Thursday, November 23, 2017

Insurance Laws


MEDICAL INSURANCE LAWS RELATING TO DOCTORS OF ORIENTAL MEDICINE IN NEW MEXICO

The healthcare and medical insurance laws in New Mexico, pertaining to the practice of acupuncture and oriental medicine, are among the best in the nation. The New Mexico Acupuncture and Oriental Medicine Practice Act defines "oriental medicine" as a "system of primary health care" [61-14A-3.E.] and defines a “doctor of oriental medicine” as a “physician” and as a “primary care provider” [61-14A-3.C.]. Included here are excerpts from New Mexico law that define insurance coverage for the services of doctors of oriental medicine in New Mexico. Comments precede each section. Some words or phases have been made bold to facilitate understanding.

Commonly, the greatest challenge facing patients and their Doctor of Oriental Medicine is determining which of the below categories a patient's health care coverage falls into. At times, the category of insurance is obvious, as when a patient is on Medicaid. But commonly, a patient may have a card that says that they have BCBS, for example, but that coverage may be HMO coverage where only doctors on the plan will be reimbursed. It may be "normal" health insurance, or it may not be insurance at all (see "Self Insured" below). Finding out the status of the coverage can sometimes be quite difficult. This document provides a beginning for understanding some of the health coverage variations that clearly alter reimbursement for acupuncture and the other services of Doctors of Oriental Medicine.

 

INDIVIDUAL, GROUP AND BLANKET HEALTH INSURANCE

The following section applies to individual Health Insurance Contracts, and Group and Blanket Health Insurance Contracts that are included by Section 59A-23-4.B. According to this section, if a policy covers the treatment of a condition, such as migraine headaches or lupus for example, then a policy holder may freely choose to be treated for those headaches or the lupus condition by a doctor of oriental medicine using acupuncture or other elements of the DOM's scope of practice. Doctors of oriental medicine are licensed pursuant to Chapter 61 Article 14A and are defined by the following statute as "practitioners of the healing arts" along with medical doctors, osteopaths, chiropractors and dentists. Limits of coverage such as deductibles, co-payments and preferred provider requirements may be applied. Naturally, a DOM's contract with an insurer may alter the terms of this law. In the absence of any such contrary contract between the DOM and the insurer, this section is a "mandate" for acupuncture and other DOM services.

59A-22-32. Freedom of choice of hospital, practitioner.
A. Within the area and limits of coverage offered an insured and selected by him in the application for insurance, the right of any person to exercise full freedom of choice in the selection of any hospital for hospital care or of any practitioner of the healing arts or optometrist, psychologist, podiatrist, certified nurse-midwife, registered lay midwife or registered nurse in expanded practice, as defined in Subsection B of this section, for treatment of any illness or injury within his scope of practice shall not be restricted under any new policy of health insurance, contract or health care plan issued after June 30, 1967 in this state or in the processing of any claim thereunder. Any person insured or claiming benefits under any such health insurance policy, contract or health care plan providing within its coverage for payment of service benefits or indemnity for hospital care or treatment of persons for the cure or correction of any physical or mental condition shall be deemed to have complied with the requirements of the policy, contract or health care plan as to submission of proof of loss upon submitting written proof supported by the certificate of any hospital currently licensed by the health and environment department [department of health] or any practitioner of the healing arts or optometrist, psychologist, podiatrist, certified nurse-midwife, registered lay midwife or registered nurse in expanded practice.
B. As used in this section:
(1) "hospital care" means hospital service provided through a hospital which is maintained by the state or any political subdivision of the state or any place which is currently licensed as a hospital by the health and environment department [department of health] and has accommodations for resident bed patients, a licensed professional registered nurse always on duty or call, a laboratory and an operating room where surgical operations are performed, but the term does not include a convalescent or nursing or rest home;
(2) "practitioner of the healing arts" means any person holding a license or certificate provided for in Chapter 61, Article 4, 5, 6, 10 or 14A (Editor’s note: 14A is the DOM licensing law) NMSA 1978 authorizing the licensee to offer or undertake to diagnose, treat, operate on or prescribe for any human pain, injury, disease, deformity or physical or mental condition;
(3) "optometrist" means any person holding a license provided for in Chapter 61, Article 2 NMSA 1978;
(4) "podiatrist" means any person holding a license provided for in Chapter 61, Article 8 NMSA 1978;
(5) "psychologist" is one who is duly licensed or certified in the state where the service is rendered and has a doctoral degree in psychology and has had at least two years clinical experience in a recognized health setting or has met the standards of the national register of health service providers in psychology;
(6) "certified nurse-midwife" means any person licensed by the board of nursing as a registered nurse and who is registered with the health services division of the health and environment department [department of health] as a certified nurse-midwife;
(7) "registered lay midwife" means any person who practices lay midwifery and is registered as a registered lay midwife by the health services division of the health and environment department [department of health]; and
(8) "registered nurse in expanded practice" means any person licensed by the board of nursing as a registered nurse approved for expanded practice pursuant to the Nursing Practice Act [61-3-1 to 61-3-30 NMSA 1978] as a certified nurse practitioner; certified registered nurse anesthetist; certified clinical nurse specialist in psychiatric mental health nursing or clinical nurse specialist in private practice and who has a master's degree or doctorate in a defined clinical nursing specialty and is certified by a national nursing organization.
C. This section shall apply to any such policy which is delivered or issued for delivery in this state on or after July 1, 1979 and to any existing group policy or plan on its anniversary or renewal date after June 30, 1979 or at expiration of the applicable collective bargaining contract, if any, whichever is later.

