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90_HB0673 215 ILCS 5/122-1 from Ch. 73, par. 734-1 215 ILCS 5/1003 from Ch. 73, par. 1065.703 215 ILCS 105/8 from Ch. 73, par. 1308 Amends the Illinois Insurance Code. Provides that persons who provide coverage for naprapathic services are subject to the jurisdiction of the Department of Insurance. Includes a naprapath within the scope of the term "medical professional" under the Insurance Information and Privacy Protection Article of the Code. Amends the Comprehensive Health Insurance Plan Act. Includes coverage for naprapathic services under the minimum benefits available under that Act. LRB9003688JSgc LRB9003688JSgc 1 AN ACT concerning naprapathic services, amending named 2 Acts. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Illinois Insurance Code is amended by 6 changing Sections 122-1 and 1003 as follows: 7 (215 ILCS 5/122-1) (from Ch. 73, par. 734-1) 8 Sec. 122-1. The authority and jurisdiction of Insurance 9 Department. Notwithstanding any other provision of law, and 10 except as provided herein, any person or other entity which 11 provides coverage in this State for medical, surgical, 12 chiropractic, naprapathic, physical therapy, speech 13 pathology, audiology, professional mental health, dental, 14 hospital, ophthalmologic, or optometric expenses, whether 15 such coverage is by direct-payment, reimbursement, or 16 otherwise, shall be presumed to be subject to the 17 jurisdiction of the Department unless the person or other 18 entity shows that while providing such coverage it is subject 19 to the jurisdiction of another agency of this state, any 20 subdivision of this state, or the Federal Government, or is a 21 plan of self-insurance or other employee welfare benefit 22 program of an individual employer or labor union established 23 or maintained under or pursuant to a collective bargaining 24 agreement or other arrangement which provides for health care 25 services solely for its employees or members and their 26 dependents. 27 (Source: P.A. 86-753.) 28 (215 ILCS 5/1003) (from Ch. 73, par. 1065.703) 29 Sec. 1003. Definitions. As used in this Article: (A) 30 "Adverse underwriting decision" means: -2- LRB9003688JSgc 1 (1) any of the following actions with respect to 2 insurance transactions involving insurance coverage which is 3 individually underwritten: 4 (a) a declination of insurance coverage, 5 (b) a termination of insurance coverage, 6 (c) failure of an agent to apply for insurance coverage 7 with a specific insurance institution which the agent 8 represents and which is requested by an applicant, 9 (d) in the case of a property or casualty insurance 10 coverage: 11 (i) placement by an insurance institution or agent of a 12 risk with a residual market mechanism, an unauthorized 13 insurer or an insurance institution which specializes in 14 substandard risks, or 15 (ii) the charging of a higher rate on the basis of 16 information which differs from that which the applicant or 17 policyholder furnished, or 18 (e) in the case of life, health or disability insurance 19 coverage, an offer to insure at higher than standard rates. 20 (2) Notwithstanding paragraph (1) above, the following 21 actions shall not be considered adverse underwriting 22 decisions but the insurance institution or agent responsible 23 for their occurrence shall nevertheless provide the applicant 24 or policyholder with the specific reason or reasons for their 25 occurrence: 26 (a) the termination of an individual policy form on a 27 class or statewide basis, 28 (b) a declination of insurance coverage solely because 29 such coverage is not available on a class or statewide basis, 30 or 31 (c) the rescission of a policy. 32 (B) "Affiliate" or "affiliated" means a person that 33 directly, or indirectly through one or more intermediaries, 34 controls, is controlled by or is under common control with -3- LRB9003688JSgc 1 another person. 2 (C) "Agent" means an individual, firm, partnership, 3 association or corporation who is involved in the 4 solicitation, negotiation or binding of coverages for or on 5 applications or policies of insurance, covering property or 6 risks located in this State. For the purposes of this 7 Article, both "Insurance Agent" and "Insurance Broker", as 8 defined in Section 490, shall be considered an agent. 9 (D) "Applicant" means any person who seeks to contract 10 for insurance coverage other than a person seeking group 11 insurance that is not individually underwritten. 12 (E) "Director" means the Director of Insurance. 13 (F) "Consumer report" means any written, oral or other 14 communication of information bearing on a natural person's 15 credit worthiness, credit standing, credit capacity, 16 character, general reputation, personal characteristics or 17 mode of living which is used or expected to be used in 18 connection with an insurance transaction. 