760 IAC 1-38.1-19 Excess and other nonconforming provisions

Sec. 19. (a) A plan with order of benefit determination provisions that comply with this rule (complying plan) may coordinate its benefits with a plan that is "excess" or "always secondary", or that uses order of benefit determination provisions that are inconsistent with those contained in this rule (noncomplying plan) on the following basis: (1) If the complying plan is the: (A) primary plan, it shall pay or provide its benefits on a primary basis; or (B) 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, the payment shall be the limit of the complying plan's liability. (2) If the noncomplying 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 do the following: (A) Assume that the benefits of the noncomplying plan are identical to its own. (B) Pay its benefits accordingly. If, within two (2) years of payment, the complying plan receives information as to the actual benefits of the noncomplying plan, it shall adjust payment accordingly. (b) If the noncomplying plan: (1) reduces its benefits so that the covered person receives less in benefits than he or she would have received had the complying plan paid or provided its benefits as the secondary plan; and (2) paid or provided its benefits as the primary plan; and governing state law allows the right of subrogation under section 21 of this rule, then the complying plan shall advance to 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 such advance, the complying plan shall be subrogated to all rights of the employee, subscriber, or member against the noncomplying plan. Such advance by the complying plan shall also be without prejudice to any claim it may have against the noncomplying plan in the absence of the subrogation.