191—38.19 (509,514) Effective date for existing contracts.
	 38.19(1) A contract that provides health care benefits and that was issued before January 25, 2006, shall be brought into compliance with this division by the latest of:
	  a.   	 The next anniversary date or renewal date of the contract; or
	  b.   	 Twelve months following January 25, 2006; or
	  c.   	 The expiration of any applicable collectively bargained contract pursuant to which it was written.
	 38.19(2) For the transition period between the adoption of this division and the time frame for which plans are to be in compliance pursuant to subrule 38.19(1), a plan that is subject to the COB requirements in division I shall not be considered a noncomplying plan by a plan subject to the new COB requirements in division II. If there is a conflict between the COB requirements in division I and the new COB requirements in division II, the COB requirements in division I shall apply.
APPENDIX A    MODEL COB CONTRACT PROVISIONS
COORDINATION OF THIS CONTRACT’S BENEFITS WITH OTHER BENEFITS
The Coordination of Benefits (COB) provision applies when a person has health care coverage under more than one Plan. Plan is defined below.
The order of benefit determination rules govern the order in which each Plan will pay a claim for benefits. The Plan that pays first is called the Primary plan. The Primary plan must pay benefits in accordance with its policy terms without regard to the possibility that another Plan may cover some expenses. The Plan that pays after the Primary plan is the Secondary plan. The Secondary plan may reduce the benefits it pays so that payment from all Plans does not exceed 100% of the total Allowable expense.
DEFINITIONS
A. 	A Plan is any of the following that provides benefits or services for medical or dental care or treatment. If separate contracts are used to provide coordinated coverage for members of a group, the separate contracts are considered parts of the same plan and there is no COB among those separate contracts.
(1) 	 Plan includes: group and nongroup insurance contracts, health maintenance organization (HMO) contracts, closed panel plans or other forms of group or group-type coverage (whether insured or uninsured); medical care components of long-term care contracts, such as skilled nursing care; medical benefits under group or individual automobile contracts; and Medicare or any other federal governmental plan, as permitted by law.
(2) 	 Plan does not include: hospital indemnity coverage or other fixed indemnity coverage; accident-only coverage; specified disease or specified accident coverage; limited benefit health coverage, as defined by state law; school accident-type coverage; benefits for nonmedical components of long-term care policies; Medicare supplement policies; Medicaid policies; or coverage under other federal governmental plans, unless permitted by law.
Each contract for coverage under (1) or (2) is a separate Plan. If a Plan has two parts and COB rules apply only to one of the two, each of the parts is treated as a separate Plan.
B. 	 This plan means, in a COB provision, the part of the contract providing the health care benefits to which the COB provision applies and which may be reduced because of the benefits of other plans. Any other part of the contract providing health care benefits is separate from this plan. A contract may apply one COB provision to certain benefits, such as dental benefits, coordinating only with similar benefits, and may apply another COB provision to coordinate other benefits.
C. 	The order of benefit determination rules determine whether This plan is a Primary plan or Secondary plan when the person has health care coverage under more than one Plan.
When This plan is primary, it determines payment for its benefits first before those of any other Plan without considering any other Plan’s benefits. When This plan is secondary, it determines its benefits after those of another Plan and may reduce the benefits it pays so that all Plan benefits do not exceed 100% of the total Allowable expense.
D. 	 Allowable expense is a health care expense, including deductibles, coinsurance and copayments, that is covered at least in part by any Plan covering the person. When a Plan provides benefits in the form of services, the reasonable cash value of each service will be considered an Allowable expense and a benefit paid. An expense that is not covered by any Plan covering the person is not an Allowable expense. In addition, any expense that a provider by law or in accordance with a contractual agreement is prohibited from charging a covered person is not an Allowable expense.
The following are examples of expenses that are not Allowable expenses:
(1) 	The difference between the cost of a semiprivate hospital room and a private hospital room is not an Allowable expense, unless one of the Plans provides coverage for private hospital room expenses.