19 (G) "Consumer reporting agency" means any person who: 20 (1) regularly engages, in whole or in part, in the 21 practice of assembling or preparing consumer reports for a 22 monetary fee, 23 (2) obtains information primarily from sources other than 24 insurance institutions, and 25 (3) furnishes consumer reports to other persons. 26 (H) "Control", including the terms "controlled by" or 27 "under common control with", means the possession, direct or 28 indirect, of the power to direct or cause the direction of 29 the management and policies of a person, whether through the 30 ownership of voting securities, by contract other than a 31 commercial contract for goods or nonmanagement services, or 32 otherwise, unless the power is the result of an official 33 position with or corporate office held by the person. 34 (I) "Declination of insurance coverage" means a denial, -4- LRB9003688JSgc 1 in whole or in part, by an insurance institution or agent of 2 requested insurance coverage. 3 (J) "Individual" means any natural person who: 4 (1) in the case of property or casualty insurance, is a 5 past, present or proposed named insured or certificateholder; 6 (2) in the case of life, health or disability insurance, 7 is a past, present or proposed principal insured or 8 certificateholder; 9 (3) is a past, present or proposed policyowner; 10 (4) is a past or present applicant; 11 (5) is a past or present claimant; or 12 (6) derived, derives or is proposed to derive insurance 13 coverage under an insurance policy or certificate subject to 14 this Article. 15 (K) "Institutional source" means any person or 16 governmental entity that provides information about an 17 individual to an agent, insurance institution or 18 insurance-support organization, other than: 19 (1) an agent, 20 (2) the individual who is the subject of the 21 information, or 22 (3) a natural person acting in a personal capacity 23 rather than in a business or professional capacity. 24 (L) "Insurance institution" means any corporation, 25 association, partnership, reciprocal exchange, inter-insurer, 26 Lloyd's insurer, fraternal benefit society or other person 27 engaged in the business of insurance, health maintenance 28 organizations as defined in Section 2 of the "Health 29 Maintenance Organization Act", medical service plans as 30 defined in Section 2 of "The Medical Service Plan Act", 31 hospital service corporation under "The Nonprofit Health Care 32 Service Plan Act", voluntary health services plans as defined 33 in Section 2 of "The Voluntary Health Services Plans Act", 34 vision service plans as defined in Section 2 of "The Vision -5- LRB9003688JSgc 1 Service Plan Act", dental service plans as defined in Section 2 4 of "The Dental Service Plan Act", and pharmaceutical 3 service plans as defined in Section 4 of "The Pharmaceutical 4 Service Plan Act". "Insurance institution" shall not include 5 agents or insurance-support organizations. 6 (M) "Insurance-support organization" means: (1) any 7 person who regularly engages, in whole or in part, in the 8 practice of assembling or collecting information about 9 natural persons for the primary purpose of providing the 10 information to an insurance institution or agent for 11 insurance transactions, including: 12 (a) the furnishing of consumer reports or investigative 13 consumer reports to an insurance institution or agent for use 14 in connection with an insurance transaction, or 15 (b) the collection of personal information from 16 insurance institutions, agents or other insurance-support 17 organizations for the purpose of detecting or preventing 18 fraud, material misrepresentation or material nondisclosure 19 in connection with insurance underwriting or insurance claim 20 activity. 21 (2) Notwithstanding paragraph (1) above, the following 22 persons shall not be considered "insurance-support 23 organizations" for purposes of this Article: agents, 24 government institutions, insurance institutions, medical care 25 institutions and medical professionals. 26 (N) "Insurance transaction" means any transaction 27 involving insurance primarily for personal, family or 28 household needs rather than business or professional needs 29 which entails: 30 (1) the determination of an individual's eligibility for 31 an insurance coverage, benefit or payment, or 32 (2) the servicing of an insurance application, policy, 33 contract or certificate. 34 (O) "Investigative consumer report" means a consumer -6- LRB9003688JSgc 1 report or portion thereof in which information about a 2 natural person's character, general reputation, personal 3 characteristics or mode of living is obtained through 4 personal interviews with the person's neighbors, friends, 5 associates, acquaintances or others who may have knowledge 6 concerning such items of information. 