 

VEHICLE INSURANCE MEDICAL PAYMENTS

The following section defines “Vehicle Insurance Medical Payments”, often referred to as auto med pay or vehicle med pay. Medical Payments under Vehicle Insurance are not deemed to be health insurance. An example of vehicle med pay would be for treatment of what is commonly referred to as personal injury or P.I. resulting from an auto accident. “The Freedom of choice; doctor of oriental medicine” section mandates that vehicle med pay must pay for all services, including acupuncture, provided by a D.O.M. that are within his or her scope of practice.

59A-7-7. "Vehicle insurance" defined
"Vehicle" insurance is insurance covering:
A. Physical Damage. Insurance against loss of or damage to any land vehicle or aircraft or any draft or riding animal resulting from or incident to ownership, maintenance or use of any such vehicle, aircraft or animal;
B. Public Liability and Property Damage. Insurance against any hazard or cause, and against any loss, liability or expense resulting from or incident to ownership, maintenance or use of any such vehicle, aircraft or animal;
C. Cargo. Insurance against loss of or damage to property contained in a vehicle or being loaded or unloaded therein or therefrom or incident to the ownership, maintenance or use of any such vehicle, aircraft or animal; and
D. Medical Payments. Insurance for payment on behalf of the injured party or for reimbursement of the insured for payment, irrespective of legal liability of the insured, of medical, hospital, surgical and disability benefits, to persons injured and funeral and death benefits to dependents, beneficiaries or personal representatives of persons killed as the result of an accident, resulting from or incident to ownership, maintenance or use of any such vehicle, aircraft or animal. Such coverage shall not be deemed to be "health" insurance for purposes of the Insurance Code [this chapter, except Articles 16A, 23A, 23B, 24A and Section 59A-33-14 NMSA 1978].

59A-32-22. Freedom of choice; doctor of oriental medicine.
A. Within the areas and limits of coverage offered an insured and selected by him in the application for insurance, for vehicle insurance medical payments as defined in Subsection D of Section 59A‑7‑7 NMSA 1978, the right of any person to exercise full freedom of choice in the selection of any licensed doctor of oriental medicine for treatment within his scope of practice shall not be restricted under any new policy of vehicle insurance issued after July 1, 1997 in this state or in the processing of any claim made pursuant to that policy. Any person insured for claiming benefits under the medical payments portion of such vehicle insurance policy providing within its coverage for payment of benefits or indemnity for any condition or circumstance, described in Subsection D of Section 59A‑7‑7 NMSA 1978 shall be deemed to have complied with the requirements of the policy as to submission of proof of loss upon submitting written proof supported by any doctor of oriental medicine.
B. As used in this section, "doctor of oriental medicine" means a person licensed as a doctor of oriental medicine pursuant to the Acupuncture and Oriental Medicine Practice Act [Chapter 61, Article 14A NMSA 1978].

 

SELF INSURED/SELF PAID PLANS

Many large health plans do not buy an actual insurance plan from an insurance company. Instead, they pay each health claim directly from their coffers. Thus, these are "self-pay" situations or self-insureds. Large companies such as Sandia Laboratories, PNM, APS and Intel cover their employees' health care costs in this way. The health plan for the State of NM employees is self-paid. Patients and even doctors are often confused by the fact that there is usually a large insurance company associated with such plans, so "BCBS" or "Mutual of Omaha" may appear on their "insurance" card. What is actually happening in these cases is that the insurance company is only hired to process claims, serving as a third party administrator or TPA. The patient may think that they have BCBS insurance, but their company is actually paying their own claims without any intermediary insurance policy.

