Adam V. Russo | November 18, 2009
Well drafted subrogation provisions will state that any allocation of tort settlement or judgments to reimburse non-medical losses – such as earnings lost – will not be binding on the plan. If that is stated, settlements or judgments won’t preclude the plan participant’s obligation to reimburse the plan. However, that’s not the necessarily the case when Medicare seeks to be reimbursed for the medical benefits that it paid. Indeed, contrary to the usual approach taken by privately sponsored health plans, the Medicare Secondary Payer (MSP) law on which Medicare’s right to reimbursement is based does not contain such a provision. (more…)
Category: 11th, Medicare |
No Comments »
Tags:
Adam V. Russo | November 18, 2009
The fact that a stop-loss insurer reimbursed a plan for some of the benefits the plan does not affect the plan’s ability to seek recovery from the participant’s tort settlement with a third-party tortfeasor. A federal court in Idaho upheld that outcome, allowing the plan to assert an equitable lien. The plan was covered by a stop-loss policy with a $50,000 stop-loss trigger. The participant incurred nearly $125,000 in health expenses and the plan received nearly $75,000 from the stop-loss insurer. The plan sought assets from the settlement. Clear plan provisions stated it had a right to the settlement funds. The court rejected arguments that stop-loss insurance makes a self-funded employee benefit plan insured for the purpose of ERISA preemption. The court concluded that the participant signed away her right to invoke the make-whole rule, because the plan specifically provided that it was entitled to reimbursement of the benefits paid even if the plan participant was not made whole. (more…)
Category: 9th, ERISA, Stop Loss |
No Comments »
Tags:
Adam V. Russo | November 18, 2009
Plan’s subrogation and reimbursement language may actually thwart their ability to recover from tort settlement proceeds benefits they paid. It is important for plan language to ensure that its recovery claim is limited to settlement proceeds. In one such case, a health plan did not identify a particular fund from which the reimbursement should be paid and it failed to say that the recovery was limited to third-party settlement proceeds. Because of the imprecise drafting, the court could assume the plan was trying to recover from the plan participant’s general assets. That created the possibility that a member could receive a recovery from a third party that was less than the benefit paid by the plan but would still have to repay the plan in full. As a result, the court found it impossible to award the recovery. (more…)
Category: 6th, 7th, Subrogation, Summary Plan Description |
No Comments »
Tags:
Adam V. Russo | November 18, 2009
By Stanley D. Baum – Erisalawyerblog.com
In Wetzler v. Illinois CPA Society & Foundation Retirement Income Plan, No. 08-2923 (7th Cir. 2009), the plaintiff, Thomas Wetzler, wanted a lump-sum payment of his entire retirement benefit from the Illinois CPA Society & Foundation Retirement Income Plan (the “Plan”). The Plan is a tax-qualified defined benefit pension plan. The plaintiff was a highly compensated employee. The Plan had always allowed lump-sum payments. However, prior to the plaintiff’s retirement, the Plan had been amended to reflect certain provisions of the Internal Revenue Code (the “Code”) and the underlying Treasury regulations, under which the Plan could not make a lump- sum payment to certain highly compensated employees, such as the plaintiff, when the Plan is not sufficiently funded (the “Amendment”). At the time of the plaintiff’s request for a lump-sum payment, there were not enough assets in the Plan to cover this payment. Therefore, honoring the plaintiff’s request would have caused the Plan to use all of its assets and violate the Code and the underlying Treasury regulations, and to also violate the Plan itself due to the Amendment. Explaining this to the plaintiff, the plan administrator for the Plan (the “Plan Administrator”) refused his request. The plaintiff filed suit in district court, alleging that the Amendment violated the anti-cutback rules of ERISA (found in 29 U.S.C. § 1054(g)) by eliminating a previously available benefit, and that the Plan Administrator acted arbitrarily and capriciously in denying his demands for a lump-sum payment. The district court granted summary judgment in favor of the defendant, and the plaintiff appealed. (more…)
Category: 7th, ERISA |
No Comments »
Tags:
Adam V. Russo | November 16, 2009
Please see the following 6th Circuit Decision brought to our attention by Daran P. Keifer, Esq. of Kreiner & Peters Co. L.P.A. The decision highlights that funds do not need to be maintained in order for a plan to seek reimbursement and that the Plaintiff attorney is personally liable for the percentage of reimbursement equal to his attorney fees.
6th Circuit Decision
Category: 6th, Attorneys' Fees, Subrogation |
No Comments »
Tags:
Adam V. Russo | October 12, 2009
by Joe Hanel of The Durango Herald, www.durangoherald.com
DENVER – Stephen and Naomi Dobbs have some of the same complaints about stonewalling by their health-insurance company as many people.
But when the Durango couple sued Anthem Blue Cross & Blue Shield, they got caught between two complex areas of the law – health insurance and Native American tribal sovereignty. (more…)
Category: 10th, ERISA |
No Comments »
Tags:
Adam V. Russo | September 18, 2009
by Roy Harmon, III, www.healthplanlaw.com
A typical plan will contain an exclusion for accidents or injuries resulting from intoxication, unlawful conduct and so forth. How the plan states the exclusion can vary quite a bit, and the distinctions can make a significant difference in outcomes.
(more…)
Category: 3rd, 4th, ERISA, Exclusion, Third Party Administrators |
No Comments »
Tags:
Adam V. Russo | August 31, 2009
From The Bench – The Self-Insurer Volume 26* August 2009
By John H. Eggertsen, Esq. and Michael Friedman, Esq.