7 (P) "Medical-care institution" means any facility or 8 institution that is licensed to provide health care services 9 to natural persons, including but not limited to: hospitals, 10 skilled nursing facilities, home-health agencies, medical 11 clinics, rehabilitation agencies and public-health agencies 12 and health-maintenance organizations. 13 (Q) "Medical professional" means any person licensed or 14 certified to provide health care services to natural 15 persons, including but not limited to, a physician, dentist, 16 nurse, optometrist, chiropractor, naprapath, pharmacist, 17 physical or occupational therapist, psychiatric social 18 worker, speech therapist, clinical dietitian or clinical 19 psychologist. 20 (R) "Medical-record information" means personal 21 information which: 22 (1) relates to an individual's physical or mental 23 condition, medical history or medical treatment, and 24 (2) is obtained from a medical professional or 25 medical-care institution, from the individual, or from the 26 individual's spouse, parent or legal guardian. 27 (S) "Person" means any natural person, corporation, 28 association, partnership or other legal entity. 29 (T) "Personal information" means any individually 30 identifiable information gathered in connection with an 31 insurance transaction from which judgments can be made about 32 an individual's character, habits, avocations, finances, 33 occupation, general reputation, credit, health or any other 34 personal characteristics. "Personal information" includes an -7- LRB9003688JSgc 1 individual's name and address and "medical-record 2 information" but does not include "privileged information". 3 (U) "Policyholder" means any person who: 4 (1) in the case of individual property or casualty 5 insurance, is a present named insured; 6 (2) in the case of individual life, health or disability 7 insurance, is a present policyowner; or 8 (3) in the case of group insurance which is individually 9 underwritten, is a present group certificateholder. 10 (V) "Pretext interview" means an interview whereby a 11 person, in an attempt to obtain information about a natural 12 person, performs one or more of the following acts: 13 (1) pretends to be someone he or she is not, 14 (2) pretends to represent a person he or she is not in 15 fact representing, 16 (3) misrepresents the true purpose of the interview, or 17 (4) refuses to identify himself or herself upon request. 18 (W) "Privileged information" means any individually 19 identifiable information that: (1) relates to a claim for 20 insurance benefits or a civil or criminal proceeding 21 involving an individual, and (2) is collected in connection 22 with or in reasonable anticipation of a claim for insurance 23 benefits or civil or criminal proceeding involving an 24 individual; provided, however, information otherwise meeting 25 the requirements of this subsection shall nevertheless be 26 considered "personal information" under this Article if it is 27 disclosed in violation of Section 1014 of this Article. 28 (X) "Residual market mechanism" means an association, 29 organization or other entity described in Article XXXIII of 30 this Act, or Section 7-501 of "The Illinois Vehicle Code". 31 (Y) "Termination of insurance coverage" or "termination 32 of an insurance policy" means either a cancellation or 33 nonrenewal of an insurance policy, in whole or in part, for 34 any reason other than the failure to pay a premium as -8- LRB9003688JSgc 1 required by the policy. 2 (Z) "Unauthorized insurer" means an insurance institution 3 that has not been granted a certificate of authority by the 4 Director to transact the business of insurance in this State. 5 (Source: P.A. 82-108.) 6 Section 10. The Comprehensive Health Insurance Plan Act 7 is amended by changing Section 8 as follows: 8 (215 ILCS 105/8) (from Ch. 73, par. 1308) 9 Sec. 8. Minimum benefits. 10 a. Availability. The Plan shall offer in an annually 11 renewable policy major medical expense coverage to every 12 eligible person who is not eligible for Medicare. Major 13 medical expense coverage offered by the Plan shall pay an 14 eligible person's covered expenses, subject to limit on the 15 deductible and coinsurance payments authorized under 16 paragraph (4) of subsection d of this Section, up to a 17 lifetime benefit limit of $500,000 per covered individual. 18 The maximum limit under this subsection shall not be altered 19 by the Board, and no actuarial equivalent benefit may be 20 substituted by the Board. Any person who otherwise would 21 qualify for coverage under the Plan, but is excluded because 22 he or she is eligible for Medicare, shall be eligible for any 23 separate Medicare supplement policy which the Board may 24 offer. 