ERISA and Health Insurance Subrogation - In All 50 States - 3rd Edition

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ISBN-13: 978-1-57823-247-5

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Book Overview

Table of Contents

Acknowledgments

About the Author

Notice

How to Use this Book

Table of Contents

Introduction

Chapter 1

Subrogation Generally

§ 1.01 Elements
§ 1.02 Origins of Subrogation
§ 1.03 Types of Subrogation

[1] Contractual (Conventional) Subrogation
[2] Equitable (Legal) Subrogation

[a] Difference between Subrogation and Assignment
[b] Roles of Equity

[3] Statutory Subrogation

[a] Workers’ Compensation
[b] Hospital Liens
[c] Medicare
[d] Medicaid
[e] Interplay between Workers’ Compensation and Medicare/Medicaid
[f] Federal Employees Health Benefit Act (FEHBA)
[g] Other Statutory Subrogation

§ 1.04 Purposes of Subrogation
§ 1.05 Anti-Subrogation Arguments

Chapter 2

Insured ERISA-Covered Employee Welfare Benefit Plans

§ 2.01 Generally
§ 2.02 Types of Health Plans

[1] Indemnity Plans
[2] Preferred Provider Organization (PPO)
[3] Health Maintenance Organization (HMO)
[4] Individual Practice Association (IPA)
[5] Point-of-Service Plan (POS)

§ 2.03 Multiple Employer Plans

[1] Single-Employer Plans
[2] Multi-Employer Plans
[3] Multiple-Employer Plans (MEWAs)

§ 2.04 Subrogation and Reimbursement Rights

[1] Subrogation Rights
[2] Reimbursement Rights
[3] Standing in the Shoes of the Insured
[4] Indemnity versus Investment Contracts
[5] No Multiple Recoveries
[6] Subrogation Arises With Payment
[7] Subrogation Against Municipalities

§ 2.05 Requirement to Join Subrogated Party

[1] Wis. Stat. § 803.03 – Claims Arising by Subrogation
[2] Is the Subrogated Party a Plaintiff, Defendant or Other?
[3] The Reverse – Must the Subrogated Party Join the Insured?
[4] The Need to Participate
[5] What Do You Do If You Are Not Joined?

§ 2.06 Notice to Subrogated Parties
§ 2.07 What Happens if the Plaintiff Loses at Trial?
§ 2.08 Made Whole Doctrine and Non-ERISA Health Plans

[1] Garrity v. Rural Mutual Ins. Co
[2] Rimes v. State Farm Mutual Auto Ins. Co
[3] What Does it Mean to be “Made Whole”?

[a] Basic Test
[b] Contributory Negligence

[4] All Damages
[5] Attorney’s Fees
[6] Where Plan Specifically Negates Made Whole Doctrine

§ 2.09 Common Fund Doctrine and Non-ERISA Health Plans
§ 2.10 Statute of Limitations Issues
§ 2.11 Indemnification Agreements
§ 2.12 Subrogated Party on Settlement Check: Is It Enough?
§ 2.13 Subrogating Against Under/Uninsured Motorist Carriers

[1] “?A Responsible Third Party?”
[2] “?Any Party Who May Be Liable?”
[3] “?Caused, or Is Liable For?”
[4] Collateral Source Rules
[5] Anti-Subrogation Laws
[6] Summary

Chapter 3

Health Insurance Subrogation In All 50 States

Introduction

§ 3.01 Alabama
§ 3.02 Alaska
§ 3.03 Arizona
§ 3.04 Arkansas
§ 3.05 California
§ 3.06 Colorado
§ 3.07 Connecticut
§ 3.08 Delaware
§ 3.09 District of Columbia
§ 3.10 Florida
§ 3.11 Georgia
§ 3.12 Hawai’i
§ 3.13 Idaho
§ 3.14 Illinois
§ 3.15 Indiana
§ 3.16 Iowa
§ 3.17 Kansas
§ 3.18 Kentucky
§ 3.19 Louisiana
§ 3.20 Maine
§ 3.21 Maryland
§ 3.22 Massachusetts
§ 3.23 Michigan
§ 3.24 Minnesota
§ 3.25 Mississippi
§ 3.26 Missouri
§ 3.27 Montana
§ 3.28 Nebraska
§ 3.29 Nevada
§ 3.30 New Hampshire
§ 3.31 New Jersey
§ 3.32 New Mexico
§ 3.33 New York
§ 3.34 North Carolina
§ 3.35 North Dakota
§ 3.36 Ohio
§ 3.37 Oklahoma
§ 3.38 Oregon
§ 3.39 Pennsylvania
§ 3.40 Rhode Island
§ 3.41 South Carolina
§ 3.42 South Dakota
§ 3.43 Tennessee
§ 3.44 Texas
§ 3.45 Utah
§ 3.46 Vermont
§ 3.47 Virginia
§ 3.48 Washington
§ 3.49 West Virginia
§ 3.50 Wisconsin
§ 3.51 Wyoming

