December 12, 2008
The Chair of the Workers' Compensation Board issues the following guidance regarding the Health Insurer Match Program (HIMP). HIMP, which was established in 1993, is codified at New York Workers' Compensation Law (WCL) §§ 13(d) and 13(h). The rules governing HIMP are located in Subparts 325-5 and 325-6 of 12 New York Codes, Rules and Regulations (NYCRR). This guidance interprets the existing HIMP regulations as of December 12, 2008.
HIMP provides a mechanism for health insurers and health benefit plans (collectively, "health insurers") to seek reimbursement from employers and workers' compensation insurance carriers (collectively, "carriers") for "payments for medical and/or hospital services for or on behalf of an injured employee…if the board determines that the [workers' compensation] claim is compensable." WCL § 13(d)(1). Health insurers may submit information regarding payments on behalf of their members, including name, social security number, gender, date of birth, and treatment date, in electronic form to the Workers' Compensation Board ("Board") in order to identify injured workers who have filed workers' compensation claims. 12 NYCRR § 325-5.6(a). The Board then notifies the health insurer of those members for which there is a full or partial match, depending on which information fields are identical in both the health insurer's and the Board's records. In the event of a "full match," the health insurer is added as a party of interest who receives notice of events in the case. 12 NYCRR § 325-5.6(b)(1). Once the Board determines that the claim is compensable – i.e. the Board determines that there was an accident or occupational disease, notice, and causal relationship between the injury and accident (ANCR or ODNCR) – the health insurer gains access to the Board's electronic case files and can submit for reimbursement payments for any treatment that is causally related to the compensable work injury. WCL § 13(d)(1). Reimbursement shall be at the lesser of what the health insurer actually paid and the Board's fee schedule for such treatment. WCL§ 13(d)(1). Disputes over claims for reimbursement are subject to mandatory arbitration, which is presently administered by the American Arbitration Association (AAA). WCL § 13(h)(3).
Statute of Limitations
To be timely a health insurer must file a reimbursement claim within three (3) years "of the date of payment for services rendered by the health care provider …." WCL § 13(d)(2); see also WCL § 13(h)(3); 12 NYCRR § 325-6.2(b). The health insurer can file its claim by submitting the member's data to the Board for a computer search or by submitting Form HIMP-1 requesting reimbursement directly to the carrier. 12 NYCRR § 325-6.2(b). The date of filing, for statute of limitations purposes, is the earlier of the date upon which the Board receives the data or the date that Form HIMP-1 is actually received by the carrier. 12 NYCRR § 325-6.2(b).
The regulations provide additional time limitations for submitting the reimbursement claim to the carrier if the health insurer first achieves a partial match rather than a full match. If the health insurer first receives a partial match, it must establish a full match within two years from the date it receives notice of the existence of a partial match, unless the Board extends the time period upon a showing of good cause. 12 NYCRR § 325-6.3(a)(2). The health insurer must also show the existence of ANCR within the same period for achieving a full match unless the case is established on or after the date 90 days before the expiration of the time period for determining a full match. Id. If ANCR is established more than 90 days before the expiration of the two year timeframe or an extended timeframe, the health insurer must submit the reimbursement claim to the carrier within six months after the health insurer has been notified of a full match and ANCR, whichever is later. Id. If ANCR is established within 90 days of or after the expiration of the two year timeframe or an extended timeframe, the health insurer must submit the reimbursement claim to the carrier within six months after the expiration of the timeframe. Id. The health insurer may supplement its reimbursement request with proof of ANCR, if it is not available at the time of its filing with the health insurer. Id.
The six month filing requirement does not apply if the health insurer initially received a full match or never submitted the claim to the Board for match.
The six month rule was established on the assumption that health insurers would investigate partial matches in order to convert them into full matches that could be submitted. The regulations provided additional time for the health insurer to perform that investigation, but established limits so that the investigation would not last indefinitely. No additional filing requirement exists for full matches because it is presumed that the health insurer will quickly submit the claims for reimbursement. In practice, most health insurers ignore partial matches because of the difficulty of obtaining information to convert a claim into a full match. Instead, the health insurer typically submits subsequent treatments, which may include additional information (e.g. Social Security number) that was previously missing, for which it may achieve a full match. The prior treatment for which the health insurer received a partial match may be submitted if it is determined that the particular treatment is reimbursable. The question arises, however, whether the existence of a partial match earlier in time automatically triggers the six month rule for all treatments associated with a single workers' compensation claim.
The scope of the six month filing rule is unclear from the regulations and statute. It could either apply to all treatments submitted for the same workers' compensation claim to which the insurer initially received a partial match or it could apply to only the particular treatment date that was submitted to the Board.
If the six month filing rule applies to all treatments, it would completely bar reimbursement for any treatment that was paid more than six months after full match and ANCR. Since treatment can continue for months or years after the finding of ANCR, this potentially renders significant amounts of treatment non-reimbursable indirectly by virtue of the receipt of a partial match. There is no indication of an intent to bar reimbursement for treatments that occur more than six months after full match and ANCR since the same treatment would be fully reimbursable if the health insurer never received a partial match. This result is absurd and was not intended by the Board.
