Frequently Asked Questions

• A group health plan can count as pre-existing conditions only those for which you actually received (or were recommended to receive) a diagnosis, treatment or medical advice within the 6 months immediately before you joined that plan. This period is called the look back period.
• Group health plans cannot apply a pre-existing condition exclusion period for pregnancy, newborns, newly adopted children, children placed for adoption, or genetic information.
• Group health plans can exclude coverage for pre-existing conditions only for a limited time. In fully insured group health plans, the maximum pre-existing exclusion period is 6 months. In self-insured group health plans, the maximum period is 12 months. You must be given credit toward your pre-existing condition exclusion period for any previous continuous coverage.

If you enroll late in a group health plan (after you were hired and not during a regular or special enrollment period), coverage for your pre-existing condition can be excluded for as long as 18 months. However, if you are a late enrollee in an Alliance group health plan, the maximum pre-existing condition exclusion period is still 6 months.

• Group health plans that impose pre-existing condition exclusion periods must give credit for any previous continuous creditable coverage. Most types of private and government sponsored health coverage are considered to be creditable coverage. Coverage counts as continuous if it has not been interrupted by a break of 63 or more days in a row.

If I go on medical leave does my insurance still cover me?

A federal law known as the Family and Medical Leave Act (FMLA) guarantees you up to 12 weeks of job-protected leave in these circumstances.
The FMLA applies to you if you work at a company with 50 or more employees.
If you qualify for leave under FMLA, your employer must continue your health benefits. You will have to continue paying your share of the premium.
If you decide not to return to work at the end of the leave period, your employer may require you to pay back the employer’s share of the premium. However, if you don’t return to work because of factors outside of your control (such as a need to continue caring for a sick family member, or because your spouse is transferred to a job in a distant city), you will not have to repay the premium.
For more information about your rights under the FMLA, contact the U.S. Department of Labor.

What will my individual health insurance cover?

It depends on what you buy. New Mexico does not require health insurers in the individual market to sell standardized policies. Insurers design different policies and you will have to read and compare them carefully. Sometimes, individual health insurance provides less comprehensive coverage than group health plans, especially for certain services such as maternity care, mental health care, or prescription drugs. However, New Mexico does require all health plans to cover certain benefits – such as childhood immunizations and minimum hospital stays following mastectomies. Check with the New Mexico Division of Insurance for more information about mandated benefits.

What about New Mexico continuation coverage?

• If your employer offers fully insured health benefits and has fewer than 20 workers, you may also be eligible for up to 6 months of continuation coverage under a New Mexico law that issimilar to COBRA. Ask your former employer or the New Mexico Division of Insurance about state continuation coverage if you think it applies to you.
• If your employer offers health insurance through the New Mexico Health Insurance Alliance and you leave that job, you can continue your Alliance health plan indefinitely. You must have been covered under Alliance group health plan for at least 6 months to qualify for this continuation coverage. You are eligible for continuation coverage if you lost your group coverage for almost any reason, including losing or quitting your job, aging off your parents' policy, losing coverage you had through a family member due to death or divorce, and losing coverage because your employer goes out of business.

If you had dependent coverage, you and your dependents can elect this continuation coverage independently. Premiums for Alliance continuation coverage are the same as those charged other individuals. Your premium will be about 9 percent higher than your old group premium (employer and employee share).

When do I have to be offered COBRA coverage?

If you are leaving your job and you had group coverage, you may be able to stay in your group plan for an extended time through COBRA or state continuation coverage. The information presented below was taken from publications prepared by the U.S. Department of Labor. You should contact them for more information about your rights under COBRA.

• To qualify for COBRA continuation coverage, you must meet 3 criteria:

First, you must work for an employer with 20 or more employees. If you work for an employer with 2-19 employees, you may qualify for state continuation coverage.
Second, you must be covered under the employer’s group health plan as an employee or as the spouse or dependent child of an employee.
Finally, you must have a qualifying event that would cause you to lose your group health coverage.