25 b. Covered expenses. Covered expenses shall be limited 26 to the reasonable and customary charge, including negotiated 27 fees, in the locality for the following services and articles 28 when medically necessary and prescribed by a person licensed 29 and practicing within the scope of his or her profession as 30 authorized by State law: 31 (1) Hospital room and board and any other hospital 32 services, except that inpatient hospitalization for the -9- LRB9003688JSgc 1 treatment of mental and emotional disorders shall only be 2 covered for a maximum of 45 days in a calendar year. 3 (2) Professional services for the diagnosis or 4 treatment of injuries, illnesses or conditions, other 5 than dental, or outpatient mental as described in 6 paragraph (17), which are rendered by a physician or 7 chiropractor, or by other licensed professionals at the 8 physician's or chiropractor's direction. 9 (3) If surgery has been recommended, a second 10 opinion may be required. The charge for a second opinion 11 as to whether the surgery is required will be paid in 12 full without regard to deductible or co-payment 13 requirements. If the second opinion differs from the 14 first, the charge for a third opinion, if desired, will 15 also be paid in full without regard to deductible or 16 co-payment requirements. Regardless of whether the 17 second opinion or third opinion confirms the original 18 recommendation, it is the patient's decision whether to 19 undergo surgery. 20 (4) Drugs requiring a physician's or other legally 21 authorized prescription. 22 (5) Skilled nursing care provided in a skilled 23 nursing facility for not more than 120 days in a calendar 24 year, provided the service commences within 14 days 25 following a confinement of at least 3 consecutive days in 26 a hospital for the same condition. 27 (6) Services of a home health agency in accord with 28 a home health care plan, up to a maximum of 270 visits 29 per year. 30 (7) Services of a licensed hospice for not more 31 than 180 days during a policy year. 32 (8) Use of radium or other radioactive materials. 33 (9) Oxygen. 34 (10) Anesthetics. -10- LRB9003688JSgc 1 (11) Orthoses and prostheses other than dental. 2 (12) Rental or purchase in accordance with Board 3 policies or procedures of durable medical equipment, 4 other than eyeglasses or hearing aids, for which there is 5 no personal use in the absence of the condition for which 6 it is prescribed. 7 (13) Diagnostic x-rays and laboratory tests. 8 (14) Oral surgery for excision of partially or 9 completely unerupted impacted teeth or the gums and 10 tissues of the mouth, when not performed in connection 11 with the routine extraction or repair of teeth, and oral 12 surgery and procedures, including orthodontics and 13 prosthetics necessary for craniofacial or maxillofacial 14 conditions and to correct congenital defects or injuries 15 due to accident. 16 (15) Physical, speech, and functional occupational 17 therapy as medically necessary and provided by 18 appropriate licensed professionals. 19 (16) Transportation provided by a licensed 20 ambulance service to the nearest health care facility 21 qualified to treat the illness, injury or condition, 22 subject to the provisions of the Emergency Medical 23 Systems (EMS) Act. 24 (17) The first 50 professional outpatient visits 25 for diagnosis and treatment of mental and emotional 26 disorders rendered during the year, up to a maximum of 27 $80 per visit. 28 (18) Human organ or tissue transplants specified by 29 the Board that are performed at a hospital designated by 30 the Board as a participating transplant center for that 31 specific organ or tissue transplant. 32 (19) Naprapathic services, as appropriate, provided 33 by a licensed naprapathic practitioner. 34 c. Exclusion. Covered expenses of the Plan shall not -11- LRB9003688JSgc 1 include the following: 2 (1) Any charge for treatment for cosmetic purposes 3 other than for reconstructive surgery when the service is 4 incidental to or follows surgery resulting from injury, 5 sickness or other diseases of the involved part or 6 surgery for the repair or treatment of a congenital 7 bodily defect to restore normal bodily functions. 8 (2) Any charge for care that is primarily for rest, 9 custodial, educational, or domiciliary purposes. 10 (3) Any charge for services in a private room to 11 the extent it is in excess of the institution's charge 12 for its most common semiprivate room, unless a private 13 room is prescribed as medically necessary by a physician. 14 (4) That part of any charge for room and board or 15 for services rendered or articles prescribed by a 16 physician, dentist, or other health care personnel that 17 exceeds the reasonable and customary charge in the 18 locality or for any services or supplies not medically 19 necessary for the diagnosed injury or illness. 20 (5) Any charge for services or articles the 21 provision of which is not within the scope of licensure 22 of the institution or individual providing the services 23 or articles. 24 (6) Any expense incurred prior to the effective 25 date of coverage by the Plan for the person on whose 26 behalf the expense is incurred. 