cmonfils | January 18, 2012
Employer’s Guide to Self-Insuring Health Benefits January 2012 | Vol. 19, No. 4
In a surprising decision, the 3rd U.S. Circuit Court of Appeals used the concept of “appropriate equitable relief” to restrict an employer-sponsored health plan’s recovery from a third-party settlement. Full reimbursement of what the plan paid out would have been “inappropriate and inequitable,” even though the plan had asserted recovery rights over any monies collected from a third party. Full recovery would have been unfair because: (1) the plan participant’s recovery ended up being less than what the plan paid after attorney’s fees were deducted; and (2) the plan never intervened in the third-party recovery. The outcome diverges from many recent cases, which upheld plans’ claims on total proceeds, regardless of whether the plan participant was “made whole” or had money to pay attorney’s fees. (more…)
Category: 3rd, Common Fund, ERISA, Pennsylvania, Reimbursement, Subrogation, Third Party Agreements |
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cmonfils | December 27, 2011
On November 16, 2011, a panel of the Third Circuit Court of Appeals decided US Airways v. McCutchen, No. 10-3836, 2011 U.S. App. LEXIS 22883 (3d Cir. Nov. 16, 2011). The Court claims to respond to the Sereboff court’s argument left open by footnote two in the Supreme Court’s decision in Sereboff v. Mid-Atlantic, which the Court declined to address because it was not raised in the district court or the Fourth Circuit: “…even if the relief Mid Atlantic sought was ‘equitable’ under § 502(a)(3), it was not ‘appropriate’ under that provision in that it contravened principles like the make-whole doctrine.”
Category: 3rd, ERISA, Subrogation |
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cmonfils | December 21, 2011
Self-Insurer December 2011 Issue, Volume 38
By Michael Friedman and John Eggertsen
The subtleties of subrogation Analysis, or when drafting plan Language it is not so simple to say what you mean in a way a court will understand it.
For those who stick with this discussion of the Court’s assessment of the subrogation and reimbursement provisions in Two ERISA Plans, it will become abundantly clear that courts will review such provisions with the proverbial fine tooth comb, and that careful and explicit drafting is required in order for a plan administrator to enforce a plan’s rights. (more…)
Category: 9th, ERISA, HIPAA, Reimbursement, Subrogation |
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cmonfils | December 15, 2011
On July 1, 2011 the Texas Supreme Court finally settled the long-standing issue of whether an injured plaintiff may recover the amount of medical expenses charged by doctors or the amount actually paid or incurred. Trial lawyers have long argued that plaintiffs should be entitled to recover the amount charged to them by doctors and hospitals, which is usually significantly more than the discounted amounts paid by subrogated insurers or compensation carriers. Defendants have, of course, argued just the opposite. This new standard for proving medical expenses is having the effect of bringing plaintiffs’ counsel and subrogated carriers together, because we have something the trial lawyers want and need. (more…)
Category: Subrogation, Texas |
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cmonfils | December 12, 2011
Apparently, inspired by the recent Supreme Court decision in CIGNA v. Amara, the Third Circuit has held that the “appropriate equitable relief” qualifier in the grant of civil remedies under ERISA’s Section 501(a)(3) allows for the application of equitable defenses to plan reimbursement claims in – shall we say – “appropriate” situations. (I reviewed the lower court’s opinion previously.)
Category: 3rd, Subrogation |
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cmonfils | December 2, 2011
Applying the traditional equitable principle of unjust enrichment, we conclude that the judgment requiring McCutchen to provide full reimbursement to US Airways constitutes inappropriate and inequitable relief. Because the amount of the judgment exceeds the net amount of McCutchen’s third-party recovery, it leaves him with less than full payment for his emergency medical bills, thus undermining the entire purpose of the Plan. At the same time, it amounts to a windfall for US Airways, which did not exercise its subrogation rights or contribute to the cost of obtaining the third-party recovery. Equity abhors a windfall. See Prudential Ins. Co. of America v. S.S. American Lancer, 870 F.2d 867, 871 (2d Cir. 1989).
Category: 3rd, Subrogation |
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cmonfils | November 29, 2011
House Bill 3000: We previously reported on House Bill 3000, which prohibited collateral source providers from seeking recovery or subrogating in a health care lawsuit. We wanted to clarify that the bill defined a health care lawsuit to mean a claim against a “health care provider, a health care organization, or the manufacturer, distributor, supplier, marketer, promoter, or seller of a medical product”.
We have learned that this bill has not been active in either House and, in fact, neither House has even held a hearing on the bill. The bill does not appear to be advancing and appears stagnant.
Thanks to Matt Falk with Falk Metz in Milwaukee, Wisconsin for updating us on this important bill.
Category: Subrogation |
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cmonfils | November 29, 2011
Federal Employee Health Benefit Plans: As you may recall we recently sent out a blast regarding four putative class action lawsuits, challenging a Federal Employee Health Benefits plans’ right to recover or subrogate and alleging that the Federal Employee Health Benefit Act (FEHBA) does not preempt state anti-subrogation laws. Recently, the case of Morris v. Humana Health Plan, Inc. in the U.S. District Court for the Western District of Missouri, Western Division was remanded back to state court. The U.S. District Court held there was no federal jurisdiction.
