211 CMR 38.08 - Miscellaneous Provisions

Current through Register 1466, April 1, 2022

(1) A Secondary Plan that provides benefits in the form of services may recover the reasonable value of 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. Nothing in 211 CMR 38.08 shall be interpreted to require a Plan to reimburse a covered person in cash for the value of services provided by a Plan which provides benefits in the form of services.
(a) A Plan with order of benefit determination rules which comply with 211 CMR 38.00 ("complying plan") may coordinate its benefits with a Plan which is "excess" or "always secondary" or which uses order of benefit determination rules which are inconsistent with those contained in 211 CMR 38.00 ("non-complying plan") on the following basis:
1. If the complying plan is the Primary Plan, it shall pay or provide its benefits first;
2. If the complying plan is the Secondary Plan, it shall, nevertheless, pay or provide its benefits first, but the amount of the benefits payable shall be determined as if the complying plan were the Secondary Plan. In such a situation, such payment shall be the limit of the complying plan's liability; and
3. If the non-complying 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 shall assume that the benefits of the non-complying plan are identical to its own, and shall pay its benefits accordingly. If, within two years of payment, the complying plan receives information as to the actual benefits of the non-complying plan, it shall adjust payments accordingly.
(b) If the non-complying 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 non-complying plan paid or provided its benefits as the Primary Plan, and governing state law allows the right of subrogation set forth in 211 CMR 38.08(2)(c), then the complying plan shall advance to the covered person or on behalf of the covered person an amount equal to the difference.
(c) In no event shall the complying plan 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 the advance, the complying plan shall be subrogated to all rights of the covered person against the non-complying plan. The advance by the complying plan shall also be without prejudice to any Claim it may have against a non-complying plan in the absence of subrogation.
(3) COB Differs from Subrogation. Provisions for one may be included in health care benefits contracts without compelling the inclusion or exclusion of the other.
(4) 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 shall immediately pay the Claim in equal shares and determine their relative liabilities following payment, except that no Plan shall be required to pay more than it would have paid had it been the Primary Plan.


211 CMR 38.08
Amended by Mass Register Issue 1323, eff. 10/7/2016.

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