27 (7) Dental care, dental surgery, dental treatment 28 or dental appliances, except as provided in paragraph 29 (14) of subsection b of this Section. 30 (8) Eyeglasses, contact lenses, hearing aids or 31 their fitting. 32 (9) Illness or injury due to (A) war or any acts of 33 war; (B) commission of, or attempt to commit, a felony; 34 or (C) aviation activities, except when traveling as a -12- LRB9003688JSgc 1 fare-paying passenger on a commercial airline. 2 (10) Services of blood donors and any fee for 3 failure to replace blood provided to an eligible person 4 each policy year. 5 (11) Personal supplies or services provided by a 6 hospital or nursing home, or any other nonmedical or 7 nonprescribed supply or service. 8 (12) Routine maternity charges for a pregnancy, 9 except where added as optional coverage with payment of 10 an additional premium for pregnancy resulting from 11 conception occurring after the effective date of the 12 optional coverage. 13 (13) Expenses of obtaining an abortion, induced 14 miscarriage or induced premature birth unless, in the 15 opinion of a physician, those procedures are necessary 16 for the preservation of life of the woman seeking such 17 treatment, or except an induced premature birth intended 18 to produce a live viable child and the procedure is 19 necessary for the health of the mother or unborn child. 20 (14) Any expense or charge for services, drugs, or 21 supplies that are: (i) not provided in accord with 22 generally accepted standards of current medical practice; 23 (ii) for procedures, treatments, equipment, transplants, 24 or implants, any of which are investigational, 25 experimental, or for research purposes; (iii) 26 investigative and not proven safe and effective; or (iv) 27 for, or resulting from, a gender transformation 28 operation. 29 (15) Any expense or charge for routine physical 30 examinations or tests. 31 (16) Any expense for which a charge is not made in 32 the absence of insurance or for which there is no legal 33 obligation on the part of the patient to pay. 34 (17) Any expense incurred for benefits provided -13- LRB9003688JSgc 1 under the laws of the United States and this State, 2 including Medicare and Medicaid and other medical 3 assistance, military service-connected disability 4 payments, medical services provided for members of the 5 armed forces and their dependents or employees of the 6 armed forces of the United States, and medical services 7 financed on behalf of all citizens by the United States. 8 (18) Any expense or charge for in vitro 9 fertilization, artificial insemination, or any other 10 artificial means used to cause pregnancy. 11 (19) Any expense or charge for oral contraceptives 12 used for birth control or any other temporary birth 13 control measures. 14 (20) Any expense or charge for sterilization or 15 sterilization reversals. 16 (21) Any expense or charge for weight loss 17 programs, exercise equipment, or treatment of obesity, 18 except when certified by a physician as morbid obesity 19 (at least 2 times normal body weight). 20 (22) Any expense or charge for acupuncture 21 treatment unless used as an anesthetic agent for a 22 covered surgery. 23 (23) Any expense or charge for or related to organ 24 or tissue transplants other than those performed at a 25 hospital with a Board approved organ transplant program 26 that has been designated by the Board as a preferred or 27 exclusive provider organization for that specific organ 28 or tissue. 29 (24) Any expense or charge for procedures, 30 treatments, equipment, or services that are provided in 31 special settings for research purposes or in a controlled 32 environment, are being studied for safety, efficiency, 33 and effectiveness, and are awaiting endorsement by the 34 appropriate national medical speciality college for -14- LRB9003688JSgc 1 general use within the medical community. 2 d. Premiums, deductibles, and coinsurance. 3 (1) Premiums charged for coverage issued by the 4 Plan may not be unreasonable in relation to the benefits 5 provided, the risk experience and the reasonable expenses 6 of providing the coverage. 7 (2) Separate schedules of premium rates based on 8 sex, age and geographical location shall apply for 9 individual risks. 10 (3) The Plan may provide for separate premium rates 11 for optional family coverage for the spouse or one or 12 more dependents of any person eligible to be insured 13 under the Plan who is also the oldest adult member of the 14 family and remains continuously enrolled in the Plan as 15 the primary enrollee. The rates shall be such percentage 16 of the applicable individual Plan rate as the Board, in 17 accordance with appropriate actuarial principles, shall 18 establish for each spouse or dependent. 