www.njchiropractors.com I 7 e e Q&A Legislative Update tor’s UPDATE Legal Q&A Q Can Medicare be the primary responsible insurance for a no-fault claim where the patient has chosen the health insurance primary option on their auto insurance policy? A No. The following is the PIP regulation which indicates that Medicare and Medicaid cannot be primary as a health insurance option on a PIP policy: N.J.A.C. 11:3-14.5 provides: (a) Pursuant to N.J.S.A. 39:6A-4.3, for policies issued or renewed on or after January 1, 1991, an insurer shall provide the option that other health insurance coverage or benefits of the insured, including health care services provided by a health maintenance organization and any coverage or benefits provided under any federal or state program, are the primary coverage for medical expense benefits for personal injury protection coverage; provided, however, that this option shall not apply to any coverage or benefits provided pursuant to Medicare or Medicaid. Q If I submit a no-fault claim to a major medical insurance carrier on a health insurance primary policy, what type of denial do I need to pursue payment from no-fault as the secondary payor? A Pursuant to N.J.S.A. 39:6A4.3(b), if health insurance coverage or benefits are primary, an insurance insurer providing medical expense benefits under personal injury protection coverage shall be liable for reasonable medical expenses not covered by the health insurance coverage or benefits up to the limit of the medical expense benefits coverage. The PIP plan shall provide benefits for allowable expenses remaining uncovered after all health benefit plans for which the insured is eligible have paid benefits towards those allowable expenses. N.J.A.C.11:3-37.6(c). The health care primary regulations do not address or speak to the type or qualification of denial, administrative, medical necessity, non-covered service, lack of authorization or other. In rudimentary terms, the regulations speak to what was paid or denied by the health insurance carrier, and that if that amount is less than the fee schedule allowance, the PIP carrier is liable for the difference. That includes the situation where nothing was paid, regardless of the reason for the denial, as zero is less than the fee schedule amount; therefore, the secondary carrier is responsible for the fee schedule allowed reimbursement rate. Q If the owner of a private passenger vehicle involved in an accident chose the health insurance primary option on their no-fault policy, does this election also apply to passengers injured in that car? A No, except if the passenger is a resident relative of the car owner. N.J.S.A. 39:6A-4.3 (d) provides that automobile insurers shall provide PIP coverage options including other health insurance coverage or benefits as primary coverage in regard to medical expense benefits. N.J.S.A. 39:6A-4.3(f) provides in pertinent part: Any named insured who chooses the option provided by subsection d. of this section shall provide proof that he and members of his family residing in his household are covered by health insurance coverage or benefits in a manner and to an extent approved by the commissioner... An option elected by the named insured in accordance with this section shall apply only to the named insured and any resident relative in the named insured’s household who is not a named insured under another automobile insurance policy, and not to any other person eligible for personal injury protection benefits required to be provided in accordance with section 4 of P.L. 1972, c. 70 (C.39:6A-4). Jeffrey Randolph, Esq. (the author of these two articles) is an independent person of the ANJC and his views are not authorized, sponsored, or otherwise approved by the ANJC. The information provided is for general guidance on matters of interest only and may not take into account particular facts relevant to your individual situation. The application and impact of laws and health care can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in these materials. Accordingly, the information you receive is provided with the understanding that the author and the ANJC are not herein engaged in rendering legal, accounting, tax, health care or other professional advice and services nor are they providing specific advice with regard to your practice, the treatment of any specific illness, disease, deformity or condition, or any other matter that affects trade, commerce, or legal rights of others. As such, this article should not be used as a substitute for consultation with professional accounting, tax, legal, health care, or other competent advisers. Before making any decision or taking any action, you should consult an appropriately trained professional. By Jeffrey Randolph ANJC Legal Counsel