Chapter 4

Self-Funded, ERISA-Covered Employee Medical Benefit Plan Subrogation

§ 4.01 Introduction to ERISA

[1] History of ERISA
[2] Background
[3] Enactment and Purpose
[4] Scope of ERISA
[5] Definitions – The Language of ERISA
[6] Trust, Contract, and Labor Law Parallels

[a] Trust Law
[b] Contract Law
[c] Labor Law

[7] Federal Common Law

§ 4.02 What is an ERISA Plan?

[1] Self-Funded Plans Versus Insured Plans
[2] Stop-Loss Coverage
[3] General Rule to Determine Whether Plan is ERISA-Covered
[4] Safe Harbor Regulations
[5] Plans Not Subject to ERISA

[a] Government Plans and Church Plans
[b] Trade Association Plans and Employees’ Beneficiary Associations
[c] Plans That Cover Owners Not Employees
[d] Multi-Employer Plans
[e] Entities Not Engaged in Interstate Commerce
[f] Subrogating Insured ERISA-Covered Plans

[6] Other Plans Subject to ERISA

[a] HMO Plans
[b] Plans Administered by Employer
[c] Occupational Accident Plans

[7] What Constitutes the Plan?

[a] Coverage Booklet
[b] Summary Plan Description (SPD)
[c]Wrap Documents

Chapter 5

ERISA Preemption

§ 5.01 Preemption, Saving and Deemer Clauses

[1] Preemption Clause
[2] Saving Clause
[3] Deemer Clause

§ 5.02 Two Types of Preemption - Complete and Conflict

[1] Complete Preemption (Narrow Preemption)
[2] Conflict Preemption (Broad Preemption)

§ 5.03 ERISA Preemption of State Law Where Plan is Insured and Not “Self-Funded”
§ 5.04 When Does State Law “Relate to” an Employee Benefit Plan?
§ 5.05 When Does State Law “Regulate Insurance”?
§ 5.06 Erosion of Preemption

Chapter 6

ERISA and the Made Whole Doctrine

§ 6.01 Introduction
§ 6.02 Made Whole Doctrine as Default Rule
§ 6.03 Applied to Self-Funded Plans
§ 6.04 Doctrine Affected by Reimbursement Provision
§ 6.05 Presumption Against Made Whole Doctrine
§ 6.06 Made Whole Doctrine as Gap Filler
§ 6.07 Effect of Plan Administrator’s Interpretation..
§ 6.08 Made Whole Doctrine Applicable Unless Specifically Negated by Plan Language
§ 6.09 Made Whole Doctrine Under Federal Common Law
§ 6.10 Definition of Made Whole
§ 6.11 Where Beneficiary Violates Plan’s Cooperation Clause
§ 6.12 Made Whole Doctrine Doesn’t Affect Other Duties Under Plan
§ 6.13 Effect of Exclusionary/Excess Language
§ 6.14 Examples of Specific Plan Language
§ 6.15 Treatment of Made Whole Doctrine by Circuit

[1] First Circuit (ME, MA, NH, Puerto Rico, RI)
[2] Second Circuit (NY, CT, VT)
[3] Third Circuit (DE, NJ, PA, Virgin Islands)
[4] Fourth Circuit (MD, NC, SC, VA, WV)
[5] Fifth Circuit (LA, MS, TX)
[6] Sixth Circuit (KY, MI, OH, TN)
[7] Seventh Circuit (IL, IN, WI)
[8] Eighth Circuit (AR, IA, MN, MO, NE, ND, SD)
[9] Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, Mariana Islands)
[10] Tenth Circuit (CO, KS, NM, OK, UT, WY)
[11] Eleventh Circuit (AL, FL, GA)
[12] D.C.Circuit (District of Columbia)

