| (a) Coverage by two or more plans. When a person is
covered by two or more plans, the rules for determining the order
of benefit payments will be determined as provided in paragraphs (1)
- (5) of this subsection.
(1) The primary plan must pay or provide its benefits
as if the secondary plan or plans did not exist.
(2) A plan may take into consideration the benefits
paid or provided by another plan only when, under this subchapter,
it is secondary to that other plan.
(3) If the primary plan is a closed panel plan and
the secondary plan is not, the secondary plan must pay or provide
benefits as if it were the primary plan when a covered person uses
a noncontracted health care provider or physician, except for emergency
services or authorized referrals that are paid or provided by the
primary plan.
(4) When multiple contracts providing coordinated coverage
are treated as a single plan under this subchapter, this section applies
only to the plan as a whole, and coordination among the component
contracts is governed by the terms of the contracts. If more than
one carrier pays or provides benefits under the plan, the carrier
designated as primary within the plan must be responsible for the
plan's compliance with this subchapter.
(5) If a person is covered by more than one secondary
plan, the order of benefit determination rules of this subchapter
decide the order in which secondary plans' benefits are determined
in relation to each other. Each secondary plan must take into consideration
the benefits of the primary plan or plans and the benefits of any
other plan, that, under the rules of this subchapter, has its benefits
determined before those of that secondary plan.
(b) Exception. Except as provided by subsection (c)
of this section and §3.3509(b) of this title (relating to Miscellaneous
Provisions), a plan that does not contain order of benefit determination
provisions that are consistent with this subchapter is always the
primary plan unless the provisions of both plans state that the complying
plan is primary.
(c) Coverage by membership in a group. Coverage that
is obtained by virtue of membership in a group and designed to supplement
a part of a basic package of benefits may provide that the supplementary
coverage must be excess to any other parts of the plan provided by
the contract holder. Examples of these types of situations are major
medical coverages that are superimposed over base plan hospital and
surgical benefits, and insurance-type coverages that are written in
connection with a closed panel plan to provide out-of-network benefits.
(d) Order of benefit determination. Each plan determines
its order of benefits using the first of the following rules that
apply.
(1) Nondependent or dependent.
(A) Subject to this subparagraph and subparagraph (B)
of this paragraph, the plan that covers the person other than as a
dependent, for example, as an employee, member, subscriber, policyholder,
certificate holder, or retiree, is the primary plan, and the plan
that covers the person as a dependent is the secondary plan.
(B) If the person is a Medicare beneficiary, subparagraph
(C) of this paragraph applies if, and as a result of the provisions
of Title XVIII of the Social Security Act and implementing regulations,
Medicare is:
(i) secondary to the plan covering the person as a
dependent; and
(ii) primary to the plan covering the person as other
than a dependent, for example, a retired employee.
(C) Under subparagraph (B) of this paragraph, as applicable,
the order of benefits is reversed so that the plan covering the person
as an employee, member, subscriber, policyholder, certificate holder,
or retiree is the secondary plan and the other plan covering the person
as a dependent is the primary plan.
(2) Dependent child covered under more than one plan.
Unless there is a court order stating otherwise, plans covering a
dependent child must determine the order of benefits using the following
rules that apply.
(A) For a dependent child whose parents are married
or are living together, whether or not they have ever been married:
(i) the plan of the parent whose birthday falls earlier
in the calendar year is the primary plan; or
(ii) if both parents have the same birthday, the plan
that has covered the parent longest is the primary plan.
(B) For a dependent child whose parents are divorced
or are not living together, whether or not they have ever been married:
(i) if a court order states that one of the parents
is responsible for the dependent child's health care expenses or health
care coverage, and the plan of that parent has actual knowledge of
those terms, that plan is primary. If the parent with responsibility
has no health care coverage for the dependent child's health care
expenses, and that parent's spouse does, then the spouse's plan is
the primary plan. This clause must not apply with respect to any plan
year during which benefits are paid or provided before the entity
has actual knowledge of the court order provision.
(ii) if a court order states that both parents are
responsible for the dependent child's health care expenses or health
care coverage, the provisions of subparagraph (A) of this paragraph
must determine the order of benefits.
(iii) if a court order states that the parents have
joint custody without specifying that one parent has responsibility
for the health care expenses or health care coverage of the dependent
child, the provisions of subparagraph (A) of this paragraph must determine
the order of benefits.
(iv) if there is no court order allocating responsibility
for the child's health care expenses or health care coverage, the
order of benefits for the child is as follows:
(I) the plan covering the custodial parent;
(II) the plan covering the custodial parent's spouse;
(III) the plan covering the noncustodial parent; then
(IV) the plan covering the noncustodial parent's spouse.
(C) For a dependent child covered under more than one
plan of individuals who are not the parents of the child, the order
of benefits must be determined, as applicable, under subparagraph
(A) or (B) of this paragraph as if the individuals were parents of
the child.
(D) For a dependent child who has coverage under either
or both parents' plans and has his or her own coverage as a dependent
under a spouse's plan, subsection (e) of this section applies.
(E) In the event the dependent child's coverage under
the spouse's plan began on the same date as the dependent child's
coverage under either or both parents' plans, the order of benefits
must be determined by applying the birthday rule in subparagraph (A)
of this paragraph to the dependent child's parent(s) and the dependent's
spouse.
(3) Active employee, retired, or laid-off employee.
(A) The plan that covers a person as an active employee
who is neither laid off nor retired, or as a dependent of an active
employee, is the primary plan. The plan that covers that same person
as a retired or laid-off employee or as a dependent of a retired or
laid-off employee is the secondary plan.
(B) If the plan that covers the same person as a retired
or laid-off employee or as a dependent of a retired or laid-off employee
does not conform to the requirements of subparagraph (A) of this paragraph,
and as a result, the plans do not agree on the order of benefits,
this paragraph does not apply.
(C) This paragraph does not apply if paragraph (1)
of this subsection can determine the order of benefits.
(4) COBRA or state continuation coverage.
(A) If a person whose coverage is provided under COBRA
or under a right of continuation under state or other federal law
is covered under another plan, the plan covering the person as an
employee, member, subscriber, or retiree or covering the person as
a dependent of an employee, member, subscriber, or retiree is the
primary plan, and the plan covering that same person under COBRA or
under a right of continuation under state or other federal law is
the secondary plan.
(B) If the plan that covers the same person under COBRA
or under a right of continuation does not conform to the requirements
of subparagraph (A) of this paragraph, and as a result, the plans
do not agree on the order of benefits, this paragraph does not apply.
(C) This paragraph does not apply if paragraph (1)
of this subsection can determine the order of benefits.
(e) Length of time. If subsection (d) of this section
does not determine the order of benefits, the plan that has covered
the person for the longer period of time is the primary plan. The
plan that has covered the person for the shorter period of time is
the secondary plan.
Cont'd... |
