for
the medical costs related to the health care services.
F. Confidentiality.
A health care facility or third-party health care
provider shall not disclose or use information a patient provides during the
screening and application process except as permitted or required in the Act
and its implementing regulations and as further provided below:
(a) as
needed to facilitate the application process for health insurance or financial
assistance as described in Paragraph C of this section;
(b) upon request, a health care facility or third-party health care provider
shall disclose information obtained during a screening or application
assistance conducted pursuant to this rule or during an indigency determination
pursuant to Section 9 of this rule to the patient; or
(c) a health care facility or third-party health care provider is required to
disclose information provided during screening or application assistance when
required by the human services department or the attorney general’s office to
investigate or determine the health care facility’s or third-party health care
provider’s compliance with the Act; provided, that such information shall not
be used or disclosed by the human services department or attorney general’s office
for any purpose other than the investigation or determination of the health
care facility’s or third party health care provider’s compliance with the Act.
[13.10.39.8
NMAC - N, 12/28/2021]
13.10.39.9 INDIGENT PATIENT DETERMINATION: Collection action based on charges for health care services and medical
debt may not be pursued against an indigent patient. A determination whether a
patient is an indigent patient shall be made before collection action is
pursued against the patient.
A. Prohibited activity. Medical
creditors and medical debt collectors shall not pursue collection action
against indigent patients.
(a) A
medical creditor may engage in a determination of indigency at the time of
service or at any time during or after the provision of
services. If the patient is determined to be indigent the medical creditor
may not engage in prohibited collection action.
(b) A
failure to make a determination of indigency does not waive the prohibition on collection
action against indigent patients unless the failure to make the determination
is due to noncooperation by the patient. Noncooperation must be documented and
the medical creditor or debt collector must be able to demonstrate a minimum of
three efforts to contact the patient.
(d) If the patient
contacts the medical creditor or medical debt collector to request a
determination of indigency, the medical creditor or medical debt collector must
make a determination using the methodology set forth below.
B. Methodology.
The medical creditor or medical debt collector shall
make a determination as to whether the patient is indigent using the following
methodology:
(a) household
income will be calculated using the methods used to determine Medicaid
eligibility by the New Mexico human services department, Title 8 Chapter 200
NMAC, and by the federal Medicaid program utilizing the MAGI protocols
promulgated by the New Mexico human services department;
(b) utilizing
the most recent federal poverty guidelines, the patient household income and
household size, the medical creditor or medical debt collector shall determine
whether the patient’s income is less than or equal to two hundred percent of
the federal poverty guidelines;
(c) in
determining household income, the medical creditor or medical debt collector will
consider both permanent and temporary income as defined by MAGI;
(d) the
inquiry as to indigency is restricted to the categories of income subject to
inclusion in the MAGI guidelines;
(e) information
obtained from the patient or the patient’s household during the determination
of indigency shall be considered confidential and may not be used or disclosed
for any other purpose; and
(f) the
determination of a patient’s indigency is valid for 24 months.
C. Indigency tool. The superintendent
on an annual basis will provide an optional on-line tool for calculation of
indigency for purposes of this section. The superintendent will publish a
self-attestation form on its website for use by medical creditors, medical debt
collectors and patients in establishing indigency.
D. Use of screening
information. If the medical creditor is a
health care facility or third-party provider, it may use the information
gathered during the screening process to determine whether the patient is
indigent. If the patient is indigent based on information gathered during the
screening process, then the health care facility or third-party provider shall
ensure that its efforts to collect unpaid medical debt do not include
prohibited collection action. The health care facility and third-party provider
will also inform any medical debt buyer or medical debt collector that collection
action is prohibited against that patient.
E. Medical creditors.
Medical creditors will make the determination of
indigency based on verbal or written communication with the patient, in which
the patient will be asked to prove household income and household size
consistent with the MAGI protocols.
(a) the
verbal or written communication will inform the patient that the purpose of the
communication is to determine indigency for the purpose of whether collection
action may be pursued.
(b) if
the patient is a minor or incapacitated, the communication should be with the
parent(s), spouse, or legal guardian(s) of the patient;
(c) the
verbal or written communication with the patient will be documented, including
date, time, identity of person engaged in the communication, and complete contents
of the information obtained from the communication; and
(d) the
patient may respond to the communication by providing a signed attestation as
to household income and size, or through provision of documentation such as pay
stubs, at the election of the patient.
F. Notification.
The patient will be provided with notification of
the results of the determination of indigency in writing within 30 days of the
date the medical creditor made the determination but in no event more than 60 days after the determination was initiated.
(a) if
the patient is determined to be indigent, the notice shall inform the patient that
certain collection action for the health care services and medical debt are
prohibited by the Act.
(b) the
notice will provide information to the patient about how to apply for Medicaid,
public insurance, and insurance through the New Mexico health insurance
exchange.
(c) the
notice shall inform the patient of the right to complain to the New Mexico
attorney general and shall include the website and telephone number of that
office.
G. Medical debt
collectors. A medical debt collector shall inquire of the
medical creditor on behalf of whom it is pursuing collection against a patient,
whether that patient had been determined indigent. If the patient has been
determined indigent, then certain collection action as defined herein is
prohibited.
(a) the
action of selling medical debt of an indigent patient to a medical debt buyer
or medical debt collector constitutes prohibited collection action.
(b) medical
creditors, including but not limited to health care facilities and third-party
health providers, shall not hire or otherwise engage third parties to use
prohibited collection action or otherwise recover debts from indigent patients.
These third parties, including debt collectors and debt buyers, are prohibited
from recovering debts from indigent persons, to include activity intended to
collect an unpaid medical debt.
[13.10.39.8
NMAC - N, 12/28/2021]
History of
13.10.39 NMAC: [RESERVED]