(2) 	If a person is covered by 2 or more Plans that compute their benefit payments on the basis of usual and customary fees or relative value schedule reimbursement methodology or other similar reimbursement methodology, any amount in excess of the highest reimbursement amount for a specific benefit is not an Allowable expense.
(3) 	If a person is covered by 2 or more Plans that provide benefits or services on the basis of negotiated fees, an amount in excess of the highest of the negotiated fees is not an Allowable expense.
(4) 	If a person is covered by one Plan that calculates its benefits or services on the basis of usual and customary fees or relative value schedule reimbursement methodology or other similar reimbursement methodology and by another Plan that provides its benefits or services on the basis of negotiated fees, the Primary plan’s payment arrangement shall be the Allowable expense for all Plans. However, if the provider has contracted with the Secondary plan to provide the benefit or service for a specific negotiated fee or payment amount that is different than the Primary plan’s payment arrangement and if the provider’s contract permits, the negotiated fee or payment shall be the Allowable expense used by the Secondary plan to determine its benefits.
(5) 	The amount of any benefit reduction by the Primary plan because a covered person has failed to comply with the Plan provisions is not an Allowable expense. Examples of these types of plan provisions include second surgical opinions, precertification of admissions, and preferred provider arrangements.
E. 	 Closed panel plan is a Plan that provides health care benefits to covered persons primarily in the form of services through a panel of providers that have contracted with or are employed by the Plan, and that excludes coverage for services provided by other providers, except in cases of emergency or referral by a panel member.
F. 	 Custodial parent is the parent awarded custody by a court decree or, in the absence of a court decree, is the parent with whom the child resides more than one-half of the calendar year excluding any temporary visitation.
ORDER OF BENEFIT DETERMINATION RULES
When a person is covered by two or more Plans, the rules for determining the order of benefit payments are as follows:
A. 	The Primary plan pays or provides its benefits according to its terms of coverage and without regard to the benefits of any other Plan.
B. 	(1) 	Except as provided in Paragraph (2), a Plan that does not contain a coordination of benefits
provision that is consistent with this regulation is always primary unless the provisions of both Plans state that the complying plan is primary.
(2) 	Coverage that is obtained by virtue of membership in a group that is designed to supplement a part of a basic package of benefits and provides that this supplementary coverage shall 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.
C. 	A Plan may consider the benefits paid or provided by another Plan in calculating payment of its benefits only when it is secondary to that other Plan.
D. 	Each Plan determines its order of benefits using the first of the following rules that apply:
(1) 	Nondependent or Dependent. The Plan that covers the person other than as a dependent, for example as an employee, member, policyholder, subscriber or retiree is the Primary  plan and the Plan that covers the person as a dependent is the Secondary plan. However, if the person is a Medicare beneficiary and, as a result of federal law, Medicare is secondary to the Plan covering the person as a dependent; and primary to the Plan covering the person as other than a dependent (e.g., a retired employee); then the order of benefits between the two Plans is reversed so that the Plan covering the person as an employee, member, policyholder, subscriber or retiree is the Secondary plan and the other Plan is the Primary plan.
(2) 	Dependent Child Covered Under More Than One Plan. Unless there is a court decree stating otherwise, when a dependent child is covered by more than one Plan the order of benefits is determined as follows:
(a) 	For a dependent child whose parents are married or are living together, whether or not they have ever been married:
•	The Plan of the parent whose birthday falls earlier in the calendar year is the Primary
plan; or
•	If both parents have the same birthday, the Plan that has covered the parent the longest
is the Primary plan
(b) 	For a dependent child whose parents are divorced or separated or not living together, whether or not they have ever been married:
(i) 	If a court decree 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. This rule applies to plan years
commencing after the Plan is given notice of the court decree;
(ii)	If a court decree states that both parents are responsible for the dependent child’s health care expenses or health care coverage, the provisions of Subparagraph (a) above shall determine the order of benefits;
(iii) If a court decree 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) above shall determine the order of benefits; or
(iv) If there is no court decree allocating responsibility for the dependent child’s health care expenses or health care coverage, the order of benefits for the child is as follows:
•	The Plan covering the Custodial parent;
•	The Plan covering the spouse of the Custodial parent;
•	The Plan covering the Noncustodial parent; and then
•	The Plan covering the spouse of the Noncustodial parent.