Although these types of health plans may reimburse the services of a doctor of oriental medicine, and many do, there are no requirements in the laws of the state that they must do so. The protective laws described above do not apply to these self paid plans. Self Insureds do not fall under the jurisdiction of the superintendent of the New Mexico Department of Insurance, but in some rare situations a patient may still be able to enlist the help of the Department to intercede when there is some general abuse or inappropriate claims handling occurring.

 

WORKERS' COMPENSATION

Doctors of oriental medicine do receive workers' compensation reimbursement. The involvement of a DOM may be at one of two levels.

First, a DOM may serve in the capacity of the patient's official health care provider, the main physician in charge of evaluating the employee's injury, treating, and guiding all care, including making referrals to any appropriate specialists. An employer shall initially either select the health care provider for the injured worker or permit the injured worker to make the selection. That selection shall be in effect during the first sixty days from the date the worker receives treatment from the initially selected health care provider, after which the party who did not make the initial selection (either the employer or the worker) may select a health care provider of his or her choice by completing the appropriate Workers’ Compensation Administration forms. If one party objects to the choice of health care provider a workers' compensation judge decides the case.

Alternately, a patient with another existing health care provider may go to a DOM if referred by their official health care provider of record. Such a referral will customarily be for a limited number of sessions, possibly with constraints on the type of care provided.

In either case, care reimbursement may be subject to authorization by the insurance adjuster assigned to the case.

The following two sections are from the Workers' Compensation Act and apply to people (workers) who sustain job related medical problems.

52-1-49. Medical and related benefits; selection of health care provider; artificial members.
A. After an injury to a worker and subject to the requirements of the Workers' Compensation Act [this article], and continuing as long as medical or related treatment is reasonably necessary the employer shall, subject to the provisions of this section, provide the worker in a timely manner reasonable and necessary health care services from a health care provider.
B. The employer shall initially either select the health care provider for the injured worker or permit the injured worker to make the selection. Subject to the provisions of this section, that selection shall be in effect during the first sixty days from the date the worker receives treatment from the initially selected health care provider.
C. After the expiration of the initial sixty-day period set forth in Subsection B of this section, the party who did not make the initial selection may select a health care provider of his choice. Unless the worker and employer otherwise agree, the party seeking such a change shall file a notice of the name and address of his choice of health care provider with the other party at least ten days before treatment from that health care provider begins. The director shall adopt rules and regulations governing forms, which employers shall post in conspicuous places, to enable this notice to be promptly and efficiently provided. This notice may be filed on or after the fiftieth day of the sixty-day period set forth in Subsection B of this section.
D. If a party objects to the choice of health care provider made pursuant to Subsection C of this section, then he shall file an objection to that choice pursuant to Subsection E of the section with a workers' compensation judge within three days from receiving the notice. He shall also provide notice of that objection to the other party. If the employer does not file his objection within the three-day period, then he shall be liable for the cost of treatment provided by the worker's health care provider until the employer does file his objection and the workers' compensation judge has rendered his decision as set forth in Subsection F of this section. If the worker does not file his objection within the three-day period, then the employer shall only be liable for the cost of treatment from the health care provider selected by the employer, subject to the provisions of Subsections E, F and G of this section. Nothing in this section shall remove the employer's obligation to provide reasonable and necessary health care services to the worker so long as the worker complies with the provisions of this section.
E. If the worker or employer disagrees with the choice of the health care provider of the other party at any time, including the initial sixty-day period, and they cannot otherwise agree, then he shall submit a request for a change of health care provider to a workers' compensation judge. The director shall adopt rules and regulations governing forms, which employers shall post in conspicuous places, to submit to a workers' compensation judge a request for change of health care provider.
F. The request shall state the reasons for the request and may state the applicant's choice for a different health care provider. The applicant shall bear the burden of proving to the workers' compensation judge that the care being received is not reasonable. The workers' compensation judge shall render his decision within seven days from the date the request was submitted. If the workers; compensation judge grants the request, he shall designate either the applicant's choice of health care provider or a different health care provider.
G. If the worker continues to receive treatment or services from a health care provider rejected by the employer and not in compliance with the workers' compensation judge's ruling, then the employer is not required to pay for any of the additional treatment or services provided to that worker by that health care provider.
H. In all cases where the injury is such as to permit the use of artificial members, including teeth and eyes, the employer shall pay for the artificial members.

