1 ERISA Law In Your Non-ERISA Practice 1. What is ERISA? 2. The Interplay between ERISA, SSD, and Workers Compensation 3. Challenges of ERISA Claims 4. Personal Injury Liens 5. Civil Penalties By: Phillip A. Tatlow & Jeffrey A. Herman Bollwerk & Tatlow, LLC * Phil Tatlow is a partner at Bollwerk & Tatlow, LLC, and Jeff Herman is an associate. Their practice focuses primarily on claims for benefits under ERISA, including long-term disability, life insurance, health insurance, and retirement benefits. I. WHAT IS ERISA? ERISA is an acronym for Employee Retirement Insurance Security Act of ( ERISA, 29 U.S.C ). ERISA governs all employee benefits provided by private employers or employee organizations (such as unions) in the U.S. It does not apply to benefits provided to employees of federal, state, and local governments, or to some benefits provided by religious organizations. The law governing employee benefits is diverse. In addition to the statute itself, which is very long, an attorney must also be aware of: U.S. Department of Labor regulations, 29 C.F.R Advisory Opinions, State insurance regulations of any kind (if not preempted by ERISA). See, e.g., Rev. Stat. Mo (mandatory group life insurance plan provisions). Case law from around the country interpreting ERISA, which can very substantially from one federal circuit to the next. Here are the five most important laws you should know:
2 1. 29 U.S.C Preemption & Savings Clause. Not only do you have to discover state insurance laws (statutes, regulations, and/or cases) that can help or hurt you, but you have to perform a complicated and often uncertain analysis to determine if they are preempted by ERISA or not. Ky. Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003) (preemption test). (a) Supersedure; effective date Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, (b) Construction and application (1) This section shall not apply with respect to any cause of action which arose, or any act or omission which occurred, before January 1, (2) (A) Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities U.S.C. 1024(b). Disclosure Requirements. ERISA requires plan administrators to provide Summary Plan Descriptions, Summaries of Material Modifications, and other documents to plan participants, both automatically and upon request. (4) The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies 2 Bollwerk & Tatlow, LLC
3 3. 29 U.S.C. 1104(a)(1). Fiduciary Duties. These are the duties that can give rise to a breach of fiduciary duty claim. In addition to these, courts also recognize a duty of disclosure. See, e.g., Kalda v. Sioux Valley Physician Partners, Inc., 481 F.3d 639, 644 (8th Cir. 2007). [A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and - (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and (D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter U.S.C. 1032(a)(1), (c). Causes of Action. Under ERISA, you can sue for civil penalties, to enforce ERISA or the terms of a plan, or for appropriate equitable relief. (a) Persons empowered to bring a civil action A civil action may be brought (1) by a participant or beneficiary (A) for the relief provided for in subsection (c) of this section, or (B) to recover benefits due to him under the terms of his plan, to 3 Bollwerk & Tatlow, LLC
4 enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;... (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan;... (c) Administrator's refusal to supply requested information; penalty for failure to provide annual report in complete form (1) Any administrator... (B) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court s discretion be personally liable to such participant or beneficiary in the amount of up to $100 [NOTE: increased by regulation to $110] a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper. For purposes of this paragraph, each violation described in subparagraph (A) with respect to any single participant, and each violation described in subparagraph (B) with respect to any single participant or beneficiary, shall be treated as a separate violation C.F.R Claim Review Procedures. For claims for benefits that are denied or appealed, this regulation describes what the plans have to do, and what the claimant s basic rights are, such as the right to request copies of all relevant information, free of charge. 4 Bollwerk & Tatlow, LLC
5 II. THE INTERPLAY BETWEEN ERISA, SSD, AND WORKERS COMPENSATION Injured clients who cannot work will often have multiple, interrelated claims relating to their disability, including Worker s Compensation, Social Security Disability, long term disability, and possibly total and permanent disability benefits under a life insurance plan. It is crucial for attorneys to understand ERISA s impact in order to maximize recoveries for their client and also to prevent potential Bar complaints or malpractice claims against them. If a worker has an LTD policy, it usually requires the claimant to have a permanent and total disability. The definition of disability may vary from plan to plan. Sometimes the plans have a less stringent standard for the first year or first two years of the disability. After a one or two year period a more stringent standard may apply. For example, some long term disability plans have an own occupation definition of disability that applies for the first year or two of the disability. After one or two years of being disabled from the person s own occupation, the person must satisfy the definition of disability for any occupation. At this point, the LTD plan s right to recover overpayments must be taken into account. Any coordination or reduction of benefits clause in the LTD or Life plan must be examined if you are representing a person under Workers Compensation or SSD, and you are claiming the person is permanently and totally disabled. After you have obtained the entire policy and plan documents, you need to determine whether or not the coordination of benefits clause applies. There is often an offset provision in the plan that states that if the employee has other sources of income or benefits, the plan is entitled to reduce the LTD benefits by the amounts of those other sources. It is important to understand the language of the LTD plan to determine what others sources of benefits have to be subtracted from the LTD benefits, should they be awarded. If granted LTD benefits under an ERISA plan, as well as SSD benefits and WC benefits, all under a permanent and total disability standard, most LTD plans require a reduction for both the SSD and the WC benefits. For example: $3,000 (LTD benefit per month before offset) - $1,000 per month (SSD) - $1,000 per month (WC) = $1,000 (LTD benefit after offset). Benefits from SSD are almost always subtracted from the LTD benefits. If back 5 Bollwerk & Tatlow, LLC
