Current through Register Vol. 56, No. 6, March
18, 2024
(a) The general
order of benefit determination shall be as follows:
1. The primary plan shall pay or provide its
benefits as if the secondary plan or plans did not exist.
2. A secondary plan shall take the benefits
of another plan into account only when, under this subchapter, it is secondary
to that other plan.
3. The benefits
of the plan which covers the person as an employee, member, subscriber or
retiree (that is, other than as a dependent) shall be determined before those
of the plan which covers the person as a dependent.
(b) The rules for the order of benefits for a
dependent child when the parents are not separated or divorced are as follows:
1. The benefits of the plan of the parent
whose birthday falls earlier in a year shall be determined before those of the
plan of the parent whose birthday falls later in that year.
2. If both parents have the same birthday,
the benefits of the plan which covered the parent longer shall be determined
before those of the plan which covered the other parent for a shorter period of
time.
3. The word "birthday" refers
only to month and day in a calendar year and not the year in which the person
was born.
4. If the other plan does
not follow the rules described in (b)1, 2 and 3 above, but instead has a rule
based upon the gender of the parent, and if, as a result, the plans do not
agree on the order of benefits, the rule based upon the gender of the parent
shall determine the order of benefits.
(c) If two or more plans cover a person as a
dependent child of divorced or separated parents, benefits for the child shall
be determined according to the provisions of this subsection:
1. The plan of the parent with custody of the
child shall have its benefits determined first;
2. The plan of the spouse of the parent with
the custody of the child shall have its benefits determined next;
3. The plan of the parent not having custody
of the child shall have its benefits determined last.
4. If the specific terms of a court decree
state that one of the parents is responsible for the health care expenses of
the child, and if the plan of that parent is a secondary plan, and further, if
the entity obligated to pay or provide the benefits of the plan of that parent
has actual knowledge of those terms, then the benefits of that plan shall be
determined first. The plan of the other parent shall be considered the
secondary plan. This paragraph shall not apply to any claim determination
period or plan year during which any benefits are actually paid or provided
before the entity that has actual knowledge.
(d) The benefits of a plan which covers a
person as an employee who is neither laid-off nor retired (or as that
employee's dependent) shall be determined before those of a plan which covers
that person as a laid-off or retired employee (or as that employee's
dependent). If the other plan does not have this particular provision, and if,
as a result, the plans do not agree on the order of benefits, this subsection
shall be ignored.
(e) When a person
provided coverage under a right of continuation pursuant to Federal or State
law also is covered under another plan, the plan covering the person as an
employee, member, subscriber or retiree (or as that person's dependent) is
primary and the continuation coverage is secondary unless the other plan does
not contain a provision allowing it to apply this rule and as a result the
plans do not agree on the order of benefits.
(f) If none of the provisions of (c) and (d)
above determines the order of benefits, the benefits of the plan which covered
an employee, member or subscriber longer shall be determined before those of
the plan which covered that person for the shorter term.
1. To determine the time a person has been
covered under a plan, successive plans of a given group shall be treated as one
if the claimant was eligible under the second plan within 24 hours after the
first plan ended.
2. The start of a
new plan shall not include:
i. A change in the
amount or scope of a plan's benefits;
ii. A change in the entity which pays,
provides or administers the plan's benefits; and
iii. A change from one plan to another (such
as, from a single employer plan to that of a multiple employer plan).
3. The claimant's time covered
under a plan shall be measured from the claimant's initial date of coverage
under that plan. If that date is not readily available, the date the claimant
first became a member of the group shall be used as the date from which to
determine the time of the claimant's coverage under the present plan.
