The Office of General Counsel issued the following opinion on December 29, 2003, representing the position of the New York State Insurance Department.

Re: Family Deductibles for No-Fault Insurance.

Question Presented:

Should ABC Health Plan provide coverage, under the terms of its policy language, as a secondary insurer for medical expenses resulting from an automobile accident when the insured’s corresponding No-Fault policy contains language that includes a family deductible for covered medical expenses?


ABC Health Plan should provide coverage for such expenses in accordance with the provisions of its health insurance contract.


The inquirer stated that he was involved in an automobile accident and has been receiving medical care that is covered by No-Fault insurance. However, there is a $200 deductible on the No-Fault insurance policy. The inquirer also has health insurance coverage through ABC Health Plan and would like to know whether his health plan should cover the $200 deductible for medical expenses that are not covered by the No-Fault insurer. There is no applicable deductible under the health insurance contract.


Generally, a health insurance policy or contract is required to pay medical expenses arising from any accident involving the insured. However, N.Y. Comp. Codes R. & Regs. tit. 11, § 52.16(c) (Regulation 62) provides the permissible exclusion for No-Fault benefits that may be included in a health insurance policy or contract. It provides, in pertinent part, as follows:

(c) No policy shall limit or exclude coverage by type of illness, accident, treatment or medical condition, except as follows: . . . (8) treatment provided in a government hospital; benefits provided under Medicare or other governmental program (except Medicaid), any State or Federal workers’ compensation, employers’ liability or occupational disease law; benefits to the extent provided for any loss or portion thereof for which mandatory automobile no-fault benefits are recovered or recoverable . . . (emphasis supplied)

The inquirer’s health insurance contract does not contain a No-Fault exclusion, but includes a coordination of benefits provision, which provides as follows:

Section 9: Coordinating Benefits with other coverage. You must tell us if you are covered or a covered family member have coverage under another group health plan or have automobile insurance that pays health care expenses without regard to fault. This is called "double coverage." When you have double coverage, one plan normally pays its benefits in full as the primary payer and the other plan pays a reduced benefit as the secondary payer. We, like other insurers, determine which coverage is primary according to the National Association of Insurance Commissioners’ guidelines. When we are the primary payer, we will pay the benefits described in this brochure. When we are the secondary payer, we will determine our allowance. After the primary plan pays, we will pay what is left of our allowance, up to our regular benefit. We will not pay more than our allowance.1

Accordingly, the express language of the insurance contract contemplates coverage by ABC Health Plan for medical expenses that are not paid by the No-Fault insurer. Consequently, ABC Health Plan should provide coverage for such expenses in accordance with the provisions of its health insurance contract. Please note that there will be coverage for such expenses, unless another provision in the contract applies that would bar payment. For example, the contract contains an exclusion for services provided by non-Plan providers, except for authorized referrals or emergencies.2 Thus, if a non-Plan provider performed the services in question, and the exception does not apply, there will be no coverage. Additionally, pursuant to the contract, any payments made by ABC Health Plan would be subject to the applicable co-payments.3

This opinion is strictly limited to an analysis of the health insurance contract in question and the specific factual scenario specified herein.

For further information you may contact Senior Attorney Pascale Joasil at the New York City Office.

1 See ABC Health Insurance Contract at Page 42.

2 See ABC Health Insurance Contract at Page 38.

3 See ABC Health Insurance Contract at Page 12.