Hawaii Department of Human Services, DAB No. 983 (1988)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  Hawaii Department of Human Services

Docket No. 88-59
Decision No. 983

Date:  September 1, 1988

DECISION

The Hawaii Department of Human Services appealed the disallowance by the
Health Care Financing Administration (HCFA) of $2949 in federal funding
claimed under Title XIX (Medicaid) of the Social Security Act (Act).
HCFA determined that the State had claimed Medicaid reimbursement for
medical services for an individual in contravention of section 1903(o)
of the Social Security Act.  Section 1903(o) prohibits federal funding
in expenditures on behalf of an individual eligible for assistance under
a state Medicaid plan

     to the extent that a private insurer . . . would have been
     obligated to provide such assistance but for a provision of its
     insurance contract which has the effect of limiting or excluding
     such obligation because the individual is eligible for or is
     provided medical assistance under the plan.

For the reasons discussed below, we find that the Agency's application
of section 1903(o) is fully supported by the statutory language and we
uphold the disallowance.

         Background

On March 20, 1985, the United States General Accounting Office (GAO)
issued a report to HCFA's Administrator on GAO's review of Hawaii's
Medicaid operations.  (Agency Ex. C)  The report had as one of its
conclusions that

     Hawaii's no-fault insurance law excludes coverage of no-fault
     medical benefits for Medicaid recipients who receive the insurance
     without charge.  As a consequence, Medicaid pays the medical costs
     for a Medicaid recipient who was injured in an automobile covered
     by insurance obtained without charge to the recipient although this
     insurance's no-fault benefits would cover the medical costs for
     non-Medicaid passengers or a non-Medicaid driver in the same
     vehicle.  Under state law, therefore, Medicaid is treated as the
     primary payer.  Section 1903(o), in our opinion, precludes federal
     participation in Medicaid payments made because of this exclusion.
     (pp. 2-3)

Acting on the GAO report, the Agency undertook a follow-up review to
evaluate the impact of Hawaii's no-fault insurance law on the Medicaid
program.  (Agency Ex. D)  The review involved analysis of Medicaid
claims for the period July 1, 1981 through June 30, 1984 for medical
treatment associated with motor vehicle accidents.  The review focused
on 54 case file records in each of which total medical costs claimed
exceeded $10,000 per accident.  The Agency found one automobile accident
in which Hawaii had made a claim under Medicaid for medical assistance
payments of $5897 (federal share $2949) in violation of section 1903(o).
The Agency then issued a disallowance for that case, which is now the
subject of this appeal.

Hawaii statutes provide that a no-fault policy issued at no cost to a
public assistance recipient for accidental harm caused by a motor
vehicle accident shall not include benefits covering medical expenses,
therapy and rehabilitation expenses, and expenses from earnings loss
(benefits which in any event would be subject to an aggregate limit of
$15,000 per person).  Hawaii Revised Statutes (H.R.S.), section
294-2(10).  Similarly, State insurance regulations specifically provide
that where a no-fault policy is issued to a public assistance recipient,
the policy shall not include any medical coverage.  See Rules of the
Insurance Division, State of Hawaii, ch. 23, sections 16-23-5 and
16-23-73 (State Ex. B).

The State's uniform or model insurance agreement providing basic
benefits to public assistance recipients at no cost implements the
exclusion for medical benefits.  See the exhibit attached to Agency
letter dated June 17, 1988.  The insurance agreement provides that the
insurance company will pay no-fault benefits on account of accidental
harm arising out of the operation of a motor vehicle.  The agreement
provides that no-fault benefits consist of the following:  medical
expenses, rehabilitation expenses, work loss, substitute service
expenses, funeral expenses, survivors' loss, attorney's fees and costs,
and other appropriate and reasonable expenses.  The agreement
subsequently provides, however, that a no-fault policy issued to
certified public assistance recipients at no cost shall not include
benefits consisting of medical expenses, rehabilitation expenses and
work loss for any person receiving public assistance benefits.

