Section 38.05 - Order of Benefit DeterminationEach Plan determines its order of benefits using the first of 211 CMR 38.05 that applies:
(1) Medical Payments Coverage and PIP Coverage in Motor Vehicle Insurance Policies (a) If a person who has a Health Benefit Plan and a motor vehicle insurance policy incurs expenses or requires services as a result of an accident with a motor vehicle: Personal Injury Protection, as defined by M.G.L. c. 90, § 34A, shall always be primary and pay the first $2,000 of expenses as allowed under said statute. PIP shall thereafter be secondary to any such Health Benefit Plan(s) and shall coordinate with the Health Benefit Plan(s) pursuant to M.G.L. c. 90, §§ 34A and 34M.
(b) Medical Payments Coverage under a motor vehicle insurance policy shall always be secondary to and in excess of any Health Benefit Plan or Personal Injury Protection, as defined under 211 CMR 38.00.(2)Non-dependent or Dependent. (a) Subject to the provisions of 211 CMR 38.05(2)(b), the Plan that covers the person other than as a dependent - for example, as an employee, member, subscriber (that is, other than as a dependent), Policyholder or retiree - is the Primary Plan and the Plan that covers the person as a dependent is the Secondary Plan.(b)1. If the person is a Medicare beneficiary, and, as a result of the provisions of Title XVIII of the Social Security Act and implementing regulations, Medicare is: a. Secondary to the Plan covering the person as dependent; andb. Primary to the Plan covering the person as other than a dependent (e.g., retired employee),2. Then the order of benefits is reversed so that the Plan covering the person as an employee, member, subscriber, policyholder or retiree is the Secondary Plan and the other Plan covering the person as a dependent is the Primary Plan.(3)Dependent Child Covered Under More Than One Plan. Unless there is a court decree stating otherwise, Plans covering a dependent child shall determine the order of benefits as follows:(a) If two or more Plans cover a dependent child whose parents are married or are living together, whether or not they have ever been married, then,: 1. The Plan of the parent whose Birthday falls earlier in the calendar year is the Primary Plan;2. 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 are not living together, whether or not they have ever been married:1. If the specific terms of a court decree state 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. If the parent with responsibility has no health care coverage for the dependent child's health care expenses, but that parent's spouse does, that parent's spouse's Plan is the Primary Plan. 211 CMR 38.05(3)(b)1. does not apply with respect to any plan year during which any benefits are actually paid or provided before the entity has the actual knowledge of the court decree provisions;2. 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 211 CMR 38.05(3)(a) shall determine the order of benefits;3. If the specific terms of a court decree state that the parents shall share joint custody, without stating that one of the parents is responsible for the health care expenses or health care coverage of the dependent child, the provisions of 211 CMR 38.05(3)(a) shall determine the order of benefits; or4. If there is no court decree allocating responsibility for the child's health care expenses or health care coverage, the order of benefits for the child are as follows: a. The Plan covering the Custodial Parent;b. The Plan covering the Custodial Parent's spouse;c. The Plan covering the non-Custodial Parent; and thend. The Plan covering the non-Custodial Parent's spouse.(c) For a dependent child covered under more than one Plan of individuals who are not the parents of the child, the order of benefits shall be determined, as applicable, under 211 CMR 38.05(3)(a) or (b) as if those individuals were parents of the child.(d)1. For a dependent child who has coverage under either or both parents' Plans and also has his or her own coverage as a dependent under a spouse's Plan, 211 CMR 38.05(6) applies.2. In the event the dependent child's coverage under the spouse's plan began on the same date as the dependent child's coverage under either or both parents' Plans, the order of benefits shall be determined by applying the birthday rule in 211 CMR 38.05(3)(a) to the dependent child's parent(s) and the dependent's spouse. (4)Active Employee or Retired or Laid-off Employee. (a) The Plan that covers a person as an active employee that is an employee who is neither laid off nor retired or as a dependent of an active employee is the Primary Plan. The Plan covering that same person as a laid off or retired employee or as a dependent of a laid-off or retired employee is the Secondary Plan.(b) If the other Plan does not have 211 CMR 38.05(4), and if, as a result, the Plans do not agree on the order of benefits, 211 CMR 38.05(4) is ignored.(c)211 CMR 38.05(4) does not apply if 211 CMR 38.05(2) can determine the order of benefits.(5)COBRA or State Continuation Coverage. (a) If a person whose coverage is provided pursuant to COBRA or under a right of continuation pursuant to 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 Plan covering that same person pursuant to COBRA or under a right of continuation pursuant to state or other federal law is the Secondary Plan.(b) If the other Plan does not have 211 CMR 38.05(5), and if, as a result, the Plans do not agree on the order of benefits, 211 CMR 38.05(5) is ignored.(c)211 CMR 38.05(5) does not apply if 211 CMR 38.05(2) can determine the order of benefits.(6)Longer or Shorter Length of Coverage. (a) If none of 211 CMR 38.05(1) through (5) determines the order of benefits, the Plan that covered the person for a longer period of time is the Primary Plan and the Plan that covered the person for the shorter period of time is the Secondary Plan.(b) To determine the length of time a person has been covered under a Plan, two successive Plans shall be treated as one if the covered person was eligible under the second Plan within 24 hours after coverage under the first Plan ended.(c) The start of a new Plan does not include: 1. A change in the amount or scope of a Plan's benefits;2. A change in the entity which pays, provides or administers the Plan's benefits;3. A change from one type of Plan to another (such as, from a single employer Plan to that of a multiple employer Plan).(d) The person's length of time covered under a Plan is measured from the person's first date of coverage under that Plan. If that date is not readily available for a group Plan, the date the person first became a member of the group shall be used as the date from which to determine the length of time the person's coverage under the present Plan has been in force.(7) If none of 211 CMR 38.05(1) through (6) determines the order of benefits, the Allowable Expenses shall be shared equally between the Plans.Amended by Mass Register Issue 1323, eff. 10/7/2016.