19 (4) The Board shall determine, in accordance with 20 appropriate actuarial principles, the average rates that 21 individual standard risks in this State are charged by at 22 least 5 of the largest insurers providing coverage to 23 residents of Illinois that is substantially similar to 24 the Plan coverage. In the event at least 5 insurers do 25 not offer substantially similar coverage, the rates shall 26 be established using reasonable actuarial techniques and 27 shall reflect anticipated claims experience, expenses, 28 and other appropriate risk factors relating to the Plan. 29 Rates for Plan coverage shall be 135% of rates so 30 established as applicable for individual standard risks; 31 provided, however, if after determining that the 32 appropriations made pursuant to Section 12 of this Act 33 are insufficient to ensure that total income from all 34 sources will equal or exceed the total incurred costs and -15- LRB9003688JSgc 1 expenses for the current number of enrollees, the board 2 shall raise premium rates above this 135% standard to the 3 level it deems necessary to ensure the financial solvency 4 of the Plan for enrollees already in the Plan. All rates 5 and rate schedules shall be submitted to the board for 6 approval. 7 (5) The Plan coverage defined in Section 6 shall 8 provide for a choice of deductibles as authorized by the 9 Board per individual per annum. If 2 individual members 10 of a family satisfy the same applicable deductibles, no 11 other member of that family who is eligible for coverage 12 under the Plan shall be required to meet any deductibles 13 for the balance of that calendar year. The deductibles 14 must be applied first to the authorized amount of covered 15 expenses incurred by the covered person. A mandatory 16 coinsurance requirement shall be imposed at the rate 17 authorized by the Board in excess of the mandatory 18 deductible, the coinsurance in the aggregate not to 19 exceed such amounts as are authorized by the Board per 20 annum. At its discretion the Board may, however, offer 21 catastrophic coverages or other policies that provide for 22 larger deductibles with or without coinsurance 23 requirements. The deductibles and coinsurance factors 24 may be adjusted annually according to the Medical 25 Component of the Consumer Price Index. 26 (6) The Plan may provide for and employ cost 27 containment measures and requirements including, but not 28 limited to, preadmission certification, second surgical 29 opinion, concurrent utilization review programs, 30 individual case management, preferred provider 31 organizations, and other cost effective arrangements for 32 paying for covered expenses. 33 e. Scope of coverage. Except as provided in subsection 34 c of this Section, if the covered expenses incurred by the -16- LRB9003688JSgc 1 eligible person exceed the deductible for major medical 2 expense coverage in a calendar year, the Plan shall pay at 3 least 80% of any additional covered expenses incurred by the 4 person during the calendar year. 5 f. Preexisting conditions. 6 (1) Six months: Plan coverage shall exclude charges 7 or expenses incurred during the first 6 months following 8 the effective date of coverage as to any condition if: 9 (a) the condition had manifested itself within the 6 10 month period immediately preceding the effective date of 11 coverage in such a manner as would cause an ordinarily 12 prudent person to seek diagnosis, care or treatment; or 13 (b) medical advice, care or treatment was recommended or 14 received within the 6 month period immediately preceding 15 the effective date of coverage. 16 (2) (Blank). 17 (3) Waiver: The preexisting condition exclusions as 18 set forth in paragraph (1) of this subsection shall be 19 waived to the extent to which the eligible person: (a) 20 has satisfied similar exclusions under any prior health 21 insurance policy or plan that was involuntarily 22 terminated; (b) is ineligible for any continuation or 23 conversion rights that would continue or provide 24 substantially similar coverage following that 25 termination; and (c) has applied for Plan coverage not 26 later than 30 days following the involuntary termination. 27 No policy or plan shall be deemed to have been 28 involuntarily terminated if the master policyholder or 29 other controlling party elected to change insurance 30 coverage from one company or plan to another even if that 31 decision resulted in a discontinuation of coverage for 32 any individual under the plan, either totally or for any 33 medical condition. For each eligible person who qualifies 34 for and elects this waiver, there shall be added to each -17- LRB9003688JSgc 1 payment of premium, on a prorated basis, a surcharge of 2 up to 10% of the otherwise applicable annual premium for 3 as long as that individual's coverage under the Plan 4 remains in effect or 60 months, whichever is less. 5 g. Other sources primary; nonduplication of benefits. 