If the six month filing rule applies only to the particular treatment date submitted to the Board, it would suggest that each separate treatment date must be submitted to the Board (or the carrier) within three years to satisfy the statute of limitations. While a health insurer can submit to the carrier on a single Form HIMP-1 all additional treatments on a claim for which it has already received a full match, it cannot do so until ANCR is established¹. If this exceeds three years from the date of treatment, then reimbursement for the particular treatment would be barred. Such a rule would needlessly encourage submission to the Board of multiple treatments for the same member in order to preserve statute of limitations. Such oversubmission is inconsistent with efficient and fair administration of the HIMP program.
After careful consideration of the statutory and regulatory language and the competing policy considerations, the Board adopts the following interpretation. Any reimbursement claim that is presented to the carrier within three years of the date of payment is timely, notwithstanding that one or more treatments for the workers' compensation claim may have elicited a partial match. If a treatment is first submitted to the carrier more than three years after the date of payment, the health insurer must have submitted the member's information to the Board for a match within three years of the date of payment. If the health insurer initially received a partial match to the same workers' compensation claim, the six month rule applies to those treatments submitted to the carrier more than three years after their date of payment.
The six month rule is satisfied if the health insurer received a full match within two years of the date of partial match (or an extended period designated by the Board) and the treatment was submitted to the carrier within six months of the date of full match and ANCR, whichever is later. If ANCR was established less than 90 days from or after the expiration of the two year (or extended) time period, the health insurer has until six months after the expiration of the two year (or extended) time period from partial match to submit the reimbursement to the carrier.
If there is a full match and no partial match associated with the reimbursement claim, all treatments associated with the claim are considered timely as long as the treatment eliciting a full match was submitted to the Board within the three year statute of limitations.
The following examples illustrate the application of the six month rule:
Health Insurer (HI) submitted Claimant's (C) treatment paid on June 1, 2004 to the Board on October 15, 2004 and received a partial match on October 31, 2004. HI submitted C's treatment paid on October 1, 2004 to the Board on March 15, 2005 and received a full match to C's workers' compensation claim (date of accident: September 1, 2004) on March 30, 2005. The Board established ANCR on February 1, 2006 and notified the HI on February 5, 2006. HI submitted Form HIMP-1 to the workers' compensation carrier (WCC), consisting of 15 treatments dated September 1, 2004 through September 1, 2007, on March 1, 2008. The following treatments would be timely:
- Partial match: October 31, 2004
- Full match: March 30, 2005
- ANCR notification: February 1, 2006
- HIMP-1 submitted: March 1, 2008
- Treatments paid between March 1, 2005 and March 1, 2008 are timely because they are submitted to WCC within 3 years of the date of payment;
- Treatments paid between June 1, 2004 and March 1, 2005 are untimely because HI failed to satisfy the 6 month rule. There are two parts to the analysis:
- First, HI properly converted the partial match (October 31, 2004) to a full match (March 30, 2005) within two years.
- Second, ANCR was established within two years of the partial match, but HI failed to submit Form HIMP-1 within six months from receiving notice of full match and ANCR, whichever is later (i.e. August 5, 2006).
- Partial match: January 1, 2005
- Full match: February 1, 2006
- ANCR notification: March 1, 2008
- HIMP-1 submitted: June 1, 2008
- Treatments paid between June 1, 2005-June 1, 2008 are timely because they are submitted to WCC within 3 years of the date of payment;
- Treatments paid before June 1, 2005 are untimely because HI failed to satisfy the 6 month rule.
- First, HI properly converted the partial match to a full match within two years.
- Second, ANCR was established after expiration of two year timeframe from partial match. However, HI failed to submit Form HIMP-1 (without proof of ANCR) within 6 months of expiration of two year timeframe (i.e. July 1, 2007).
- Partial match: January 1, 2006
- Full match: February 1, 2007
- ANCR: November 1, 2007
- HIMP-1 submitted: March 1, 2008
- Treatments paid between March 1, 2005 - March 1, 2008 are timely because they are submitted to WCC within 3 years of the date of payment;
- Treatments paid before March 1, 2005 are timely because HI complied with the 6 month rule.
- First, HI properly converted the partial match to a full match within two years.
- Second, ANCR was established within 90 days of two year timeframe from partial match. Therefore, HI had until six months after expiration of two year timeframe (i.e. July 1, 2008) to submit Form HIMP-1.
This is the fairest and most workable interpretation of the existing regulations. The additional time frames associated with converting a partial match into a full match were originally intended to extend the time for a health insurer who receives a partial match that it cannot immediately submit to the carrier. To interpret the rule to require submission of reimbursements in less than the three years provided for by the statute is unfair and was not intended.
At the same time, however, health insurers have been operating under the assumption that obtaining a single full match between a member and a workers' compensation claim is sufficient to satisfy the statute of limitations for all of the treatments associated with that workers' compensation claim. The Board's Form HIMP-1 promotes this view since it provides a single box each for date of partial and full match despite the fact that insurers regularly submit multiple treatments on a single form. The Board's rule makes it possible for arbitrators to determine timeliness from the face of Form HIMP-1. However, this is not true if the health insurer included match dates that are associated with a different workers' compensation claim². Under such circumstances, the health insurer should be permitted to provide additional information regarding the appropriate match dates associated with claims submitted to the carrier and/or submitted to arbitration (but not yet decided) based on this subject number.
The Board's interpretation allows for a single match to cover all treatments associated with the claim, while also eliminating the unintended application of the partial match rule to otherwise timely claims.
Health Insurer's Completion of Form HIMP-1
Form HIMP-1 contains boxes for the date of full match and partial match. If a health insurer has submitted the same individual's information to the Board more than once, the health insurer may have received multiple full and/or partial match dates. These multiple dates may correspond to one or more workers' compensation claims. The health insurer should submit the earliest applicable match date for each box, provided however that it should include only match dates that correspond to the same individual and workers' compensation claim for which reimbursement is being sought.
The request for reimbursement box refers to the date on which the health insurer submitted the individual's information to the Board for a match. If a health insurer has submitted the same individual's information to the Board more than once, it should submit the earliest applicable date.
Applicability of HIMP to Accepted or Established Claims
The HIMP process is applicable to all workers' compensation claims that are determined to be compensable (i.e. established ANCR or ODNCR by the Board), regardless of whether the carrier initially accepted or controverted the claim. There is nothing in the statute or existing regulations that limits reimbursement by carriers to controverted claims only.
In cases of established workers' compensation claims, providers should bill the carrier directly for causally-related treatment³. Medical providers, who are authorized by the Board to provide treatment in workers' compensation cases, see WCL §§ 13-b, 13-k, 13-l, and 13-m, are required to bill the carrier for related medical treatment and are prohibited from charging the claimant directly.
WCL § 13-f(1). Furthermore, most health insurance contracts exclude from coverage treatment that is provided by workers' compensation, as allowed under New York Insurance law. See 11 N.Y.C.R.R. 52.16(c)(8). Medical providers should be aware of whether a patient's condition is related to his or her employment and are required to provide such information on standard health insurance billing forms such as the HCFA 1500.
Nevertheless, for various reasons, medical providers may submit bills for treatment that is causally related to an established workers' compensation injury to the health insurer rather than the carrier. If the health insurer pays such claims, the HIMP process allows for it to seek reimbursement of such payments. Some carriers have asserted that the health insurer should be cut off from seeking reimbursement if the health insurer was or should have been aware of the existence of a workers' compensation claim at the time it paid the provider, based on the existence of a HIMP match or other similar information.
The law does not provide for such a defense to reimbursement under HIMP. While health care providers should properly bill the workers' compensation carrier for causally-related treatment if the claim has been accepted or established, there may be occasions when a provider inappropriately bills the health insurer for such treatment. The fact that a health insurer had notice of the existence of a workers' compensation claim, whether by HIMP match or some other means, does not relieve the carrier of the obligation to reimburse the health insurer for causally-related treatment.
The carrier may properly object if it had previously opposed authorization of the treatment in question and a Workers' Compensation Law judge denied the request for authorization of the treatment. 12 NYCRR § 325-6.4(b)(6). There is, however, no defense based on the fact that the health insurer knew or should have known about the existence of the workers' compensation claim at the time of payment.
Health insurers are encouraged to use the HIMP match results to identify members for whom a workers' compensation claim(s) exists. With this information, health insurers may create coordination of benefits (COB) files or take other steps in order to screen future claims that should be submitted to the workers' compensation carrier. Health insurers have an incentive to screen such treatment because they can only recover from the carrier an amount no greater than the workers' compensation fee schedule, which is often lower than the rates at which health insurers reimburse providers, and can avoid the transactional costs associated with pursuing HIMP reimbursements.
In addition, providers should be aware that those who intentionally bill health insurers for treatment that they know is covered by an accepted or established workers' compensation claim may be committing insurance fraud or other criminal acts. Health insurers and carriers that identify suspicious billing practices on the part of a provider should report such activity to the Board's Inspector General, the New York State Insurance Department, and other appropriate agencies.
Zachary S. Weiss
¹ While the regulations permit a health insurer to submit Form HIMP-1 without proof of ANCR to satisfy the time limitations in the event of a partial match, few would do so as a practical matter. 12 NYCRR §§ 325-6.3(a)(2); 325-6.6(b)(1)(2). Until ANCR is established, the health insurer does not have access to the Board's e-case files and would not be able to determine which body part(s) is the subject of the workers' compensation claim. Without such information, a health insurer cannot identify which treatments are related to the workplace injury and therefore should be submitted for reimbursement.
² The health insurer should only submit the date of a partial match, if the match was associated with the same workers' compensation claim as the one that the health insurer later received a full match and submitted reimbursement. Because of the partial match rules, it is possible that a submission achieved a partial match to someone else's workers' compensation claim or to a prior workers' compensation claim. In either event, the existence of a prior match to a different claim does not trigger the six month filing rule.
³ Treatment in a case that is controverted by the carrier will not be paid by the carrier until the Board has determined that it is compensable and therefore is appropriately submitted to the health insurer at the time treatment is provided.