Coordination of Benefits and Massachusetts Insurance Regulations

11 Apr

If, like me, you have two or more health insurance policies, the order in which the policies pay is determined through a process called coordination of benefits, which in Massachusetts is governed by regulation 211 CMR 38.00 [pdf].

In my case, it gets a little bit complicated because my two policies are from different states. I haven’t looked at California coordination of benefits regulations, but if they differed significantly from the Massachusetts policy it would be possible to have a situation in which neither plan (or both plans) were obligated by their respective state laws to pay as the primary insurer. For now, though, I’m just going to look at the Massachusetts regulation.

A number of my providers incorrectly billed my UC Berkeley Student Health Insurance Plan (SHIP) first. My oral surgeon’s billing person even tried to tell me that I was wrong when I insisted that my parents’ policy should have been billed as the primary insurance. At a glance, it might seem that she is right (211 CMR 38.05):

(3) The benefits of the plan which covers the person as an employee, member or subscriber (that is, other than as a dependent) are determined before those of the plan which covers the person as a dependent.

I’m not exactly covered by my Blue Cross Blue Shield as a dependent but as a former dependent, since the Massachusetts insurance reform allows young people to keep their parents’ insurance for two years after loss of dependency or until age 26 (whichever is first). Still, I’m definitely the subscriber for my SHIP coverage, so it would be tempting to say that this means that my student plan is primary.

However, turning to the definitions section of the regulation (38.03), we find the following (emphasis mine):

Plan: a form of coverage with which coordination is allowed. The definition of plan in the group contract must state the types of coverage which will be considered in applying the COB provision of that contract.


Plan shall not include:
(a) nongroup coverage except for coverage described in 211 CMR 38.03: Plan(d) through (f) above, or when a nongroup plan chooses to coordinate with other nongroup plans;
(b) Medicare or other governmental benefits except to the extent permitted by law;
(c) student accident coverages, Qualifying Student Health Insurance Programs (“QSHIPs”) or other student health plans when designated as “excess only” or “always secondary plan”;
and
(d) a plan under Medicaid, or any other plan when, by law, its benefits are secondary to or in excess of those of any private insurance plan or other nongovernmental plan.

In other words, the coordination of benefits regulations don’t apply to student insurance plans, so long as those plans specifically designate that they are secondary to other coverage (as SHIP does). When the regulation refers to “the plan which covers the person as an employee, member or subscriber,” my coverage under SHIP is not included, because SHIP–although it covers me as a subscriber–is not included in the word “plan.”

It’s easy to see where providers would get this wrong. When I filled out paperwork, I had to specify the name of the policyholder, but I never had to indicate whether the policy was a student health plan. From the information they had, was reasonable (but incorrect) to guess that my SHIP plan was primary.

The coordination of benefits regulations don’t just determine which insurance company has to pay first. They also determine how the benefits are calculated. This brings me to the point that I found myself repeating over the phone with BCBS on Friday (38.05):

(1) The primary plan must pay or provide its benefits as if the secondary plan or plans did not exist. A plan that does not include a coordination of benefits provision may not take the benefits of another plan into account when it determines its benefits. There is one exception: a contract holder’s coverage that is designed to supplement a part of a basic package of benefits may provide that the supplementary coverage shall be excess to any other parts of the plan provided by the contract holder.

The one exception doesn’t seem to apply here, so the regulation requires that BCBS pay its benefits as if there are no secondary plans. That might seem to imply that they can’t take into consideration the fact that another plan has paid benefits (even if that plan was billed incorrectly), since a plan that doesn’t exist certainly doesn’t pay benefits.

However, there is something of a loophole here. As quoted above, the regulation doesn’t state that student plans are secondary plans. It says that, for the purpose of coordination of benefits, they should not be considered plans at all. Thus, BCBS could argue that they aren’t prohibited from taking the existence of my SHIP coverage into consideration because SHIP isn’t included when the word “plan” is used in this paragraph. Such an interpretation would seem to be contrary to the spirit of the regulation, but it may well be consistent with the letter of the law. I hadn’t thought of this when I was on the phone with BCBS, so I guess I’m just lucky that she didn’t know the law and considered it irrelevant.

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