Serving the Church Worldwide Medicare as Secondary Payer and Diocesan Priests 2008 Whitepaper Mark E. Chopko, Esq., Partner Nonprofit & Religious Practice Stradley Ronon Stevens & Young [email protected] James Podheiser, Esq., Partner Stradley Ronon Stevens & Young [email protected] Philip Bushnell, Area Executive Vice President Managing Director, Religious/Nonprofit Practice Group Gallagher Benefit Services, Inc. [email protected] For further information, contact: [email protected] or Toll-Free (888) 285-5106, ext. 3898 ARTHUR J. GA LL ag HER & CO. FOUNDED IN 1927 Q\BSD\NP\WhitePaper\MSP and Priests.WhitePaper.indd ABSTRACT A concern of Catholic dioceses is the provision of medical benefits may not offer incentives to Medicare – eligible employees to for those clerics, age 65 and older, still in active ministry. Under terminate enrollment in a plan or not to enroll in a plan that is the Code of Canon Law, a bishop has what has been termed by considered primary to Medicare. A series of specific regulations commentators a fiduciary obligation to care for his priests, lay out additional considerations. There is no exception to these including assurances of a pension and medical insurance. How rules for religious institutions. that obligation is discharged is not specified, and both the There are, however, some alternatives. Where persons are Commentary on the Code and US canonical Norms contemplate “employed” by entities that are not owned in common (as use of government programs to fulfill this obligation. If priests defined under the law), a group plan may seek an exception from age 65 and older are under a group health plan of an employer the Medicare rules from the government for all entities that fall (parish or diocese) that has 20 or more employees, the primary below the 20 employee threshold. In addition, a plan that payer for medical benefits is the plan and Medicare is a secondary covered only “self-employed” persons would not be a group payer for services covered under the plan. Although Church health plan and not be subject to the Medicare secondary payer entities speak about “active” versus “retired” clergy, the civil law rules. As might be expected, there are specific regulations that looks to whether a person has “current employment status.” A govern both of these arrangements to avoid having them be a priest would be considered in this status if he receives subterfuge to gain access to Medicare as the primary payer. remuneration “for [current] services rendered.” Even persons considered self-employed may have this status by virtue of their Another alternative, as further explained in an addendum to this association with an “employer” in a “business” relationship. paper, could be to offer an alternative plan option, in addition to the core plan, to all employees. This plan could have minimal Under the law, group health plan of an employer may not take hospital benefits, be lower priced, and if elected by an active into account the Medicare entitlement of an individual and must employee over age 65, including diocesan priests, could allow provide the same benefits under the same conditions to all Medicare to pay as the secondary payer. participants regardless of age. Moreover, an employer or insurer Gallagher Religious Practice Group WHITE PAPER 3 Law Offices Stradley, Ronon, Stevens & Young,LLP 2600 One Commerce Square Philadelphia, Pennsylvania 19103-7098 (215) 564-8000 MEDICARE AS SECONDARY PAYER AND DIOCESAN PRIESTS Pursuant to Section 1862(b)(1)(A) of the Social Security Act,1 matters of assignments to work or service.6 For his part, the coverage for services provided under the Medicare health Bishop is obliged to provide for the decent support of his priest, insurance program shall be secondary to group health plan including a “remuneration and support”7 and assurances of coverage provided to individuals age 65 or older by virtue of pension and medical insurance.8 All priests in “good standing” are current employment. The pertinent provisions of the Social entitled to this support according to their condition and need.9 Security Act, and the implementing regulations2 promulgated by the Center for Medicare and Medicaid Services (“CMS”),3 shall be Although under Church law a bishop has a solemn obligation to referred to in this paper, collectively, as “MSP,” or the “MSP see that his priests are sustained and supported, how that rules.”4 obligation is undertaken and the civil law consequences are not specified. Indeed, experience shows that priests may be treated The goal of this paper is to summarize the MSP rules and their differently under the civil law for different purposes. A priest is impact on Catholic dioceses and diocesan priests who are in the statutorily “self-employed” for