ERISA S Imposter: A Primer on FEHBA Liens

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1 Journal of the Kansas Association for Justice 11 MEDICAL-LEGAL ERISA S Imposter: A Primer on FEHBA Liens By Dustin L. Van Dyk & Michael J. Wyatt Dustin L. Van Dyk is an attorney with the law firm of Palmer, Leatherman, White & Dalton LLP in Topeka, Kansas. He received his B.A. degree in economics from the University of Colorado in 2003 and J.D. with honors from Washburn University School of Law in His practice is dedicated representing plaintiffs in personal injury, medical malpractice, and insurance coverage litigation. Michael J. Wyatt of Mann Law Offices, LLC focuses his practice in the law of negligence, including automobile/ trucking accidents, wrongful death, catastrophic injury, products liability, nursing home neglect, and premises liability. Mike practices in his hometown of Hutchinson, Kan. He received his J.D. degree (with honors) from Washburn University School of Law in 2007, and a B.A. degree (summa cum laude) from Washburn University in Mike currently serves as a member of the KsAJ Education and Membership committees. Dealing with subrogation claims of purported ERISA carriers is becoming the bane of the plaintiff lawyer s existence. Determining the rights and duties of the various parties in a lien dispute and, indeed, the very validity of the lien itself is no small task in today s world of subrogation contractors like the Rawlings Company and Socrates. These bill collectors often go to great lengths to mislead plaintiffs counsel into believing there are no viable methods to reduce or avoid such liens. Along with the increase in ERISA subrogation claims, there has also been a swell of liens claimed pursuant to the Federal Employees Health Benefit Act (FEHBA). See 5 U.S.C et. seq. FEHBA is a regulatory scheme that establishes the Federal Health Benefits Program to provide health insurance benefits to Federal Employees, Federal Retirees and eligible family members. 1 In recent years, FEHBA carriers have ramped up efforts to assert third-party subrogation claims over tort recoveries by using the same independent thirdparty contractors used by ERISA carriers. Like ERISA, FEHBA contains a preemption clause. 3 In both the authors experience and a review of industry publications, 4 these contractors will argue that the preemption clause of FEHBA carries the same weight as ERISA, and that this clause preempts K.A.R , the Kansas state antisubrogation regulation. This is simply untrue. With a little analysis, you can reduce or eliminate these purported liens for your client. With Whom are We Dealing? Before delving into a detailed legal analysis of the invalidity of the FEHBA preemption provision, some practical tips are in order. It is important to recognize who you are typically dealing with, at least initially, when FEHBA liens are asserted. Bill collectors generally employ recovery specialists with little to no legal training or understanding of the statutory scheme and case Rather, they are trained to mechanically administer these claims. This can be used to your advantage. Like ERISA, most FEHBA plans contain language that specifically disclaims the common fund or made whole doctrines or purports to otherwise avoid a reduction for attorney s fees and expenses. Notwithstanding this limitation, in the authors experience, the recovery specialist typically has the authority to offer a reduction for attorney s fees and expenses, as well as to determine whether certain claims are related to the tortfeasor s conduct. This is also the extent of their authority. As a practical matter, when negotiating such liens, it is often best to get the recovery specialist to acknowledge the reduction for attorney s fees and expenses and also to remove any claims not related to the accident before engaging in the legal merits of the lien, as this will help anchor your negotiations.

