Stop Paying Without a Fight! HIMP-1 Defense at LOIS

In recent years, many carriers have been receiving hundreds, if not thousands, of HIMP-1 reimbursement requests. Oftentimes it is left up to the handling claims professional to respond, and that claims professional may just end up paying the HIMP-1 out of misunderstanding or intimidation. The purpose of this article is to demystify the HIMP process and inform carriers and self-insureds that you almost never have to pay full value on a HIMP-1 demand!

The Health Insurance Matching Program (“HIMP”) is the process by which an injured worker’s health insurer can get reimbursed for medical treatment that the health insurer believes should have been the responsibility of a workers’ compensation carrier to pay. Pursuant to the processes set forth in WCL § 13 and 12 NYCRR §§ 325-5 and 325-6, the health insurer can submit data regarding the injured worker to the Workers’ Compensation Board, who will advise the health insurer whether the data matches a claim before the Board. Should the health insurer receive a “full match” from the Board (receiving only a “partial match” is insufficient), it is permitted to serve the HIMP-1 reimbursement demand on the workers’ compensation carrier. This can result in significant “back-end” exposure for a workers’ compensation carrier, even years after the approval of a “full and final” Section 32 settlement!

The time in which to serve a HIMP-1 demand is not unlimited, however. The health insurer must submit the request for a match (known as the “reimbursement request”) to the Board within three years of the date of payment for services, and they have one year from the latest of the following dates to serve the HIMP-1 demand carrier: (1) The date of ANCR or acceptance of the claim; (2) The date of “full match;” (3) The date of payment for services; or (4) the effective date of the HIMP Rules and Regulations. Practically, since the effective date of the HIMP Rules and Regulations is June 1, 2016, the fourth measure for timeliness is no longer relevant for current HIMP-1 demands.

Below is a shorthand list of the permissible HIMP-1 objections set forth in Section 325-6.4(b):

1. No ANCR or acceptance.
2. Untimely service (reimbursement request not sent to Board within 3 years of date of payment for services, or HIMP-1 demand not served on the carrier within 1 year of the above-mentioned time periods).
3. Unrelated/unestablished treatment or treatment to someone other than the claimant.
4. Non-emergent treatment after authorization request was denied by the Board, or was denied by the carrier and the claimant/provider did not seek Board review of the denial.
5. Fee in excess of NYS workers’ compensation medical fee schedule (note: this objection applies to every HIMP!).
6. Bill should have been pro-rated with another physician/provider.
7. Carrier cannot determine responsibility for payment based upon documentation served.
8. Prior payment to provider or health insurer for services at issue (proof of payment required).
9. Treatment after Section 32 medical treatment waiver.
10. Carrier not liable for treatment due to Section 29 credit/offset (credit pursuant to Burns/Bissell).
11. Treatment inconsistent with the Medical Treatment Guidelines.

Beyond this, Section 325-6.4(c) provides that the carrier can interpose any objection “which demonstrates that the request for reimbursement should not be made,” unless the objection is specifically prohibited. The specifically prohibited objections include:

1. Failure of a provider to seek prior authorization under WCL Section 13-a(5) (for “special services” costing in excess of $1,000). Note that this does not prohibit objecting based on failure to request authorization for one of the procedures specifically requiring preauthorization per the MTGs (e.g., lumbar fusion, artificial disc replacements, knee arthroplasty, etc.). That type of treatment would still be objectionable as inconsistent with the MTGs.
2. Failure of a provider to file notices and/or reports required by WCL Section 13-a(4), 13-k(3), 13-l(3) or 13-m(4) (in other words, failure to file appropriate Board forms with medical report, such as C-4.0, C-4.2, etc.).
3. Excessive or too frequent treatment, unless the treatment is inconsistent with the MTGs.
4. Excessive or unnecessary hospitalization, unless inconsistent with the MTGs.

In defending a HIMP-1 claim, the single most important thing a carrier can do is to respond timely! Almost all potential HIMP-1 defenses to the HIMP-1 are deemed waived if an objection is not filed within 90 days of the date of service of the HIMP-1. The only defenses that could potentially still be raised if no timely objection was filed are: no ANCR/acceptance (in which case the claim is ineligible for reimbursement or arbitration), service on incorrect address for carrier (provided the carrier has designated a specific address for service of HIMP-1 forms and the health insurer was on notice of this), or the health insurer did not actually get a “full match” from the Board (in which case the claim is ineligible for reimbursement or arbitration).