52-4-1. Definition; health care provider.
As used in Chapter 52 NMSA 1978, "health care provider" means:
A. any hospital maintained by the state or any political subdivision of the state or any place currently licensed as a hospital by the health and environment department [department of health] that has:
(1) accommodations for resident bed patients;
(2) a licensed professional registered nurse always on duty or call;
(3) a laboratory; and
(4) an operating room where surgical operations are performed;
B. an optometrist licensed pursuant to the provisions of Chapter 61, Article 2 NMSA 1978;
C. a chiropractor licensed pursuant to the provisions of Chapter 61, Article 4 NMSA 1978;
D. a dentist licensed pursuant to the provisions of Chapter 61, Article 5 NMSA 1978;
E. a physician licensed pursuant to the provisions of Chapter 61, Article 6 NMSA 1978;
F. a podiatrist licensed pursuant to the provisions of Chapter 61, Article 8 NMSA 1978;
G. an osteopathic physician licensed pursuant to the provisions of Chapter 61, Article 10 NMSA 1978;
H. a physician assistant registered pursuant to the provisions of Section 61-6-7 NMSA 1978;
I. a certified nurse practitioner licensed pursuant to Section 61-3-14 NMSA 1978;
J. a physical therapist licensed pursuant to the provisions of Chapter 61, Article 12 NMSA 1978;
K. an occupational therapist licensed pursuant to the provisions of Chapter 61, Article 12A NMSA 1978;
L. a doctor of oriental medicine licensed pursuant to the provisions of Chapter 61, Article 14A NMSA 1978;
M. a psychologist who is duly licensed or certified in the state where the service is rendered, holding a doctorate degree in psychology and having at least two years clinical experience in a recognized health setting, or who has met the standards of the national register of health services providers in psychology;
N. a certified nurse-midwife licensed by the board of nursing as a registered nurse and registered with the behavioral health services division of the health and environment department as a certified nurse-midwife; or
O. any person or facility that provides health-related services in the health care industry, as approved by the director.

 

HEALTH MAINTENANCE ORGANIZATIONS

The following section applies to Health Maintenance Organizations. Each HMO must include at least one doctor of oriental medicine in an area. Also understood is that an HMO must include enough D.O.M.s to meet the needs and demands of an area. D.O.M.s are defined as primary care providers in the Acupuncture and Oriental Medicine Practice Act and it has been argued that it is discrimination to not include D.O.M.s as "gatekeepers" within an HMO, although none are at this time.

59A-46-36. Doctor of oriental medicine discrimination prohibited.
Doctors of oriental medicine as a class of licensed providers willing to meet the terms and conditions offered by a health maintenance organization shall not be excluded from a health maintenance organization.

 

NONPROFIT HEALTH CARE PLANS

The following section applies to Nonprofit Health Care Plans. Traditional Blue Cross Blue Shield is an example of a Nonprofit Health Care Plan. Nonprofits must cover all services provided by a doctor of oriental medicine within their scope of practice and must reimburse at levels equal to those paid any other doctor for similar services.

59A-47-28.2. Doctor of oriental medicine discrimination prohibited.
All individual and group subscriber contracts delivered or issued for delivery in New Mexico by a nonprofit health care plan that, on a service or indemnity basis, or both, provide for treatment of persons for the prevention, cure or correction of any illness or physical or mental condition, shall not contain any provisions that exclude a licensed doctor of oriental medicine as a provider of oriental medical services and shall not discriminate in the reimbursement levels for such services between types of licensed health care providers.

 

POLICIES NOT SITUSED IN NEW MEXICO

The following section applies to policies that are not sitused in New Mexico and that are also not subject exclusively to the jurisdiction of another agency of this state or the federal government. The situs of a policy is the location where the main policy is written. For example the main office for a company may be located in another state with a branch office in New Mexico. Employees working at the branch office in New Mexico would likely be insured by a policy through the main office in another state and that policy would likely be sitused in that other state where the main office is located. However by this section, policies sitused outside of New Mexico fall under the jurisdiction of the laws of New Mexico unless they are exclusively under the jurisdiction of an agency of the federal government (such as health insurance for federal employees). Therefore, if a policy, sitused in another state, does not cover acupuncture and oriental medical services and if, hypothetically, that policy should cover these services if it were sitused in New Mexico, then the superintendent of the New Mexico Department of Insurance has jurisdiction over that policy and the insurance laws of New Mexico apply to that policy, for those policy holders in New Mexico, and the policy is required to cover acupuncture and oriental medical services.

59A-15-16. Jurisdiction over health care benefits providers presumed.
Notwithstanding any other provision of law, and except as provided in the Health Care Benefits Jurisdiction Act [59A-15-14 to 59A-15-19 NMSA 1978], any person that provides coverage in this state for health benefits, including coverage for medical, surgical, hospital, osteopathic, acupuncture and oriental medical, chiropractic, physical therapy, speech pathology, audiology, professional mental health, dental or optometric expenses, whether such coverage is by direct payment, reimbursement or otherwise, shall be presumed to be subject to the provisions of the Insurance Code [this chapter, except Articles 16A, 23A, 23B, 24A and Section 59A-33-14 NMSA 1978] and the jurisdiction of the superintendent unless the person provides evidence satisfactory to the superintendent that it is subject exclusively to the jurisdiction of another agency of this state or the federal government.