Thanks to Joseph Willis III, Vice President, Client Solutions with Trover Solutions, Inc. and Chair of the Legislative Affairs Committee for updating NASP on this case.
Category: Subrogation |
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cmonfils | October 12, 2011
The Subrogator Fall 2011
By Steven M. Bialick, Law Office of Steven M. Bialick
Many health plans demand to be reimbursed, in full, for accident related medical benefits they paid before a plan member is allowed to keep any money received from the parties responsible for the accident. The laws of some states require health plans to reduce their subrogation, reimbursement, and lien claims by a proportionate share of their members’ attorney feels and litigation costs, and only allow those plans to enforce their claims after their members have received a full recovery. (more…)
Category: Health Insurance, Reimbursement, Self-Funding, Subrogation |
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cmonfils | October 12, 2011
The Subrogator Fall 2011
By Angela K. Larson, Optuminsight
Health plan often protect themselves against large or catastrophic loss through stop loss insurance, also known as reimbursement plans. When the health plan’s exposure exceeds a preset deductable, stop loss benefits reimburse the health plan inside of a particular contract year, thereby mitigating the overall risk to the health plan assets. (more…)
Category: Reimbursement, Stop Loss, Subrogation |
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cmonfils | October 12, 2011
The Subrogator Fall 2011
By Robert Marcinco, Strategic Recovery Partnership, INC.
Litigation any case is often a matter of weighing risk and analyzing cost against benefit. In the property & casualty (P&C) world of subrogation, the analysis is often a “Harder” objected one, driven by calculations of the costs involved predicated on specific facts and dollars paid. In the healthcare world, deciding whether to litigate involves many “softer” considerations, especially since it often involves an employer suing its own employee, or vice versa. But so what? The point of this article is to compare and contrast P&C and healthcare subrogation litigation and, in the process, take a closer look at the litigation considerations involved in healthcare liens that sometimes have nothing to do with the cases themselves. (more…)
Category: Litigation, Subrogation |
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cmonfils | September 16, 2011
Coordination of Benefits
Employee Benefits Series THOMPSON July 2011 | VOL. 19, No.3
By Jack B. Helitzer, Esq.
This issue of the Newsletter features a unique legal strategy used by a participant’s attorney who claimed that the auto liability insurer and the plan abused a plan member’s protected health information (PHI), when pursuing a subrogation claim. That approach raises the question of how plans can prevent subrogation situations from violating privacy laws. Well-drafted summary plan descriptions (SPDs) should include the plan’s privacy policies, including when PHI may be disclosed. One feasible approach may be for the plan’s subrogation and reimbursement provisions to cross-reference to the plan’s privacy provisions, and to have those provisions state that PHI can be shared with other insurers for benefits coordination. In addition, the plan’s privacy provisions should state that PHI may be disclosed to support a reimbursement claim. (more…)
Category: PHI, Subrogation, Summary Plan Description |
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cmonfils | August 25, 2011
www.subrogation.org
Federal Employee Health Benefit Plan Recoveries Under Attack
Recently, four putative class action lawsuits, challenging a Federal Employee Health Benefits plans’ right to recover or subrogate, have been filed. The suits, one filed in New York and the others filed in Missouri, allege that the Federal Employee Health Benefit Act (FEHBA) does not preempt state anti-subrogation laws and that the health plans’ recoveries, on behalf of Federal Employee Health Benefit (FEHB) plans, are not allowed. The suits also seek the refund of past FEHB plan subrogation recoveries. (more…)
Category: Health Insurance, Missouri, New York, Subrogation |
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cmonfils | August 22, 2011
Coordination of Benefits Employee Benefits Series THOMPSON July 2011 | VOL. 19, No.3
By Jack B. Helitzer, Esq.
This issue of the Newsletter features a unique legal strategy used by a participant’s attorney who claimed that the auto liability insurer and the plan abused a plan member’s protected health information (PHI), when pursuing a subrogation claim. That approach raises the question of how plans can prevent subrogation situations from violating privacy laws. Well-drafted summary plan descriptions (SPDs) should include the plan’s privacy policies, including when PHI may be disclosed. One feasible approach may be for the plan’s subrogation and reimbursement provisions to cross-reference to the plan’s privacy provisions, and to have those provisions state that PHI can be shared with other insurers for benefits coordination. In addition, the plan’s privacy provisions should state that PHI may be disclosed to support a reimbursement claim. (more…)
Category: ERISA, PHI, Subrogation, Summary Plan Description |
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cmonfils | August 8, 2011
www.subrogation.org
Over the past several weeks, two lawsuits seeking class certification have been filed and both suits could potentially affect the way carriers pursue and handle their subrogation rights. (more…)
Category: Illinois, Medicare, New York, Subrogation |
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