2020 New Mexico Statutes
Chapter 59A - Insurance Code
Article 23F - New Mexico Health Insurance Exchange
Section 59A-23F-3 - New Mexico health insurance exchange created; board created.
A. The "New Mexico health insurance exchange" is created as a nonprofit public corporation to provide qualified individuals and qualified employers with increased access to health insurance in the state and shall be governed by a board of directors constituted pursuant to the provisions of the New Mexico Health Insurance Exchange Act. The exchange is a governmental entity for purposes of the Governmental Conduct Act [Chapter 10, Article 16 NMSA 1978], the Gift Act [Chapter 10, Article 16B NMSA 1978], the Sunshine Portal Transparency Act [Chapter 10, Article 16D NMSA 1978], the Whistleblower Protection Act [10-16C-1 to 10-16C-4 NMSA 1978], the Procurement Code [13-1-28 to 13-1-199 NMSA 1978] and the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978], and neither the exchange nor the board shall be considered a governmental entity for any other purpose.
B. The exchange shall not duplicate, impair, enhance, supplant, infringe upon or replace, in whole or in any part, the powers, duties or authority of the superintendent, including the superintendent's authority to review and approve premium rates pursuant to the provisions of the Insurance Code [59A-1-1 NMSA 1978].
C. All health insurance issuers and health maintenance organizations authorized to conduct business in this state and meeting the requirements of the rules promulgated by the superintendent pursuant to Section 59A-23F-7 NMSA 1978, the regulations under federal law and the requirements established by the board shall be eligible to participate in the exchange.
D. The "board of directors of the New Mexico health insurance exchange" is created. The board consists of thirteen voting directors as follows:
(1) one voting director is the superintendent or the superintendent's designee;
(2) six voting directors appointed by the governor, including the secretary of human services or the secretary's designee, a health insurance issuer and a consumer advocate; and
(3) six voting directors, three appointed by the president pro tempore of the senate, including one health care provider, and three appointed by the speaker of the house of representatives, including one health insurance issuer. One of the directors appointed by the president pro tempore of the senate and one of the directors appointed by the speaker of the house of representatives shall be from a list of at least two candidates provided, respectively, by the minority floor leader of the senate and by the minority floor leader of the house of representatives.
E. Except as provided in Subsection F of this section, managerial and full-time staff of the exchange shall be subject to applicable provisions of the Governmental Conduct Act and shall not have any direct or indirect affiliation with any health care provider, health insurance issuer or health care service provider.
F. Each director shall comply with the conflict-of-interest provisions of Subsection E of this section, except as follows:
(1) directors who may be appointed from the board of directors of the New Mexico medical insurance pool shall not be considered to have a conflict of interest with respect to their association with that entity;
(2) the secretary of human services, or the secretary's designee, shall not be considered to have a conflict of interest with respect to the secretary's performance of the secretary's duties as secretary of human services;
(3) the director who is a health care provider shall not be considered to have a conflict of interest arising from that director's receipt of payment for services as a health care provider; and
(4) directors who are representatives of health insurance issuers shall not be considered to have a conflict of interest with respect to those directors' association with their respective health insurance issuers.
G. Each director and employee of the exchange shall have a fiduciary duty to the exchange, to the state and to those persons who purchase or enroll in qualified health plan coverage or medical assistance coverage through the exchange.
H. The board shall be composed, as a whole, to assure representation of the state's Native American population, ethnic diversity, cultural diversity and geographic diversity.
I. Directors shall have demonstrated knowledge or experience in at least one of the following areas:
(1) purchasing coverage in the individual market;
(2) purchasing coverage in the small employer market;
(3) health care finance;
(4) health care economics or health care actuarial science;
(5) health care policy;
(6) the enrollment of underserved residents in health care coverage;
(7) administration of a private or public health care delivery system;
(8) information technology;
(9) starting a small business with fifty or fewer employees; or
(10) provision of health care services.
J. The governor shall appoint no more than four directors from the same political party.
K. Except for the secretary of human services, the non-health insurance issuer directors appointed by the governor shall be appointed for initial terms of three years or less, staggered so that the term of at least one director expires on June 30 of each year. The non-health insurance insurer directors appointed by the legislature shall be appointed for initial terms of three years or less, staggered so that the term of at least one director expires on June 30 of each year. The health insurance issuers appointed to the board shall, upon appointment, select one of them by lot to have an initial term ending on June 30 following one year of service and one to have an initial term ending on June 30 following two years of service. Following the initial terms, health insurance issuer directors shall be appointed for terms of two years. A director whose term has expired shall continue to serve until a successor is appointed by the respective appointing authority. Health insurance issuer directors shall not serve two consecutive terms.
L. The exchange, members of the board and employees of the exchange shall operate consistent with provisions of the Governmental Conduct Act, the Inspection of Public Records Act [Chapter 14, Article 2 NMSA 1978], the Financial Disclosure Act [Chapter 10, Article 16A NMSA 1978], the Gift Act, the Whistleblower Protection Act, the Open Meetings Act [Chapter 10, Article 15 NMSA 1978] and the Procurement Code and shall not be subject to the Personnel Act [Chapter 10, Article 9 NMSA 1978].
M. The board and the exchange shall implement performance-based budgeting and submit annual budgets for the exchange to the secretary of finance and administration and the legislative finance committee.
N. The exchange shall cover its directors and employees under a surety bond, in an amount that the director of the risk management division of the general services department shall prescribe.
O. A majority of directors constitutes a quorum. The board may allow members to attend meetings by telephone or other electronic media. A decision by the board requires a quorum and a majority of directors in attendance voting in favor of the decision.