The facts behind the particular Medicaid claim at issue here are as
follows.  The Medicaid recipient (Ms. B.) was very seriously injured
while an occupant of a vehicle that was owned by Mrs. K., who was also a
public assistance recipient and who was covered by a free no-fault
policy.  The policy was issued by State Farm Insurance Company.  (It is
undisputed that the policy is the same as the uniform insurance
agreement applicable to public assistance recipients that was described
above.)  If Ms. B. had not been a Medicaid recipient at the time, the
insurer of the vehicle in which she was riding would have been obligated
to pay no-fault medical benefits to her regardless of who was at fault
in causing the accident.  See, for example, the terms of the applicable
uniform agreement quoted above and H.R.S. section 294-4(1)(A);
294-2(10)(A); 294-3.  The no-fault "medical" benefits that would have
been available included $15,000 in medical, rehabilitation and wage loss
benefits.  Nevertheless, since Ms. B. was a Medicaid recipient, she was
categorically excluded by a provision of Mrs. K.'s insurance contract
from receiving the medical benefits.  While Ms. B. was able to make
liability claims against Mrs. K.'s policy as well as against the other
driver, $14,000 in medical expenses resulting from the accident were
paid for by the Medicaid program.  Although the State was subsequently
able to recoup some of what it had initially paid under the Medicaid
program by virtue of a lien it asserted on any recovery for liability
damages Ms. B. might receive in a lawsuit against the driver of the
other car involved in the accident, it settled its lien claim by
receiving only 60% of the approximately $14,000 in claims it had paid
under the Medicaid program.  The State was left having to pay
approximately $6000 for medical expenses, and the precise Federal share
of that payment, the amount of this disallowance, was $2949.  The State
did not dispute that without the exclusion in Mrs. K.'s policy, the
$6000 in medical expenses covered by Medicaid would have been covered by
the insurance policy.

   Analysis

The statutory provision at issue, section 1903(o), which was quoted at
the beginning of this decision, precludes any Federal payment to a state
for program expenditures for medical assistance under the state plan
where 1) a private insurer (as defined by the Secretary by regulation),
2) would have been obligated to provide such medical assistance, 3) but
for a provision of its insurance contract which has the effect of
excluding such obligation because the individual is eligible for
Medicaid.

We conclude that all elements of the statutory provision are met in the
instant case.  Under the State's program, a public welfare recipient can
select any insurer participating in the State's no-fault program he or
she wishes.  The driver of the car, Mrs. K., who was a public assistance
recipient, had a free no-fault policy issued by State Farm Insurance.
(State Supp. Br., p. 1)  While a joint underwriting plan involving all
participating insurance companies funded the policies for public
assistance recipients (rather than the recipients themselves), the
policy in question here was certainly issued and administered by a
private insurer within the regulatory definition at 42 C.F.R.
433.136(1).  The regulations provide that a "private insurer" means:
"[a]ny commercial insurance company offering health or casualty
insurance to individuals . . . ."  Thus, we find that the first element
of the statute was met.

We also find that the policy would have covered the medical services in
question but for a provision of the policy that excluded coverage
because the individual making the claim was a Medicaid recipient.  As a
passenger in the car that was involved in an accident, Ms. B. clearly
would have been entitled to claim medical, rehabilitation and wage loss
expenses up to $15,000 under Mrs. K.'s policy.  However, that policy
contained a specific clause that excluded those expenses for any person
receiving public assistance benefits (which would include Medicaid
benefits).  Thus, we find that the Agency's application of the statutory
provision at issue here was based on the plain meaning of the provision.

Moreover, the fact that Ms. B. was able to obtain liability compensation
from the two drivers involved in the accident in no way detracts from
the applicability of section 1903(o) in this instance.  As the Agency
argued, section 1903(o) prohibits any provision in insurance contracts
which has the effect of limiting coverage for medical benefits to
recipients without regard to other avenues of compensation that may be
open to an injured party.  (Agency Supp. Br., p. 3)  Here, the State is
claiming under the Medicaid program for medical services which would
have been covered by Mrs. K.'s contract.  As long as the Medicaid
program would be paying for Ms. B.'s medical services that could have
been covered under Mrs. K.'s insurance contract but for Ms. B.'s
Medicaid status, Ms. B's liability claims against the drivers are
irrelevant.

It is also noteworthy that section 1903(o) is not limited to situations
where the recipient's own policy contains the exclusionary rule.  It
applies to any instance in which an insurer would have been obligated to
compensate a Medicaid recipient, regardless of whether the insurer has a
contractual relationship with the individual or not.

While not disputing in its supplemental brief that the disallowance is
supported by the literal language of section 1903(o), the State
questioned whether it is supported by the legislative purpose behind
section 1903(o).  One of the primary arguments of the State is that the
legislative history of section 1903(o) suggests that the provision
applies only to liability coverage exclusions.  The relevant legislative
history, which is contained in S. Rep. No. 453, 95th Cong., 1st Sess.,
p. 30 (1977), states:

     Under current law, States or local agencies administering medical
     assistance plans are required to take all reasonable measures to
     ensure that third parties legally liable to pay for any medical
     care rendered to medicaid recipients meet their legal obligations.
     However, some private insurance policies contain a provision that
     limits the insurance companies' liability to the amount not covered
     by medicaid.  In some cases, State insurance commissioners have not
     taken action to stop this practice.  When it occurs, the medicaid
     program is forced to assume the costs despite the existing
     subrogation requirement.

     The bill would provide an incentive to States to stop this practice
     by stopping all Federal matching payments for expenditures made
     under the plan for care or services provided to the extent the
     private insurer (as defined by the Secretary) would have been
     obligated to pay except for a provision of its contract which has
     the effect of limiting or excluding such obligation because the
     individual is receiving assistance under medicaid.