COBRA QUALIFYING EVENTS
For employees

• Voluntary or involuntary termination of employment for reasons other than gross misconduct
• Reduction in numbers of hours worked

For spouses

• Loss of coverage by the employee because of one of the qualifying events listed above
• Covered employee becomes eligible for Medicare
• Divorce or legal separation of the covered employee
• Death of the covered employee

For dependent children

• Loss of coverage because of any of the qualifying events listed for spouses
• Loss of status as a dependent child under the plan rules

Each person who is eligible for COBRA continuation can make his or her own decision. If your dependents were covered under your employer plan, they may elect COBRA coverage even if you do not.
You must be notified of your COBRA rights when you join the group health plan, and again if you qualify for COBRA coverage. The notice rules are somewhat complicated and you should contact the U.S. Department of Labor for more information.
In general, if the event that qualifies you for COBRA coverage involves the death, termination, reduction in hours worked, or Medicare eligibility of a covered worker, the employer has 30 days to notify the group health plan of this event. However, if the qualifying event involves divorce or legal separation or loss of dependent status, YOU have 60 days to notify the group health plan. Once it has been notified of the qualifying event, the group health plan has 14 days to send you a notice about how to elect COBRA coverage. Each member of your family eligible for COBRA coverage then has 60 days to make this election.
Once you elect COBRA, coverage will begin retroactive to the qualifying event. You will have to pay premiums dating back to this period.
To qualify as HIPAA eligible, you must choose and use up any COBRA or state continuation coverage available to you.

Do insurance companies have to sell me health insurance?

With few exceptions, small employers cannot be turned down. This is called guaranteed issue. If you employ at least 2 but not more than 50 people eligible for health benefits, health insurance companies must sell you any small group health plan they sell to other small employers. However, they can require that a minimum percentage of your eligible employees sign up for coverage. They can also require you to pay a minimum share of your workers’ premiums. Small group health plans in the Alliance cannot impose minimum contribution requirements and must follow Alliance rules about minimum participation rates. If you are buying a large group health plan for 51 or more eligible employees, your group can be turned down.
Your insurance cannot be canceled because someone in your group becomes seriously ill. This is called guaranteed renewability and it applies to group plans of all sizes. Insurers can impose other conditions, however. They can require you to meet minimum participation and contribution rates in order to renew your coverage. Additionally, they can refuse to renew your coverage for nonpayment of premiums or if you commit fraud, or if they are discontinuing that insurance product, or if they are withdrawing from the small employer market. In case of discontinuance, they must give you a chance to buy other plans they sell to groups of your size.

What if I am self-employed?

Usually, if you are self-employed with no other workers, you are not eligible to buy a group health plan on your own outside of the Alliance. Therefore, the laws that protect employers' access to group health plans do not apply to you. Your access to health insurance is protected by the laws that apply to individuals.
If you are buying coverage for yourself and at least one other family member, you can buy a group health plan through the New Mexico Health Insurance Alliance and will be protected by the rules that apply to other small groups.
If you are self-employed and buy your own health insurance, you are eligible to deduct 100% of your premium from your federal income tax.

Breast and Cervical Cancer Treatment Program

Women who are diagnosed with breast or cervical cancer or a precancerous condition through the New Mexico Breast and Cervical Cancer Early Detection Program (BCC) can apply for full healthcare coverage through Medicaid, which will cover the costs of treatment. For more information about eligibility, contact BCC at (505) 841-3896.
Women who do not qualify for Medicaid coverage can get financial assistance through other programs, including the Anita Salas Memorial Fund. Call (505) 841-5896 for more information about this program.

What is a waiting period for my group benefits? Does it count against my continuous coverage?

The time you may be required to work for an employer before you are eligible for health benefits. Not all employers require waiting periods. Waiting periods do not count as gaps in health insurance for purposes of determining whether coverage is continuous. If your employer requires a waiting period, your pre-existing condition exclusion period begins on the first day of the waiting period.

Can my employer not offer me insurance solely based on my health status?

A requirement that group health plans not discriminate against you based on your health status. This is called nondiscrimination. Your coverage under a group health plan cannot be denied or restricted, nor can you be charged a higher premium, because of your health status. Group health plans can restrict your coverage based on other factors (such as part time or temporary/ seasonal employment or job title) that are unrelated to health status.

How much leave am I entitled to under FMLA?

If you are an "eligible" employee, you are entitled to 12 weeks of leave for certain family and medical reasons during a 12-month period.

How is the 12-month period calculated under FMLA?