Chapter 7

ERISA and the Common Fund Doctrine

§ 7.01 Introduction
§ 7.02 Plan Language: “Out of Any Monies Recovered” and “All Rights of Recovery”
§ 7.03 “Full Reimbursement” Language
§ 7.04 Absence of Language Exempting Common Fund Doctrine
§ 7.05 Plan Language Clearly Exempts Common Fund Doctrine
§ 7.06 Effect of Plan Administrator’s Interpretation
§ 7.07 Common Fund Doctrine Under Federal Common Law
§ 7.08 Hourly or Contingency Fee?
§ 7.09 Notice of Litigation Requirement
§ 7.10 Who May Raise a Common Fund Claim?
§ 7.11 Treatment of Common Fund Doctrine by Circuit

[1] First Circuit (ME, MA, NH, Puerto Rico, RI)
[2] Second Circuit (NY, CT, VT)
[3] Third Circuit (DE, NJ, PA, Virgin Islands)
[4] Fourth Circuit (MD, NC, SC, VA, WV)
[5] Fifth Circuit (LA, MS, TX)
[6] Sixth Circuit (KY, MI, OH, TN)
[7] Seventh Circuit (IL, IN, WI)
[8] Eighth Circuit (AR, IA, MN, MO, NE, ND, SD)
[9] Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, Mariana Islands)
[10] Tenth Circuit (CO, KS, NM, OK, UT, WY)
[11] Eleventh Circuit (AL, FL, GA)
[12] D.C.Circuit (District of Columbia)

Chapter 8

Rights of Recovery: Subrogation and Reimbursement

§ 8.01 Introduction
§ 8.02 Persons Who Can Pursue Subrogation
§ 8.03 Venue
§ 8.04 Parties Authorized to Bring Action
§ 8.05 Jurisdiction
§ 8.06 Removal
§ 8.07 Problem Circuits
§ 8.08 Abstention
§ 8.09 Intervention

[1] State Court
[2] Federal Court

§ 8.10 ERISA Statutory Authority Subrogation Enforcement
§ 8.11 Rights of Recovery: Subrogation and Reimbursement

[1] Recovery Rights Generally
[2] Plan Language Determines Subrogation Rights
[3] Recovery Rights Under ERISA
[4] Types of Recovery Provisions

[a] Subrogation Provisions
[b] Reimbursement Provisions
[c] Exclusionary Provisions
[d] No Subrogation Language.

[5] Subrogation Receipts and Reimbursement Agreements

[a] Subrogation Agreement Does Not Control
[b] Subrogation Agreement Does Control

[6] Recovery Priorities

[a] Elements of Damages Recovered
[b] Allocation of Recovery Among Beneficiaries
[c] First Money Recovered
[d] Subrogating for More Than Benefits Paid
[e] Gray Areas
[f] Causation

[7] Reimbursement Rights
[8] Sample ERISA Plan Subrogation Language
[9] Sue in Name of Plan or Third Party Administrator?
[10] Credit Against Future Benefits
[11] Summary Plan Description (SPD)
[12] Summary Plan Description as Formal Plan Document
[13] Plan Fiduciary’s Interpretation of Plan Language
[14] Purpose of ERISA Subrogation

§ 8.12 Injunctions
§ 8.13 Constructive Trusts and Equitable Liens
§ 8.14 Restitution
§ 8.15 Declaratory Judgment Actions
§ 8.16 What Constitutes “Appropriate Equitable Relief”?
§ 8.17 Early Decisions

Chapter 9

Supreme Court Decisions Affecting ERISA Reimbursment: Knudson and Sereboff

§ 9.01 Great West Life Annuity v. Knudson
§ 9.02 Why the Supreme Court Got it Wrong in Knudson
§ 9.03 Sereboff v. Mid-Atlantic Medical Services, L.L.C.
§ 9.04 Applying Knudson and Sereboff to ERISA Subrogation
§ 9.05 Treatment of Knudson by Circuit