This means that a HIMP demand could be patently untimely, or it could be for an unrelated injury, and as long as the workers’ compensation claim is established/accepted for any other injuries/conditions and the HIMP-1 was properly served after a “full match,” an arbitrator will award full reimbursement to the health insurer. The workers’ compensation carrier frequently becomes liable to pay well in excess of the fee schedule on arbitration awards, in addition to reimbursement of the health insurer’s arbitration fees, simply due to inadvertence or lack of familiarity with the HIMP process.

In dealing with these requests for reimbursement, we recommend keeping a few general “ground rules” in mind:

• NEVER “just pay” the HIMP-1. At bare minimum, you always have the fee schedule objection, which will almost always result in significant savings over the total HIMP demand, and many HIMPs are objectionable in their entirety on other grounds. Even if the only basis for an objection is the fee schedule, every health insurer and HIMP agent will be willing to accept the fee schedule value in settlement if offered, since they know an arbitration award will be capped at the fee schedule if you timely object on that basis. Therefore, if nothing else, you should run the fee schedule (or send it to an outside vendor to do so) and attempt offering that in settlement first, assuming you have no other objections, or serve an objection based upon the fee schedule. Remember that if you timely and properly object based upon the fee schedule, the fee schedule is now your worst-case scenario at arbitration!
• On lower value HIMPs, many health insurers are unwilling to take the matter to arbitration if you demonstrate a willingness to fight, especially if your objections are legitimate. For instance, if the whole HIMP is untimely and you object on that basis, the chances of arbitration being requested are very slim.
• Remember that the health insurer/HIMP agent are just after money and have little interest in litigating the merits. You can generally leverage objections into favorable settlements, even on higher exposure HIMPs. Many HIMP-1 demands come down to “who blinks first.”
• If you timely and properly objected on a high value HIMP, and arbitration is requested, you should request the oral hearing within 14 days of your receipt of the arbitration request. The extra $475.00 fee is worth it to get your arguments out in full before the arbitrator.
• Don’t fall for “informal” fishing expeditions or intimidation tactics. Many times, the carrier will receive a letter from the health insurer saying something to the effect of “we have determined that this is a workers’ compensation claim” and attaching their payment ledger, along with payment instructions for reimbursement. They will also send 30-day and 60-day warning notices. Don’t do their job for them! Unless they serve a HIMP-1 form after receiving a “full match” from the Board, you are not obligated to reimburse them.
• Don’t let the health insurer tell you whether their demand is reimbursable or whether you have any objections. Many times, they will include a cover letter stating that they have provided all information required under the HIMP Rules and Regulations, and that a need for further information or documents is not a valid basis to object. Let the arbitrator decide whether the health insurer has complied with the requirements of Section 325-6.3(c).
• Remember that you have a right to investigate the HIMP-1. The regulations provide that the health insurer cannot unreasonably refuse an extension request if you are looking to obtain the treatment and billing records from the provider(s), and Section 325-6.3(f) specifically authorizes the carrier to demand the records from the providers. If the providers fail to respond to the records demand, counsel can issue a subpoena.
• Remember that if you would have had a valid basis to object to the treatment if it were submitted through the Board, you likely have a valid HIMP-1 objection. Evaluate the treatment expense as you would any other medical bill, determine if it is objectionable, and then match your objection to one of the specifically delineated objections in Section 325-6.4(b). As long as it is not one of the prohibited objections, you can likely object to the HIMP on whichever objectionable ground you identified.
• You must object on the HIMP-1 form itself, with Part II of the form properly completed and signed and all documentary evidence attached, and this must be served on the health insurer within 90 days of service of the HIMP-1 demand (with proof of mailing included). The date of service is listed next to the signature line in Part I of the HIMP-1 form.
• When in doubt, ask your attorneys! We can fight on these HIMP-1 claims for you, and many times we can avoid payment entirely with a proper objection.

At LOIS, we will be able to review the HIMP-1, determine if the health insurer obtained a “full match” and whether the HIMP-1 was properly served, and identify any and all objections. In defending the underlying workers’ compensation claim for you, we can see the HIMP exposure coming (for instance, with denied treatment or controverted injury sites), and we can synchronize our HIMP-1 defense with our defense efforts before the Board. We can evaluate the expenses with the treatment in the Board file to determine whether the expenses were in excess of the fee schedule, were unrelated to the claim, were previously denied, were subject to Section 29 credit, were inconsistent with the MTGs, etc. At minimum, we will always be able to leverage our objections into significantly reduced exposure over the initial HIMP-1 demand, whether in an arbitration award or in settlement.