P. Within thirty days of the effective date of the New Mexico Health Insurance Exchange Act, the board shall be fully appointed and the superintendent shall convene an organizational meeting of the board, during which the board shall elect a chair and vice chair from among the directors. Thereafter, every three years, the board shall elect in open meeting a chair and vice chair from among the directors. The chair and vice chair shall serve no more than two consecutive three-year terms as chair and vice chair.
Q. A vacancy on the board shall be filled by appointment by the original appointing authority for the remainder of the director's unexpired term.
R. A director may be removed from the board by a two-thirds majority vote of the directors. The board shall set standards for attendance and may remove a director for lack of attendance, neglect of duty or malfeasance in office. A director shall not be removed without proceedings consisting of at least one ten-day notice of hearing and an opportunity to be heard. Removal proceedings shall be before the board and in accordance with procedures adopted by the board.
S. Appointed directors may receive per diem and mileage in accordance with the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978], subject to the travel policy set by the board. Appointed directors shall receive no other compensation, perquisite or allowance.
T. The board shall:
(1) meet at the call of the chair and no less often than once per calendar quarter. There shall be at least seven days' notice given to directors prior to any meeting. There shall be sufficient notice provided to the public prior to meetings pursuant to the Open Meetings Act;
(2) create, make appointments to and duly consider recommendations of an advisory committee or committees made up of stakeholders, including health insurance issuers, health care consumers, health care providers, health care practitioners, insurance producers, qualified employer representatives and advocates for low-income or underserved residents;
(3) create an advisory committee made up of members insured through the New Mexico medical insurance pool to make recommendations to the board regarding the transition of each organization's insured members into the exchange. The advisory committee shall only exist until a transition plan has been adopted by the board;
(4) create an advisory committee made up of Native Americans, some of whom live on a reservation and some of whom do not live on a reservation, to guide the implementation of the Native American-specific provisions of the federal Patient Protection and Affordable Care Act and the federal Indian Health Care Improvement Act;
(5) designate a Native American liaison, who shall assist the board in developing and ensuring implementation of communication and collaboration between the exchange and Native Americans in the state. The Native American liaison shall serve as a contact person between the exchange and New Mexico Indian nations, tribes and pueblos and shall ensure that training is provided to the staff of the exchange, which may include training in:
(a) cultural competency;
(b) state and federal law relating to Indian health; and
(c) other matters relating to the functions of the exchange with respect to Native Americans in the state; and
(6) establish at least one walk-in customer service center where persons may, if eligible, enroll in qualified health plans or public coverage programs.
History: Laws 2013, ch. 54, § 3; 2019, ch. 266, § 1; 2020, ch. 35, § 3.
ANNOTATIONSCross references. — For the federal Indian Health Care Improvement Act, see 25 U.S.C. § 1603.
The 2020 amendment, effective May 20, 2020, removed a provision prohibiting the exchange from purchasing qualified health plans from insurance health insurers to offer for purchase through the exchange, provided that all health insurance issuers and health maintenance organizations authorized to conduct business in this state must meet the requirements established by the board of directors of the exchange to be eligible to participate in the exchange, and removed the New Mexico health insurance alliance from the conflict of interest provision; deleted former Subsection C, which provided "The exchange shall not purchase qualified health plans from insurance health issuers to offer for purchase through the exchange." and redesignated the succeeding subsections accordingly; in Subsection C, after "NMSA 1978, the", deleted "rules" and added "regulations", and after "federal", deleted "act" and added "law and the requirements established by the board"; in Subsection D, Paragraph D(3), before each occurrence of "leader", added "floor"; in Subsection E, after "Subsection", deleted "G" and added "F"; in Subsection F, in the introductory clause, after "Subsection", deleted "F" and added "E", and in Paragraph F(1), after "New Mexico medical insurance pool", deleted "and the New Mexico health insurance alliance"; and in Subsection T, Paragraph T(2), after "health care practitioners", deleted "brokers" and added "insurance producers".
The 2019 amendment, effective June 14, 2019, provided that the New Mexico health insurance exchange is a governmental entity for purposes of the Governmental Conduct Act, the Gift Act, the Sunshine Portal Transparency Act, the Whistleblower Protection Act and the Procurement Code, provided that each director and employee of the health insurance exchange has a fiduciary duty to the state and to those persons who purchase or enroll in qualified health plan coverage or medical assistance coverage through the exchange, and provided additional duties and responsibilities for the board of directors of the health insurance exchange and employees of the exchange; in Subsection A, after "for purposes of the", added "Governmental Conduct Act, the Gift Act, the Sunshine Portal Transparency Act, the Whistleblower Protections Act, the Procurement Code and the"; in Subsection D, after "pursuant to Section", deleted "7 of the New Mexico Health Insurance Exchange Act" and added "59A-23F-7 NMSA 1978"; in Subsection H, after "duty to the exchange", added "to the state and to those person who purchase or enroll in qualified health plan coverage or medical assistance coverage through the exchange"; in Subsection M, after "The exchange", deleted "and the board" and added "members of the board and employees of the exchange", after "Financial Disclosure Act", added "the Gift Act, the Whistleblower Protection Act", after "Open Meetings Act and", added "the Procurement Code and", and after "subject to", deleted "the Procurement Code or"; added new Subsections N and O and redesignated former Subsections N through S as Subsections P through U, respectively; and in Subsection U, Paragraph U(3), after "insured through", deleted "the New Mexico health insurance alliance and".
Severability. — Laws 2013, ch. 54, § 16 provided that if any part or application of Laws 2013, ch. 54, §§ 1 through 15 are held invalid, the remainder or its application to other situations or persons shall not be affected.