(c) 	For a dependent child covered under more than one Plan of individuals who are the parents of the child, the provisions of Subparagraph (a) or (b) above shall determine the order of benefits as if those individuals were the parents of the child.
(3) 	Active Employee or Retired or Laid-Off Employee. The Plan that covers a person as an active employee, that is, an employee who is neither laid off nor retired, is the Primary plan. The Plan covering that same person as a retired or laid-off employee is the Secondary plan. The same would hold true if a person is a dependent of an active employee and that same person is a dependent of a retired or laid-off employee. If the other Plan does not have this rule, and as a result, the Plans do not agree on the order of benefits, this rule is ignored. This rule does not apply if the rule labeled D(1) can determine the order of benefits.
(4) 	COBRA or State Continuation Coverage. If a person whose coverage is provided pursuant to COBRA or under a right of continuation provided by 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 COBRA or state or other federal continuation coverage is the Secondary plan. If the other Plan does not have this rule, and as a result, the Plans do not agree on the order of benefits, this rule is ignored. This rule does not apply if the rule labeled D(1) can determine the order of benefits.
(5) 	Longer or Shorter Length of Coverage. The Plan that covered the person as an employee, member, policyholder, subscriber or retiree longer is the Primary plan and the Plan that covered the person the shorter period of time is the Secondary plan.
(6) 	If the preceding rules do not determine the order of benefits, the Allowable expenses shall be shared equally between the Plans meeting the definition of Plan. In addition, This plan will not pay more than it would have paid had it been the Primary plan.
EFFECT ON THE BENEFITS OF THIS PLAN
A. 	When This plan is secondary, it may reduce its benefits so that the total benefits paid or provided by all Plans during a plan year are not more than the total Allowable expenses. In determining the amount to be paid for any claim, the Secondary plan will calculate the benefits it would have paid in the absence of other health care coverage and apply that calculated amount to any Allowable expense under its Plan that is unpaid by the Primary plan. The Secondary plan may then reduce its payment by the amount so that, when combined with the amount paid by the Primary plan, the total benefits paid or provided by all Plans for the claim do not exceed the total Allowable expense for that claim. In addition, the Secondary plan shall credit to its plan deductible any amounts it would have credited to its deductible in the absence of other health care coverage.
B. 	If a covered person is enrolled in two or more Closed panel plans and if, for any reason, including the provision of service by a non-panel provider, benefits are not payable by one Closed panel plan, COB shall not apply between that Plan and other Closed panel plans.
RIGHT TO RECEIVE AND RELEASE NEEDED INFORMATION
Certain facts about health care coverage and services are needed to apply these COB rules and to determine benefits payable under This plan and other Plans. [Organization responsibility for COB administration] may get the facts it needs from or give them to other organizations or persons for the purpose of applying these rules and determining benefits payable under This plan and other Plans covering the person claiming benefits. [Organization responsibility for COB administration] need not tell, or get the consent of, any person to do this. Each person claiming benefits under This plan must give [Organization responsibility for COB administration] any facts it needs to apply those rules and determine benefits payable.
FACILITY OF PAYMENT
A payment made under another Plan may include an amount that should have been paid under This plan. If it does, [Organization responsibility for COB administration] may pay that amount to the organization that made that payment. That amount will then be treated as though it were a benefit paid under This plan. [Organization responsibility for COB administration] will not have to pay that amount again. The term “payment made” includes providing benefits in the form of services, in which case “payment made” means the reasonable cash value of the benefits provided in the form of services.