II. Fifth Circuit Rejects Benefit Decision For Procedural Defects; Can’t Even Assess If Determination was Arbitrary And Capricious
In Lafleur v. Louisiana Health Service Indemnity Company, d/b/a Blue Cross Blue Shield of La., 563 F.3d 148 (5th Cir. 2009), the Fifth Circuit found that Blue Cross Blue Shield of Louisiana (“BCBSL”) was so deficient in its substantive compliance with ERISA’s procedural regulations that it could not even express an opinion as to whether the determination was arbitrary and capricious. (more…)
Category: 5th, Louisiana, MetLife v. Glenn |
No Comments »
Tags:
Adam V. Russo | August 31, 2009
From The Bench – The Self-Insurer Volume 26* August 2009
By John H. Eggertsen, Esq. and Michael Friedman, Esq.
After the U.S. Supreme Court’s recent decision in Metropolitan Life Ins. Co. v. Glenn ___ U.S.___, 128 S. Ct. 2343 (2008), many circuit courts have been applying a magnifying glass to their prior standard of review decisions, and making whatever adjustments they feel are necessary in light of this most recent guidance. We have discussed some of those cases in the past, and may do so again if circumstances warrant. In this discussion, however, we turn to a notable trend that had been emerging pre-Glenn, is continuing unabated and may be accelerating post-Glenn – that trend is the tendency of the courts to examine in greater detail the actual evidence on which claims determinations are based and the administrators’ rationales for making their determinations based on that evidence. Even under an arbitrary and capricious standard of review, generally held to be the most deferential standard, the courts are more willing to take the administrators’ word at face value. In addition, courts are scrutinizing claim determinations with an eye towards ERISA’s procedural requirements, and striking down those that fail to comply. The two cases discussed here are clear evidence of both these trends. (more…)
Category: 6th, MetLife v. Glenn, Ohio |
No Comments »
Tags:
Adam V. Russo | August 19, 2009
The number of cases that apply the Supreme Court’s opinion in Metropolitan Life Insurance Company v. Glenn, 128 S. Ct. 2343 (2008) , when reviewing a decision to deny employee benefits by an administrator with a conflict of interest, continue to grow. The most recent example is Raybourne v. Cigna Life Insurance Company of New York, No. 08-2754 (7th Cir. 2009), where the plaintiff was a participant in his employer’s long-term disability benefits plan. (more…)
Category: 7th, Conflict of Interest, ERISA, MetLife v. Glenn |
No Comments »
Tags:
Adam V. Russo | August 11, 2009
www.plansponsor.com
The 9th U.S. Circuit Court of Appeals has affirmed a lower court’s decision that that a health plan administrator should be reimbursed for benefits it paid for a woman who was falsely represented as a participant’s legal spouse.
EBIA reports that the appellate court agreed with the U.S. District Court for the Western District of Washington that the $70,000 reimbursement is considered equitable relief under the Employee Retirement Income Security Act (ERISA). The courts rejected Ralph W. Cutter’s argument that because the benefits were not paid directly to him and were not in his possession, the plan could not seek reimbursement from him. (more…)
Category: 9th, Welfare Benefit Plans |
No Comments »
Tags:
Adam V. Russo | August 4, 2009
In Iowa Health Systems v. Graham, 2009 U.S. Dist. LEXIS 63544 (C.D. Ill. July 23, 2009), Iowa Health wants the Court to impose a constructive trust or equitable lien over a portion of specifically identifiable funds over which Graham has possession. (more…)
Category: 8th, ERISA, Health Care Legislation, Subrogation |
No Comments »
Tags:
Adam V. Russo | July 29, 2009
by Andrea Jackson, Times-News, www.magicvalley.com
A Twin Falls lawyer is fighting a lawsuit slapped against him by a former client claiming negligence, and has filed paperwork to dismiss the case in Twin Falls 5th District Court.
William Hollifield, of the Hollifield Law Office in Twin Falls, is being sued by Amanda Fomichev, a former client who hired him as a personal injury lawyer after she lost a leg when she was hit by a vehicle while working as a car wash attendant almost four years ago at Lynch Oil Inc.’s Mr. Wash. (more…)
Category: 5th |
No Comments »
Tags:
Adam V. Russo | July 29, 2009
by B. Janell Grenier, The Fiduciary Guidebook, www.fiduciaryguidebook.com
One of the key aspects of determining whether ERISA fiduciary law applies has to do with whether the benefit plan at issue is an ERISA-covered plan. ERISA provides an exemption from its applicability under 29 C.F.R. Section 2510.3-1(j) for certain “group or group-type insurance programs.” If a plan meets all four requirements of this exemption, then the plan is not an ERISA-covered plan, but will be governed by state law. (more…)
Category: 6th, ERISA |
No Comments »
Tags:
Adam V. Russo | July 28, 2009
In Wenner v. Sun Life Assurance Co. of Canada, 482 F.3d 878 (6th Cir. 2007), the Sixth Circuit found that Sun Life’s failure to give plaintiff an opportunity to appeal the new grounds for its termination of his benefits violated ERISA’s notice requirements. The insurer initially terminated plaintiff’s benefits because he failed to provide requested medical information; on appeal, it upheld its decision on entirely different grounds. The court held that Sun Life failed to provide a full and fair review of the decision denying the claim, as required by ERISA, when it refused to allow plaintiff a second appeal. In considering the appropriate remedy, the court reasoned that because Sun Life previously determined plaintiff was entitled to benefits, he should not be denied those benefits until his insurer complied with ERISA. Accordingly, the court affirmed the reinstatement of plaintiff’s benefits.
Category: 6th, ERISA, Plan Language |
No Comments »
Tags:
