What is the Health Insurance Matching Program?
Picture the following scenario: the carrier litigates a workers’ compensation claim to its conclusion, maybe even reaching a “full and final” Section 32 settlement. The carrier has a bottom line for its exposure, knows its total costs, and the file is closed. Then, three years later, a $100,000 surgical bill comes through the door. This scenario is all too common, and is a byproduct of the Health Insurance Matching Program
Sections 325-5 and 325-6 of Title 12 of the New York Codes, Rules and Regulations set forth certain procedures and prerequisites under which health insurers may seek reimbursement from the workers’ compensation carrier for bills paid for medical treatment rendered to the claimant. Collectively referred to as the Health Insurance Matching Program (“HIMP”) Rules and Regulations, the right to reimbursement inures in New York Workers’ Compensation Law § 13(a), which provides that the workers’ compensation carrier is responsible to pay the cost of medical benefits arising from any work-related injury. The New York State Workers’ Compensation Board collects data in order to identify injured workers who make the same claim for medical benefits to both the health insurer and the workers’ compensation carrier. This data is then provided to the health insurer who has already paid for the medical benefit claim and now seeks reimbursement from the workers’ compensation carrier. Depending on the data received from the Workers’ Compensation Board, the health insurer can initiate a claim for reimbursement for the amount it paid which may have been the responsibility of the workers’ compensation carrier. If the health insurer is notified of a “full match” by the Board, they are permitted to serve a HIMP-1 demand on the workers’ compensation carrier.
Put simply, the Health Insurance Matching Program is the means by which a health insurer can recover reimbursement for medical expenses paid which may have been the responsibility of a workers’ compensation carrier.
Objecting to a HIMP-1 Claim
HIMP Rules and Regulations § 325-6.4 sets forth the permissible and impermissible objections the workers’ compensation carrier can raise. An objection must be filed within 90 days of service of the HIMP-1 form by the health insurer. The HIMP-1 form contains both a section for the carrier to fill out in objecting to the reimbursement request and a “checklist” which the carrier can use to raise permissible objections.
A carrier’s objections to a HIMP-1 claim are, by and large, objections they would have had if the bills were submitted through the Workers’ Compensation Board normally. Claims for which accident, notice and causal relationship (“ANCR”) have not been established are ineligible for arbitration. The carrier is not liable for payment of treatment that is not causally-related (i.e., to an unestablished injury site). Where the Board has denied authorization for treatment, or the carrier denied authorization and that denial was not contested, the treatment bills are objectionable under the HIMP Rules and Regulations. Additionally, the health insurer is required to provide certain information and documentation in support of the HIMP claim (detailed in Section 325-6.3(c)). Prior payment for the services, or pro-rating of a bill, are also valid objections. Services rendered after approval of a Section 32 waiver agreement that closes future medical treatment are not subject to reimbursement. If the carrier is asserting a third-party credit under WCL § 29 that would reduce the amount of the bill, or avoid payment of it entirely, an objection can be raised on this basis. Treatment by a Board-authorized provider that was inconsistent with the New York Medical Treatment Guidelines is likewise objectionable.
Stated another way, the carrier should ask a basic question: would I have been able to object to this if it was submitted through the Workers’ Compensation Board process?
How Do We Defend Against HIMP-1 Claims?
The HIMP Rules and Regulations have very specific, delineated requirements for a valid claim. Many health insurers fail to demonstrate strict compliance with the timing and service requirements. The health insurer has three years from the date of payment for the medical services at issue to either submit the data to the Board for a match or have received a full match in connection with the workers’ compensation claim. Additionally, the HIMP-1 reimbursement request must be served within one year of the latest date of: (i) acceptance of the claim or establishment of ANCR to the particular body part or disease in question; (ii) the date the Board notifies the health insurer of a “full match” pursuant to § 325-5; (iii) the date of payment for services; or (iv) the effective date of the HIMP regulation.
The policy rationale for the timing requirements is evident: the further removed the HIMP-1 is from the date of services, the more difficult it is for the carrier to properly investigate the validity of the claim. A failure to adhere to the timing requirements is a valid (and strong) basis to deny a HIMP-1 reimbursement request. However, beyond the timing limitations, there are likewise requirements for valid execution of the HIMP-1 form by the health insurer. For instance, adherence to the following standards is required:
- The health insurer must have been notified of a full match by the Board;
- The health insurer must complete all information required on the HIMP-1 form before serving on the carrier;
- The health insurer must include copies of all provider bills for which the health insurer is claiming entitlement to reimbursement (not just payment ledgers!). Moreover, these bills from the provider must include specific information, such as the name of the person receiving treatment, a diagnosis with applicable ICD codes, dates of hospitalization, itemization of services rendered with corresponding billing codes, etc.; and
- The insurer must include proof of ANCR or proof of acceptance of the claim by the carrier, as well as proof of valid service.
A failure to adhere to any of the foregoing requirements is a basis for the workers’ compensation carrier to object to the HIMP-1 request. Once objected to, a HIMP-1 claim becomes eligible for arbitration provided certain conditions are met. However, no request for reimbursement is eligible for arbitration unless it has been timely filed and served in accordance with the HIMP Rules and Regulations. Additionally, claims that have not been established by either acceptance of the claim by the carrier or the Board finding ANCR are ineligible for arbitration.
Objections based on defects in form or service of the HIMP-1 request are not the only way to defend against HIMP-1 claims. Section 325-6.3(e) provides specifically that the workers’ compensation carrier’s liability for payment is limited to what it would have ordinarily been liable to pay under New York State Workers’ Compensation Medical Fee Schedules. This is a strong defense to raise in the alternative as it is one of the few means of placing an approximate value on what the arbitration award may ultimately be. Arbitration awards are subject to the whims of the individual arbitrator and can be somewhat unpredictable. Placing a firm valuation on the claim per the New York fee schedules is strong leverage in settlement negotiations, in addition to objections based on defects in service or form of the HIMP-1 request.
One of the most difficult and intricate means of defending a HIMP-1 claim is objecting based on treatment inconsistent with the Medical Treatment Guidelines (“MTGs”). This requires a working knowledge of the types of injuries subject to the MTGs and what treatment falls outside the parameters. Was a Form C-4AUTH submitted if it was a surgery requiring prior authorization? Was a Form MG-2 variance request submitted if the treatment deviated from the MTGs? Was the surgery indicated based on the criteria listed in the MTGs? Is the treating doctor Board-authorized?
Competent defense counsel will be able to analyze the treatment at issue and determine whether this objection can be raised. As always, however, some of the strongest weapons in our arsenal are proper discovery and litigation. The workers’ compensation carrier should never take the health insurer’s claims at face value. The HIMP Rules and Regulations specifically authorize the carrier to demand the medical records at issue in the HIMP-1 from the providers (Section 325-6.3(f)). Following up with subpoenas to the medical providers helps us confirm that all aspects of the claimed services are related to compensable injuries or conditions. Obtaining the full records at issue permits a proper investigation and audit, which is particularly helpful for determining whether the treatment is causally-related and within the MTGs, and whether the bills are within the NYS fee schedules.
Additionally, while health insurers are all too happy to serve HIMP-1 requests, they are frequently unwilling to take the matter to arbitration. This is partly because of the unpredictable nature of arbitration awards but is also because of the inherent difficulty in proving the legitimacy of claims that are several years old. Put differently, the workers’ compensation carrier should be ready, willing, and able to arbitrate if necessary. Oral argument is always recommended (the carrier can request an oral hearing within 14 days of receipt of the arbitration request from the health insurer), both for the purpose of showing the health insurer that the carrier intends to fight, and for the purpose of getting all valid arguments out in front of the arbitrator to give the carrier the best chance to win.
While developing valid objections, investigating the claim, and submitting detailed legal briefs on the issue strengthen the workers’ compensation carrier’s defenses, oftentimes HIMP-1 claims come down to a simple determination of “who blinks first.” Calling the health insurer’s bluff on illegitimate claims for reimbursement is one of the primary means of leveraging a favorable settlement, and failing such a settlement, a multifaceted defense is the best way to push for a favorable finding at arbitration. It is important to keep in mind that, if the carrier has provided proof of its liability under the NYS fee schedules along with its objection (typically done via bill review reports), the NYS fee schedule liability represents the carrier’s “worst-case scenario” at arbitration. This is yet another reason to aggressively push baseless HIMP-1 claims to arbitration.
As part of our comprehensive defense of workers’ compensation carriers, Lois Law Firm LLC can help you defend against HIMP-1 reimbursement requests. Commencing aggressive discovery and investigation immediately is vital to developing valid defenses and preparing a strong case for arbitration. In New York, the workers’ compensation carrier’s exposure does not begin and end with the compensability of a workers’ compensation claim, and a full-service defense firm with intimate familiarity of the Workers’ Compensation Law is in the best position to help carriers mitigate their exposure.