[1] First Circuit (ME, MA, NH, Puerto Rico, RI)
[2] Second Circuit (NY, CT, VT)
[3] Third Circuit (DE, NJ, PA, Virgin Islands)
[4] Fourth Circuit (MA, NC, SC, VA, WV)
[5] Fifth Circuit (LA, MS, TX)
[6] Sixth Circuit (KY, MI, OH, TN)
[7] Seventh Circuit (IL, IN, WI)
[8] Eighth Circuit (AR, IA, MN, MO, NE, ND, SD)
[9] Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, Mariana Islands)
[10] Tenth Circuit (CO, KS, NM, OK, UT, WY)
[11] Eleventh Circuit (AL, FL, GA)
[12] D.C. Circuit (District of Columbia)

§ 9.06 Summary of Supreme Court Treatment of “Appropriate Equitable Relief”
§ 9.07 Possible Congressional Action to Remedy Knudson....

Chapter 10

Other ERISA Recovery Issues

§ 10.01 Medical Malpractice Recoveries
§ 10.02 Uninsured Motorist Benefits
§ 10.03 Med Pay and PIP Benefits
§ 10.04 No-Fault Insurance Laws
§ 10.05 Anti-Subrogation Laws
§ 10.06 “Regulation of Insurance” Test
§ 10.07 Lien Reduction Statutes
§ 10.08 Common Fund Doctrine Statutes
§ 10.09 State Collateral Source Rules
§ 10.10 Federal Employees Health Benefit Act (FEHBA)
§ 10.11 Other State Statutes
§ 10.12 Federal Common Law
§ 10.13 Laws Regarding Minors
§ 10.14 Recovery of Benefit Payments Made by Mistake

[1] Mistake of Fact
[2] Mistake of Law
[3] Overpayment of Benefits by Social Security

§ 10.15 Coordination of Benefits (COB)
§ 10.16 NAIC Group Coordination of Benefits Model Regulation
§ 10.17 HIPAA, Medical Privacy, and Subrogation

[1] The Problem: Medical Record Privacy
[2] The Solution: HIPAA’s Privacy Regulations
[3] HIPAA’s Impact on Subrogation
[4] Federal Services Modernization Act (FSMA)
[5] Summary

§ 10.18 Overlap with Workers’ Compensation
§ 10.19 Attorney’s Fees
§ 10.20 Choice-of-Law Provisions
§ 10.21 Statutes of Limitations
§ 10.22 Right to Jury Trial
§ 10.23 Equitable Estoppel
§ 10.24 Bankruptcy
§ 10.25 Bad Faith

Chapter 11

Enforcement of Reimbursement Rights After Settlement

§ 11.01 Introduction
§ 11.02 Federal Court Jurisdiction
§ 11.03 Unjust Enrichment
§ 11.04 Effect of Release of Third Party by Participant
§ 11.05 Tortious Interference
§ 11.06 Implied Partnership
§ 11.07 Breach of Fiduciary Duty
§ 11.08 Breach of Contract
§ 11.09 State Court Jurisdiction after Knudson and Sereboff

[1] Narrow View
[2] Broad View
[3] Modern View

§ 11.10 Plaintiffs’ Attorneys’ Ethical Considerations
§ 11.11 Special Needs Trusts

Chapter 12

Improving Plan Language

Chapter 13

Hiring Subrogation Counsel

Appendices

A-1 Wis. Stat. § 803.03 - Joinder of Persons Needed for Just and Complete Adjudication
A-2 29 U.S.C.A. § 1102 - Establishment of Plan
A-3 Bad ERISA Plan Subrogation Language
A-4 Good ERISA Plan Subrogation Language
A-5 29 U.S.C. § 1003 - Coverage
A-6 29 U.S.C. § 1144 - Other Laws
A-7 Geographic Boundaries of United States Courts of Appeals and United States District Courts
A-8 29 U.S.C. § 1132 - Civil Enforcements.
A-9 28 U.S.C. § 1331 - Federal Question
A-10 Form 5500—Annual Return/Report of Employee Benefit Plan
A-11 Sereboff v. Mid Atlantic Medical Services, Inc.
A-12 Great-West Life & Annuity Ins. Co. v. Knudson
A-13 Curriculum Vitae of Gary L. Wickert

Table of Cases
Table of Statutes
Table of  Other Authorities

Book Overview