(a) A secondary plan that provides benefits in the
form of services may recover the reasonable cash value of providing
the services from the primary plan, to the extent that benefits for
the services are covered by the primary plan and have not already
been paid or provided by the primary plan. This subsection does not
require a plan to reimburse a covered person in cash for the value
of services provided by a plan that provides benefits in the form
of services.
(b) A plan with order of benefit determination rules
that comply with this subchapter may coordinate its benefits with
a noncompliant plan that is "excess" or "always secondary" or that
uses order of benefit determination rules that are inconsistent with
those contained in this subchapter on the following basis:
(1) if the complying plan is the primary plan, it must
pay or provide its benefits first;
(2) if the complying plan is the secondary plan, it
must pay or provide its benefits first, but the amount of the benefits
payable must be determined as if the complying plan were the secondary
plan. In such a situation, the payment must be the limit of the complying
plan's liability; and
(3) if the noncompliant plan does not provide the information
needed by the complying plan to determine its benefits within a reasonable
time after it is requested to do so, the complying plan must assume
that the benefits of the noncompliant plan are identical to its own,
and must pay its benefits accordingly. If, within two years of payment,
the complying plan receives information as to the actual benefits
of the noncompliant plan, it must adjust payments accordingly.
(c) If a noncomplying plan reduces its benefits so
that the covered person receives less in benefits than the covered
person would have received had the complying plan paid or provided
its benefits as the secondary plan and the noncomplying plan paid
or provided its benefits as the primary plan, and applicable state
law allows the right of subrogation, as provided in this section,
then the complying plan must advance to the covered person, or to
an assignee on behalf of the covered person, an amount equal to the
difference. However, the complying plan may not advance more than
the complying plan would have paid had it been the primary plan less
any amount it previously paid for the same expense or service. In
consideration of such advance, the complying plan must be subrogated
to all rights of the covered person against the noncomplying plan,
in accord with applicable subrogation provisions. The advance by the
complying plan must also be without prejudice to any claim it may
have against the noncomplying plan in the absence of subrogation.
(d) A carrier to which this subchapter is applicable
is required to provide reasonable information to a secondary carrier
that is needed to determine the benefits to be paid under this subchapter
seven days after it is requested. Provisions for COB or subrogation
may each be included in health care benefits contracts without compelling
the inclusion or exclusion of the other.
(e) A plan must, in its explanation of benefits provided
to covered persons, include the following language, "If you are covered
by more than one health benefit plan, you should file all your claims
with each plan."
(f) If the plans cannot agree on the order of benefits
within 30 calendar days after the plans have received all of the information
needed to pay the claim, the plans must immediately pay the claim
in equal shares and determine their relative liabilities following
payment, except that no plan will be required to pay more than it
would have paid had it been the primary plan.
(g) Despite the provisions of this subchapter, a carrier
must comply with the prompt pay requirements of Chapter 21, Subchapter
T of this title (relating to Submission of Clean Claims).
(h) A contract may not reduce benefits on the basis
that:
(1) another plan exists and the covered person did
not enroll in that plan;
(2) a person is or could have been covered under another
plan, except with respect to Part B of Medicare; or
(3) a person has elected an option under another plan
providing a lower level of benefits than another option that could
have been elected.
(i) No plan may contain a provision that its benefits
are "always excess" or "always secondary" to any plan as defined in
this subchapter, except in accord with the rules permitted by this
subchapter.
(j) Under the terms of a closed panel plan, benefits
are not payable if the covered person does not use the services of
a closed panel plan health care provider or physician. COB does not
occur if a covered person is enrolled in two or more closed panel
plans and obtains services from a health care provider or physician
in one of the closed panel plans because the other closed panel plan
for which health care providers or physicians were not used has no
liability. However, COB may occur during the plan year when the covered
person receives emergency services that would have been covered by
both plans, and the secondary plan must comply with §3.3508 of
this title (relating to Procedure to be Followed by Secondary Plan)
to determine the amount it should pay for the benefit.
(k) No plan may use a COB provision, or any other provision
that allows it to reduce its benefits based on the existence of any
other coverage its insured or enrollee may have that does not meet
the definition of plan under this subchapter.
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