6 benefits are obtained under SSD (i.e., a lump sum for a period of disability in the past), then the client may have been overpaid LTD benefits for that same period, entitling the LTD plan to seek repayment of those excess benefits. Most ERISA LTD plans will demand repayment of what has already been paid to the beneficiary, claiming they can offset the SSD back benefits from the LTD benefits already paid. If the attorney is not aware of this or does not take precautions, it creates a potential claim against both the attorney and the client. LTD plans often ask the insured and the attorney to sign REIMBURSEMENT AGREEMENTS that promise to pay the carrier back if the client receives other sources of deductible income such as, Social Security benefits or worker s condensation benefits. If the client refuses to sign such agreement, a plan may refuse to pay any benefits to the insured. This can create a financial hardship on the client so the attorney must determine the enforceability of such agreement. It also creates a potential ethics problem for the attorney if he/she has signed the agreement. If the attorney has signed the agreement, he/she is obligated to honor it. However, if the client obtains long term disability and Social Security/Disability income but instructs the attorney not to pay back the long term disability carrier; this creates a conflict f interest. The attorney has a conflict of interest and may have to withdraw or file an interpleader action and place the funds into the registry of the court to have a court decide on the issue. III. ERISA CLAIM CHALLENGES The Administrative Process. No running to federal court upon a denial. Instead, the claimant has at least one right of appeal, and many plans give two rights of appeal. A claimant has 180 days filing a denial to appeal. You have to be sure to meet those deadlines. But once the denial is final, you can bring a suit. Statute of Limitations? ERISA has no statute of limitations, except for breach of fiduciary duty claims. See 29 U.S.C For everything else, the limitation is borrowed from the most analogous state law claim. BUT... In Heimeshoff v. Hartford Life & Accident Ins. Co., 133 S. Ct. 1802, 1803 (U.S. 2013), the Supreme Court upheld a plan with a 3-year limitations period, giving a claimant just 12 months to sue after the final 6 Bollwerk & Tatlow, LLC
7 denial. Subsequent cases have upheld as short as 7 months after a denial. Bottom line: You have to check the plan and comply with its limitations period. No State Law Claims. Some state insurance regulations may be saved from preemption, but not state law causes of action. So there are no state law breach of contract claims, fraud claims, negligence claims, etc. Neither can you get relief authorized by state law, such as punitive damages. No Jury Trials. The case will be decided by a federal judge, not a jury. Limited Damages. If a claim is denied, your relief is pretty much limited to getting the benefits that were denied, that s it. No pain and suffering, lost wages, etc. Just whatever the claimant was entitled to under the Plan. However, if you prevail in federal court, you can move for an award of attorney s fees and costs. See: 29 U.S.C. 1132(g). BUT... A surcharge is a claim for make-whole relief that is, DAMAGES against a plan fiduciary for harm caused by a breach of fiduciary duty. The U.S. Supreme Court ruled that a surcharge is traditional equitable relief that can be recovered under ERISA s catch-all provision for appropriate equitable relief. See: CIGNA Corp. v. Amara, 131 S. Ct (U.S. 2011). BUT, BUT... claims for equitable relief are barred if adequate relief a claim for benefits already exists for the harm caused. So, for example, if a claimant gets denied life insurance benefits, you cannot seek a surcharge in order to try to recover those same benefits. Deferential Review. A denial of benefits will be upheld if a court finds it is reasonable, provided the plan s governing documents again, you need to make sure you get those give the claims administrator the right to decide claims and interpret the plan. This makes winning very hard. Even if the judge disagrees with the denial, he or she still has to uphold it. See: Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989). Administrative Record. You might think you can submit new evidence for the 7 Bollwerk & Tatlow, LLC
8 judge to see in support of the claim. Not so much. The evidence will usually be limited to what s in the administrative record. Limited exception for relevant items that were not previously available. So, if you want to have a good shot at winning, you better get in your evidence during the administrative appeal!!! Get your medical records, your experts, and other evidence, and make sure you timely submit it to the fiduciary. Limited Discovery. If the fiduciary is entitled to deferential review, then discovery in a claim for benefits is limited to evidence of a fiduciary s financial conflict of interest. See: Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). In a claim for equitable relief, however, we have successfully argued that plaintiffs are entitled to basic discovery rights. See: Kostecki v. Prudential Ins. Co. of Am., 2014 U.S. Dist. LEXIS (E.D. Mo. Oct. 10, 2014). IV. PERSONAL INJURY LIENS If a client gets medical care, and his or her employer-sponsored health insurance pays for any or all of it, then you have to deal with the ERISA plan s lien for what it paid. The first step is to find out if a plan is self-funded or not, i.e., whether the employer assumes the risk for providing health care benefits to the plan participants. Because, while many states bar subrogation by health insurers, such state laws are preempted by ERISA for self-funded plans. How to find out if the plan is self-funded. The plan s SPD likely states one way or the other. Obtain the plan s Form 5500 through a document request under 29 U.S.C. 1024(b)(4). Or check FreeErisa.com for the plan s prior filings to see if they state the plan is funded by the General Assets of the employer. Third-party administrators. A third party administrator may be involved in a selffunded plan in order to process claims and administer the benefits. Even in these cases, ERISA applies, and the participant has to repay the health insurance company benefits the plan paid for, if he or she recovers any money from the tortfeasor. Reimbursement Agreements. See page 6. The same considerations apply in a Third-Party Liability case. 8 Bollwerk & Tatlow, LLC
9 REAL LIFE EXAMPLE: Auto Accident Case Plaintiff was injured by a person with $100,000 in liability coverage and $50,000 in underinsured coverage. Plaintiff had multiple surgeries and treatment and his health insurer paid $250,000 in benefits. Plaintiff wants to settle with Defendant for the $100,000 limits of liability coverage and is seeking $50,000 in underinsured benefits. The health insurer writes the attorney a letter claiming that the Health Insurance Plan is governed by ERISA and it has a full right of reimbursement, which would consume the entire settlement, leaving the client with nothing. What do you do? Failing to do anything to protect the interests of the health insurer will subject the client and the law firm to a lawsuit for damages, restitution, or injunctive relief. Investigation of the claim of the Health insurer prior to settling any claims is the prudent course of action. In this case, the Attorney obtained the Form 5500 form from freeerisa.com and determined that the form had contradictory information. Under box 9(a), the plan funding is marked with funding through the general assets of the company. However, under this section insurance was also checked. Is the plan self-funded so it can obtain full reimbursement, or not? The plan was partially self-funded and partially insured. The plan insured participants vision, dental, and life insurance benefits, but paid health insurance benefits from General Assets of the company and a trust does not hold the assets. Courts have held that in such a situation, a health-insurance plan can be self-funded despite the fact that the plan s life insurance and accidental death and dismemberment benefits were paid for partially with insurance. United Food & Commercial Workers v. Pacyga, 801 F.2d 1157, 1162 (9th Cir. 1986); State Farm Mut. Auto Ins. Co. v. Smith, 342 F.Supp.2d 541 (W.D. Va. 2004) (fact that vision portion of health plan was insured did not preclude plan from being self-funded within meaning of ERISA). The attorney obtains the SPD, which states the insurance was for health benefits, but also clearly states the plan was self-funded. Thus, the health insurer had a reimbursement claim for the full $250,000 without any reduction for attorney s fees. Attorney should seek a compromise from insurer allowing attorney to be paid to collect the money and allow a small amount to client. If the insurer refuses, the attorney risks finishing the case and having to repay entire $250,000 to the health insurer or risks being sued along with client. In the actual case, the health insurer compromised and allowed the attorney to charge his full fee. 9 Bollwerk & Tatlow, LLC
10 V. CIVIL PENALTIES You can read about civil penalties in more detail, including claims for penalties under COBRA, at penalties_herman.pdf. Under 29 U.S.C. 1132(c), a plan participant or beneficiary can potentially get up to $110 for each day the plan administrator fails to provide certain documents upon request. Here s how to make a claim for penalties: 1. Find out who the Plan Administrator is. Usually, penalties can only be sought from the plan administrator. The plan administrator is listed in the Summary Plan Description. The plan administrator is almost always the employer (sometimes the insurance company providing the insurance). If you don t have an SPD or you re just not sure, send your request for plan documents to the employer, the insurer, and any other relevant entity you can identify. 2. Draft a written request. Specifically request verbatim if you d like all the documents identified in 29 U.S.C. 1024(b)(4). If the request is associated with a claim for benefits, you should also ask for all past documents that might apply to the claim. E.g., and all such documents in effect when the claimant ceased work in April of Send the request to the plan administrator. Penalties are assessed per day, so dates are important. You need to be able to prove when your request was sent and when it was received by the plan administrator. A fax is good if you keep the confirmation page. Certified mail is good if you get a confirmation or return receipt. But make sure you keep a copy of your request and the proof it was received someplace safe. The plan administrator cannot condition documents upon a release or waiver, but they can make a reasonable charge for copies. At the most, it will be 25 cents per page plus mailing costs. 4. Wait 30 days, then figure out what they did not give to you. They have 30 days to comply with the request. After that, penalties start. 5. Sue for penalties, plus costs and attorney s fees. $110 a day is the maximum. The judge has complete discretion, but will consider the following factors: harm, bad intent, the importance of the documents withheld, the length of the delay, and the number of requests sent. The plan administrator has one affirmative defense: if their failure results from matters reasonably beyond the control of the administrator. 10 Bollwerk & Tatlow, LLC
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