6 (1) The Plan shall be the last payor of benefits 7 whenever any other benefit or source of third party 8 payment is available. Subject to the provisions of 9 subsection e of Section 7, benefits otherwise payable 10 under Plan coverage shall be reduced by all amounts paid 11 or payable by Medicare or any other government program or 12 through any health insurance or other health benefit 13 plan, whether insured or otherwise, or through any third 14 party liability, settlement, judgment, or award, 15 regardless of the date of the settlement, judgment, or 16 award, whether the settlement, judgment, or award is in 17 the form of a contract, agreement, or trust on behalf of 18 a minor or otherwise and whether the settlement, 19 judgment, or award is payable to the covered person, his 20 or her dependent, estate, personal representative, or 21 guardian in a lump sum or over time, and by all hospital 22 or medical expense benefits paid or payable under any 23 worker's compensation coverage, automobile medical 24 payment, or liability insurance, whether provided on the 25 basis of fault or nonfault, and by any hospital or 26 medical benefits paid or payable under or provided 27 pursuant to any State or federal law or program. 28 (2) The Plan shall have a cause of action against 29 any covered person or any other person or entity for the 30 recovery of any amount paid to the extent the amount was 31 for treatment, services, or supplies not covered in this 32 Section or in excess of benefits as set forth in this 33 Section. 34 (3) Whenever benefits are due from the Plan because -18- LRB9003688JSgc 1 of sickness or an injury to a covered person resulting 2 from a third party's wrongful act or negligence and the 3 covered person has recovered or may recover damages from 4 a third party or its insurer, the Plan shall have the 5 right to reduce benefits or to refuse to pay benefits 6 that otherwise may be payable by the amount of damages 7 that the covered person has recovered or may recover 8 regardless of the date of the sickness or injury or the 9 date of any settlement, judgment, or award resulting from 10 that sickness or injury. 11 During the pendency of any action or claim that is 12 brought by or on behalf of a covered person against a 13 third party or its insurer, any benefits that would 14 otherwise be payable except for the provisions of this 15 paragraph (3) shall be paid if payment by or for the 16 third party has not yet been made and the covered person 17 or, if incapable, that person's legal representative 18 agrees in writing to pay back promptly the benefits paid 19 as a result of the sickness or injury to the extent of 20 any future payments made by or for the third party for 21 the sickness or injury. This agreement is to apply 22 whether or not liability for the payments is established 23 or admitted by the third party or whether those payments 24 are itemized. 25 Any amounts due the plan to repay benefits may be 26 deducted from other benefits payable by the Plan after 27 payments by or for the third party are made. 28 (4) Benefits due from the Plan may be reduced or 29 refused as an offset against any amount otherwise 30 recoverable under this Section. 31 h. Right of subrogation; recoveries. 32 (1) Whenever the Plan has paid benefits because of 33 sickness or an injury to any covered person resulting 34 from a third party's wrongful act or negligence, or for -19- LRB9003688JSgc 1 which an insurer is liable in accordance with the 2 provisions of any policy of insurance, and the covered 3 person has recovered or may recover damages from a third 4 party that is liable for the damages, the Plan shall have 5 the right to recover the benefits it paid from any 6 amounts that the covered person has received or may 7 receive regardless of the date of the sickness or injury 8 or the date of any settlement, judgment, or award 9 resulting from that sickness or injury. The Plan shall 10 be subrogated to any right of recovery the covered person 11 may have under the terms of any private or public health 12 care coverage or liability coverage, including coverage 13 under the Workers' Compensation Act or the Workers' 14 Occupational Diseases Act, without the necessity of 15 assignment of claim or other authorization to secure the 16 right of recovery. To enforce its subrogation right, the 17 Plan may (i) intervene or join in an action or proceeding 18 brought by the covered person or his personal 19 representative, including his guardian, conservator, 20 estate, dependents, or survivors, against any third party 21 or the third party's insurer that may be liable or (ii) 22 institute and prosecute legal proceedings against any 23 third party or the third party's insurer that may be 24 liable for the sickness or injury in an appropriate court 25 either in the name of the Plan or in the name of the 26 covered person or his personal representative, including 27 his guardian, conservator, estate, dependents, or 28 survivors. 