We can find nothing from this passage that suggests that section 1903(o)
applies only to "liability" insurance.  As the Agency noted, the Report
refers to "insurance policies," and "insurers," generally without any
indication that the statute was meant to apply only to a particular type
of insurance coverage.  Neither the statute nor the history makes any
reference to any particular type of coverage.  Moreover, the statute
provides that the Secretary is to define what is meant by "private
insurer."  The Secretary has promulgated regulations including "[a]ny
commercial insurance company offering health or casualty insurance to
individuals or groups . . . ."  42 C.F.R. 433.136(1).  This definition
is not limited to traditional "liability" insurance and encompasses
Hawaii's no-fault insurance.  Finally, when the report refers to
instances where the Medicaid program had been forced to assume
responsibility for medical costs despite the existing subrogation
requirement, it simply refers to situations such as those raised here
where a policy exclusion eliminates the obligation of the insurance
company to pay for medical costs and thus effectively bypasses
subrogation requirements which would require the company to reimburse
the Medicaid program if in fact the company had the legal obligation to
pay for medical costs claimed under the program.  See Subpart D of 42
C.F.R. Part 433 concerning third party liability in the Medicaid
program.

Even though the State conceded that section 1903(o) was enacted in order
to prevent insurance companies from making Medicaid the "primary payor"
for medical services that would otherwise be covered by insurance, the
State's no-fault program tends to institutionalize this very effect.  As
the Agency argued, the provision of no-cost insurance exclusive of
medical benefits in effect enables the insurance industry in Hawaii to
disclaim responsibility for medical costs incurred by injured Medicaid
recipients (which would be covered for all other persons) thereby
substituting Medicaid as the primary medical insurer.  According to the
Agency,

     [t]he only difference between this system and the practice of
     individual insurers attempting to incorporate Medicaid exclusions
     directly into individual insurance contracts is that in Hawaii this
     strategy actually has been endorsed by the State.     (Agency Supp.
     Br., p. 5)

The underlying thread that runs throughout the State's arguments is that
the Agency's position is unfair to the State's insurance program and to
its insurance industry.  The State argued that Hawaii would face a
"Hobson's choice" if the Agency's interpretation is sustained:  "either
abolish its automobile insurance program for [public assistance]
recipients or force the insurance carriers who underwrite these policies
to bear the medical costs of persons whose care would normally be
covered by Medicaid."  State's Br., pp. 1-2.  The fairness of the
Agency's position as it applies to particular state insurance programs
and the effect of that position on bringing about changes in a state's
program are policy issues that are outside the scope of the Board's
review.  Thus, this argument is not a basis for reversing the
disallowance.  Nevertheless, a number of the assumptions underlying
Hawaii's argument concerning the fairness of the Agency's position are
either unsubstantiated or untrue.  It begs the question to say that the
medical costs of individuals such as the individual involved in the
accident here would "normally" be covered by Medicaid in view of the
wide-ranging scope of the section 1903(o) prohibition on payment.  Where
medical costs would otherwise be covered by an insurance policy (and,
indeed, here the state's program requires that specified medical
benefits be provided in all of its standard policies except those
applicable to public assistance recipients), those costs can not be
viewed as "normally" Medicaid costs in view of the section 1903(o)
prohibition.  That prohibition effectively keeps funding for such
medical costs in the hands of the insurance industry or ultimately in
the hands of the persons paying the premiums for the policies.

Moreover, in cases where the Medicaid recipient pays for his or her own
policy (as apparently takes place in all states other than Hawaii), any
medical benefits provided by the policy, although covered by the
insurance company under the policy, would ultimately be funded by the
recipient's own premiums.  This result, using the State's line of
reasoning, might also be viewed as inequitable since Medicaid recipients
would have to fund their own medical costs.  Nevertheless, the State did
not argue that this result is not sanctioned by the statute, and,
indeed, there is no indication in section 1903(o) or its legislative
history that the provision does not apply to policies issued to Medicaid
recipients who pay their own premiums.

Finally, as the Agency pointed out, even if the State abolished its
program for public assistance recipients, the State's decision would not
necessarily have an adverse monetary impact on the Medicaid program,
since there is no indication in the record that public assistance
recipients, if faced with the substantial penalties that apply to
uninsured motorists in Hawaii, would not get their own insurance policy
in the absence of no-cost policies from the State.  Thus, section
1903(o) would still operate to prevent the Medicaid program from paying
for medical services resulting from automobile accidents.

         Conclusion

For the foregoing reasons, we uphold the disallowance in full.


 ________________________________ Cecilia Sparks Ford


 ________________________________ Alexander G. Teitz


 ________________________________ Donald F. Garrett Presiding
 Board

This is archived HHS content.