Employers may select one of four options for determining the 12-month period:

• the calendar year;

• any fixed 12-month "leave year" such as a fiscal year, a year required by state law, or a year starting on the employee's "anniversary" date;

• the 12-month period measured forward from the date any employee's first FMLA leave begins; or

• a "rolling" 12-month period measured backward from the date an employee uses FMLA leave.

Does the law guarantee paid time off?

No. The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.

Does workers’ compensation leave count against an employee’s FMLA leave entitlement?

It can. FMLA leave and workers’ compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.

Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?

Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.

Can the employer count time on maternity leave or pregnancy disability as FMLA leave?

Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer properly notifies the employee in writing of the designation.

If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?

In most situations, the employer cannot count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee’s return to work.
 

Who is considered an immediate "family member" for purposes of taking FMLA leave?

An employee’s spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law". The terms son or daughter do not include individuals age 18 or over unless they are "incapable of self-care" because of mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA).

May I take FMLA leave for visits to a physical therapist, if my doctor prescribes the therapy?

Yes. FMLA permits you to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay or for treatment of severe arthritis.
 

Which employees are eligible to take FMLA leave?
 

Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.
 

Do the 12 months of service with the employer have to be continuous or consecutive?

No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted.
 

Do the 1,250 hours include paid leave time or other absences from work?
 

No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

How do I determine if I have worked 1,250 hours in a 12-month period?

Your individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave. As a rule of thumb, the following may be helpful for estimating whether this test for eligibility has been met;

• 24 hours worked in each of the 52 weeks of the year; or

• over 104 hours worked in each of the 12 months of the year; or

• 40 hours worked per week for more than 31 weeks (over seven months) of the year.

Do I have to give my employer my medical records for leave due to a serious health condition?

No. You do not have to provide medical records. The employer may, however, request that, for any leave taken due to a serious health condition, you provide a medical certification confirming that a serious health condition exists.

Can my employer require me to return to work before I exhaust my leave?

Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment.

Are there any restrictions on how I spend my time while on leave?

Employers with established policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave. Otherwise, the employer may not restrict your activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.

Can my employer make inquiries about my leave during my absence?

Yes, but only to you. Your employer may ask you questions to confirm whether the leave needed or being taken qualifies for FMLA purposes, and may require periodic reports on your status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, you may be required to obtain additional medical certification at the employer’s expense, or rectification during a period of FMLA leave. The employer may have a health care provider representing the employercontact your health care provider, with your permission, to clarify information in the medical certification or to confirm that it was provided by the health care provider. The inquiry may not seek additional information regarding your health condition or that of a family member.

Can my employer refuse to grant me FMLA leave?

If you are an "eligible" employee who has met FMLA’s notice and certification requirements (and you have not exhausted your FMLA leave entitlement for the year), you may not be denied FMLA leave.

Will I lose my job if I take FMLA leave?

Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies. Under limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly-paid, salaried ("key") employees.

Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job?

In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off orotherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.

Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave.

Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12 month period" no longer have FMLA protections of leave or job restoration.

Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted.

Can my employer fire me for complaining about a violation of FMLA?

No. Nor can the employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA.

Does an employer have to pay bonuses to employees who have been on FMLA leave?

The FMLA requires that employees be restored to the same or an equivalent position. If an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work. The FMLA leave may not be counted against the employee. For example, if an employer offers a perfect attendance bonus, and the employee has not missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon returning from FMLA leave.

On the other hand, FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority. For example, an employee on FMLA leave might not have sufficient sales to qualify for a bonus. The employer is not required to make any special accommodation for this employee because of FMLA. The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave (as appropriate) are treated.

Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement?

In all circumstances, it is the employer's responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by the employee. Leave may not be designated as FMLA leave after the leave has been completed and the employee has returned to work, except if;

• the employer is awaiting receipt of the medical certification to confirm the existence of a serious health condition;

• the employer was unaware that leave was for an FMLA reason, and subsequently acquires information from the employee such as when the employee requests additional or extensions of leave; or,

• the employer was unaware that the leave was for an FMLA reason, and the employee notifies the employer within two days after return to work that the leave was FMLA leave.

Can my employer count FMLA leave I take against a no fault absentee policy?

No.