29 (2) If any action or claim is brought by or on 30 behalf of a covered person against a third party or the 31 third party's insurer, the covered person or his personal 32 representative, including his guardian, conservator, 33 estate, dependents, or survivors, shall notify the Plan 34 by personal service or registered mail of the action or -20- LRB9003688JSgc 1 claim and of the name of the court in which the action or 2 claim is brought, filing proof thereof in the action or 3 claim. The Plan may, at any time thereafter, join in the 4 action or claim upon its motion so that all orders of 5 court after hearing and judgment shall be made for its 6 protection. No release or settlement of a claim for 7 damages and no satisfaction of judgment in the action 8 shall be valid without the written consent of the Plan to 9 the extent of its interest in the settlement or judgment 10 and of the covered person or his personal representative. 11 (3) In the event that the covered person or his 12 personal representative fails to institute a proceeding 13 against any appropriate third party before the fifth 14 month before the action would be barred, the Plan may, in 15 its own name or in the name of the covered person or 16 personal representative, commence a proceeding against 17 any appropriate third party for the recovery of damages 18 on account of any sickness, injury, or death to the 19 covered person. The covered person shall cooperate in 20 doing what is reasonably necessary to assist the Plan in 21 any recovery and shall not take any action that would 22 prejudice the Plan's right to recovery. The Plan shall 23 pay to the covered person or his personal representative 24 all sums collected from any third party by judgment or 25 otherwise in excess of amounts paid in benefits under the 26 Plan and amounts paid or to be paid as costs, attorneys 27 fees, and reasonable expenses incurred by the Plan in 28 making the collection or enforcing the judgment. 29 (4) In the event that a covered person or his 30 personal representative, including his guardian, 31 conservator, estate, dependents, or survivors, recovers 32 damages from a third party for sickness or injury caused 33 to the covered person, the covered person or the personal 34 representative shall pay to the Plan from the damages -21- LRB9003688JSgc 1 recovered the amount of benefits paid or to be paid on 2 behalf of the covered person. 3 (5) When the action or claim is brought by the 4 covered person alone and the covered person incurs a 5 personal liability to pay attorney's fees and costs of 6 litigation, the Plan's claim for reimbursement of the 7 benefits provided to the covered person shall be the full 8 amount of benefits paid to or on behalf of the covered 9 person under this Act less a pro rata share that 10 represents the Plan's reasonable share of attorney's fees 11 paid by the covered person and that portion of the cost 12 of litigation expenses determined by multiplying by the 13 ratio of the full amount of the expenditures to the full 14 amount of the judgement, award, or settlement. 15 (6) In the event of judgment or award in a suit or 16 claim against a third party or insurer, the court shall 17 first order paid from any judgement or award the 18 reasonable litigation expenses incurred in preparation 19 and prosecution of the action or claim, together with 20 reasonable attorney's fees. After payment of those 21 expenses and attorney's fees, the court shall apply out 22 of the balance of the judgment or award an amount 23 sufficient to reimburse the Plan the full amount of 24 benefits paid on behalf of the covered person under this 25 Act, provided the court may reduce and apportion the 26 Plan's portion of the judgement proportionate to the 27 recovery of the covered person. The burden of producing 28 evidence sufficient to support the exercise by the court 29 of its discretion to reduce the amount of a proven charge 30 sought to be enforced against the recovery shall rest 31 with the party seeking the reduction. The court may 32 consider the nature and extent of the injury, economic 33 and non-economic loss, settlement offers, comparative 34 negligence as it applies to the case at hand, hospital -22- LRB9003688JSgc 1 costs, physician costs, and all other appropriate costs. 2 The Plan shall pay its pro rata share of the attorney 3 fees based on the Plan's recovery as it compares to the 4 total judgment. Any reimbursement rights of the Plan 5 shall take priority over all other liens and charges 6 existing under the laws of this State with the exception 7 of any attorney liens filed under the Attorneys Lien Act. 8 (7) The Plan may compromise or settle and release 9 any claim for benefits provided under this Act or waive 10 any claims for benefits, in whole or in part, for the 11 convenience of the Plan or if the Plan determines that 12 collection would result in undue hardship upon the 13 covered person. 14 (Source: P.A. 89-486, eff. 6-21-96.)