New Mexico Vaccine Purchasing Fund - ERISA Preemption

[Guest mhaysesq]

Has anyone reviewed the New Mexico Vaccine Purchasing Act? It purports to assess a fee upon ERISA group health plans, including self-funded plans for the cost of vaccines that the Department of Health purchases to have on hand for all children in New Mexico. The plans are invoiced for a proportionate cost of the vaccines provided to the health care providers. It seems to me that the law would be preempted with respect to such plans by ERISA but I'm hearing no discussion about it anywhere. The Act does not prevent the providers from then billing the plans for the immunizations, as well, creating duplicate payment scenario. In addition, there is a $500 per day penalty assessed for failing to pay an invoice.

Just curious if anyone has any thoughts...

[leevena]

I am in North Carolina, and am not familiar with NM. But surcharges such as this is no an ERISA issue, sorry. See New York State HCRA for an example, It even extends the surcharge to groups out-of-state who have an employee incur medical expenses in NY. I am sure there are others.

[Peter Gulia]

For others who are curious, here’s New Mexico’s “Vaccine Purchasing Act”.

http://www.nmlegis.gov/Sessions/15%20Regular/final/SB0121.pdf

Perhaps we’ll know a little more about ERISA preemption after the Supreme Court of the United States decides the Vermont Green Mountain Care Board case.

http://www.scotusblog.com/wp-content/uploads/2015/09/14-181_amicus_np_Zelinsky.authcheckdam.pdf

If the money is significant, might a health plan exposed to New Mexico pay the tax and petition for a refund?