purposes of Social Security, but active service of their dioceses at and after age 65. It begins with may receive a “W-2” as “employee” for purposes of reporting his a brief discussion of the relationship between a diocesan Bishop income to the Internal Revenue Service. The W-2 may be provided and his Priests. It then moves forward to discuss the particulars of by his parish (as place of ministry and the source of the funds Medicare issue in the context of that relationship. While it is not a used to meet the payroll) or the diocese. For liability purposes, purpose of this paper to advocate a position which any diocese when cases charge employment-related supervisory torts (e.g., should take with respect to the health insurance coverage of their negligent supervision of a priest), that kind of claim could only be active priests, issues which are subject to varying interpretations stated against a bishop and a diocese, since regardless of where will be highlighted and assessed in a fair and objective manner. his salary and benefits arise or how they are reported, the priest is only supervised by a bishop. The case law recognizes this This paper will not summarize the sanctions which may be distinction.10 And, an “active diocesan priest” may have his salary imposed for failure to comply with the MSP rules, although it paid from sources other than the diocese, for example, if he is a should be noted that employers are subject to the assessment of “graduate student” (stipend), professor (university), or parochial significant civil penalties by both the Internal Revenue Service and minister (parish). The source of funds is not determinative for CMS for noncompliance, as well as legal action by CMS for the fixing the ecclesial nature of the bishop-priest relationship, or recovery of two times the amount improperly paid by Medicare dictating the civil consequences of that relationship. which should have been covered by the employer’s health insurance plan. Canon 281, Section 2 addresses the specific point about insurances: “Provision must also be made so that [priests] Summary of Bishop-Priest Relationship and Obligation of Support possess that social assistance which provides for their needs suitably if they suffer from illness, incapacity, or old age.” The By virtue of his incardination into a diocese, the Code of Canon Code does not say “who” or “what” is the source of those Law binds the priest in a unique relationship to a bishop. This is supports or insurances, and the Commentary on the Code of not a secular employment relationship, or even a “master- Canon Law and the corresponding United States canonical Norms servant” relationship, but a broader and more intimate both mention use of government programs to fulfill this relationship often analogized to a familial relationship, based on obligation.11 Receipt of government assistance (on the same trust and a shared ministry through sacred orders. Commentators terms as other citizens) is specifically contemplated and would on the Canon Law of the Catholic Church have said that the not affect the priest’s status as a priest in good standing with a relationship is a fiduciary one: The priest promises obedience and diocese. adherence to the policies and directives of his bishop,5 including © 2008 Arthur J. Gallagher Risk Management Services, Inc. 4 2008 - Medicare as Second Payer and Diocesan Priests We draw from this that, although under the canon law, a bishop, . terminating coverage because the individual has become by default, would have the obligation to provide for the support, entitled to Medicare;22 even into old age, of his priests, there is neither a canonical . imposing limitations on benefits for an individual entitled to barrier to nor a directive specifying placement of a priest under a Medicare that do not apply to others enrolled in the GHP, diocesan versus a parish-based benefit program versus under such as providing less comprehensive coverage, charging Medicare. Thus, we turn to the legal discussion to illuminate the higher deductibles or coinsurance, or reducing benefits;23 solution. charging higher premiums to individuals entitled to Summary of MSP12 Medicare, or requiring such individuals to contribute a greater share of a uniform premium;24 and Medicare is the secondary payer for services covered under group health plans (“GHPs”) of employers that employ at least 20 . providing misleading or incomplete information that employees and that cover Medicare beneficiaries age 65 or older would have the effect of inducing an individual entitled to who are covered under the GHP by virtue of the individuals’ Medicare reject the GHP.25 current employment status with an employer.13 In addition, GHPs The above rules also apply to a GHP that is a