RIGHT OF RECOVERY
If the amount of the payments made by [Organization responsibility for COB administration] is more than it should have paid under this COB provision, it may recover the excess from one or more of the persons it has paid or for whom it has paid; or any other person or organization that may be responsible for the benefits or services provided for the covered person. The “amount of the payments made” includes the reasonable cash value of any benefits provided in the form of services.
APPENDIX B    CONSUMER EXPLANATORY BOOKLET
COORDINATION OF BENEFITS

IMPORTANT NOTICE	
This is a summary of only a few of the provisions of your health plan to help you understand coordination of benefits, which can be very complicated. This is not a complete description of all of the coordination rules and procedures, and does not change or replace the language contained in your insurance contract, which determines your benefits.	
Double Coverage
It is common for family members to be covered by more than one health care plan. This happens, for example, when a husband and wife both work and choose to have family coverage through both employers.
When you are covered by more than one health plan, state law permits your insurers to follow a procedure called “coordination of benefits” to determine how much each should pay when you have a claim. The goal is to make sure that the combined payments of all plans do not add up to more than your covered health care expenses.
Coordination of benefits (COB) is complicated, and covers a wide variety of circumstances. This is only an outline of some of the most common ones. If your situation is not described, read your evidence of coverage or contact your state insurance department.
Primary or Secondary?
You will be asked to identify all the plans that cover members of your family. We need this information to determine whether we are the “primary” or “secondary” benefit payer. The primary plan always pays first when you have a claim.
Any plan that does not contain your state’s COB rules will always be primary.
When This Plan Is Primary
If you or a family member are covered under another plan in addition to this one, we will be primary when:
Your Own Expenses
	  ● 	 The claim is for your own health care expenses, unless you are covered by Medicare and both you and your spouse are retired.
Your Spouse’s Expenses
	  ● 	 The claim is for your spouse, who is covered by Medicare, and you are not both retired.
Your Child’s Expenses
	•	The claim is for the health care expenses of your child who is covered by this plan and
•	You are married and your birthday is earlier in the year than your spouse’s or you are living
with another individual, regardless of whether or not you have ever been married to that
individual, and your birthday is earlier than that other individual’s birthday. This is known
as the “birthday rule”;
or
•	You are separated or divorced and you have informed us of a court decree that makes you
responsible for the child’s health care expenses;
or
•	There is no court decree, but you have custody of the child.
Other Situations
We will be primary when any other provisions of state or federal law require us to be.
How We Pay Claims When We Are Primary
When we are the primary plan, we will pay the benefits in accordance with the terms of your contract, just as if you had no other health care coverage under any other plan.
How We Pay Claims When We Are Secondary
We will be secondary whenever the rules do not require us to be primary.
How We Pay Claims When We Are Secondary
When we are the secondary plan, we do not pay until after the primary plan has paid its benefits. We will then pay part or all of the allowable expenses left unpaid, as explained below. An “allowable expense” is a health care expense covered by one of the plans, including copayments, coinsurance and deductibles.
•	If there is a difference between the amount the plans allow, we will base our payment on
the higher amount. However, if the primary plan has a contract with the provider, our combined
payments will not be more than the amount called for in our contract or the amount called for in
the contract of the primary plan, whichever is higher. Health maintenance organizations (HMOs)
and preferred provider organizations (PPOs) usually have contracts with their providers.
•	We will determine our payment by subtracting the amount the primary plan paid from the
amount we would have paid if we had been primary. We may reduce our payment by any
amount so that, when combined with the amount paid by the primary plan, the total benefits paid
do not exceed the total allowable expense for your claim. We will credit any amount we would
have paid in the absence of your other health care coverage toward our own plan deductible.
•	If the primary plan covers similar kinds of health care expenses, but allows expenses that we do
not cover, we may pay for those expenses.
•	We will not pay an amount the primary plan did not cover because you did not follow its rules
and procedures. For example, if your plan has reduced its benefit because you did not obtain
precertification, as required by that plan, we will not pay the amount of the reduction, because
it is not an allowable expense.
Questions About Coordination of Benefits?
Contact Your State Insurance Department