 

METs & MEWAs

Some insurance companies are not insurance companies. If coverage is with New Mexico & West Texas Multicraft--Local 492 or some other odd entity with the word "Trust" in it, it may be a MET or MEWA. MET means Multiple Employer Trust. MEWA means Multiple Employer Welfare Arrangement. It has been said that such groups have been organized almost entirely to get around state insurance laws of the type discussed above. There have been administrative rules about METs & MEWAs on the books for some years. The position of the Superintendent has been that anyone organizing insurance coverage had to meet the full standards demanded of insurance companies operating in this state. However, a small regulatory agency like our NM Dept. of Insurance apparently did not have the full resources to enforce those rules effectively. METs & MEWAs have thus been operating outside of the law. They certainly tend to operate outside of the law regarding acupuncture and Oriental Medicine.

 

MEDICAID

The following section applies to Medicaid. Medicaid benefits are not mandated. Future funding may change this situation, as reflected in the following statutory language.

27-2-12. Medical assistance programs.
Consistent with the federal act and subject to the appropriation and availability of federal and state funds, the medical assistance division of the human services department may by regulation provide medical assistance, including the services of licensed doctors or oriental medicine and licensed chiropractors, to persons eligible for public assistance programs under the federal act.

 

MEDICARE

The Medicare program does not currently cover acupuncture or any services provided by a DOM. However, patients covered under Medicare often have additional coverage. At times, such add-on coverage only pays the 20% coinsurance for services otherwise authorized by Medicare. Such an add-on policy would provide no benefits for acupuncture or other DOM services. On the other hand, some patients with Medicare have full-featured coverage through another normal health insurance policy. And, many other variations exist. For example, retired state employees can chose between two options; one option provides no benefits for services by DOMs, while the other option, called "Break-out Plus", does provide benefits for DOM services.

 

MISCELLANEOUS PLANS UNDER FEDERAL JURISDICTION

There are a significant number of health plans that are not subject to the above mentioned NM laws because they are governed by US law. These include health plans and workers compensation plans for postal workers and federal employees.

 

OTHER TYPES OF INSURANCE

There are at least two other types of health insurance available in New Mexico. The first type is health insurance available through Fraternal Benefit Societies as defined in Article 44 of the Insurance Code [59A-44]. An example is coverage by the company Woodmen of the World, which arose out of a large lodge or club by the same name. The second type of health insurance is that available through the Comprehensive Health Insurance Pool, commonly referred to as CHIPS or the CHIPS Pool, as defined in Article 54 of the Insurance Code [59A-54]. The purpose of CHIPS "is to provide access to health insurance coverage to all residents of New Mexico who are denied adequate health insurance and are considered uninsurable" [59A-54-2]. For example an individual who has experienced a catastrophic "incurable" disease that has previously received or might in the future require expensive treatment would be eligible for CHIPS. Under CHIPS, reimbursement for the services of a doctor of oriental medicine is currently limited to $1,500.00 annually.

 

PROBLEMS

Patients who have problems with an insurer are encouraged to put their complaint into writing, enclose photocopies of correspondence from their insurance company, and send the complaint to NM Department of Insurance, Consumer Division, P.O. Drawer 1269, Santa Fe, NM 87504-1269.

 

MORE INFORMATION

The complete Acupuncture and Oriental Medicine Practice Act can be found at the New Mexico Board of Acupuncture and Oriental Medicine website at www.rld.state.nm.us/acupuncture.

The complete New Mexico Insurance Code can be found at the New Mexico Legislature website at www.legis.state.nm.us.
New Mexico Doctors of Oriental Medicine are encouraged to join and participate in The Oriental Medicine Association. Participation provides doctors the opportunity to learn more about these issues, to exchange information and resources, and to influence the ongoing effort to shape these laws in the NM Legislature. For more information log onto www.TheOrientalMedicineAssociation.com.

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Oriental medicine is a traditional, evolving, holistic healthcare system that integrates the art and science of diagnosing, treating, prescribing for, curing, and preventing physical and mental disease, relieving pain, and preserving and improving physical, mental, emotional, spiritual and societal health and the healthy ecology of the planet through the application of an understanding of balance, harmony, form, function, yin, yang, qi, metaphysics, the natural sciences and biomedicine.