2 12 Journal of the Kansas Association for Justice Legal Analysis K.A.R Under Kansas law, health insurers cannot have a subrogation interest in third-party tort proceeds. K.A.R provides that [a]n insurance company shall not issue contracts of insurance in Kansas containing a subrogation clause applicable to coverages providing for reimbursement of medical, surgical, hospital or funeral expenses. Accordingly, absent preemptive federal law, health insurance subrogation is not allowed in Kansas. In many of our practices, we deal with the preemptive power of ERISA on a regular basis. Bill collectors will assume that you will look at FEHBA through the same lens. FEHBA vs. ERISA Preemption As noted above, bill collectors will often erroneously assert that the FEHBA preemption provision is similar to ERISA and should be applied accordingly. FEHBA s preemption provision provides: The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local.. which relates to health insurance or plans. 4 The narrow scope of FEHBA s purported preemption language becomes clear when contrasted with the broad scope of ERISA preemption, which provides: 5 (a) E xcept 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... (c) For purposes of this section: (1) The term State law includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State... (2) The term State includes a State, any political subdivisions thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this subchapter. Thus, while FEHBA preempts only the terms of any contract relating to the nature, provision, or extent of coverage or benefits, ERISA preemption, on the other hand, is expansive it preempts any and all state laws which relate to employee benefit plans. 6 This distinction was noted by the United States Supreme Court in Empire Healthchoice v. McVeigh, 547 U.S. 677, 698(2006) wherein the Court compared 5 U.S.C. 8902(m)(1) with 29 U.S.C and noted that portions of ERISA preemption supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. Writing for the majority, Justice Ginsburg noted FEHBA contains a preemption clause, 8902(m)(1), displacing state law on issues relating to coverage or benefits afforded by health-care plans. The Act contains no provision addressing the subrogation or reimbursement rights of carriers. Id. at 683 (Emphasis added). The Court also noted that FEHBA s text itself contains no provision addressing the reimbursement or subrogation rights of carriers. Id. at 697 (Emphasis added). The Supreme Court went on to note: If Congress intends a preemption instruction completely to displace ordinarily applicable state law, and to confer federal jurisdiction thereby, it may be expected to make that atypical intention clear. Cf., e.g., Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, , 122 S.Ct. 2226, 153 L.Ed.2d 430. Congress has not done so here. Section 8902(m)(1) does not purport to render inoperative any and all state laws that in some way bear on federal employee-benefit plans. Cf. 29 U.S.C. 1144(a). And, given that 8902(m)(1) declares no federal law preemptive, a modest reading of the provision is in order. Furthermore, a reimbursement right of the kind Empire here asserts stems from a personal-injury recovery, and the claim underlying that recovery is plainly governed by state Id. at 680 (Emphasis added). Nevertheless, subrogation contractors generally argue that Empire is limited to the question of federal jurisdiction. While it is true that the primary question posed in Empire was whether FEHBA subrogation claims should be brought in state or federal court, the crux of the Court s analysis was the extent to which state law controlled such claims. The Supreme Court specifically stated that it was not prepared to say that under 8902(m)(1), an OPM-BCBSA contract term would displace every condition state law places on that recovery. Id. at 680. The Court further noted that the plain language of 5 U.S.C. 8902(m)(1) demonstrates Congressional intent to ensure that benefits and coverages are uniformly provided to federal employees nationwide and ensure that employees had a federal forum to litigate disputes concerning coverage or benefits. Empire at 686.

3 Journal of the Kansas Association for Justice 13 Empire, however, did not deal with a state anti-subrogation regulation. The U.S. Supreme Court s reasoning has been subsequently applied in the context of alleged FEHBA preemption. In Van Horn v. Arkansas Blue Cross and Blue Shield, 2007 WL (E.D.Ark. 2007), the Eastern District of Arkansas held that FEHBA s preemption provision only extended to coverage or benefits issues, not subrogation rights of the insurance company. The court, citing Empire, goes on to write that nothing in FEHBA s text prescribes a federal rule of decision for a carrier s claim against its insured or an alleged tortfeasor to share in the proceeds of a state-court tort action. Id. at *2. In July 2011, the U.S. District Court for the Southern District of New York addressed this issue directly in Calingo v. Meridian Resources Co. LLC, 2011 WL , (S.D. N.Y., 2011). Calingo was a class action involving a third-party subroger, Meridian, who under the guise of FEHBA pursued subrogation claims against New York insureds that settled personal injury claims. Id. After reviewing Empire, the Court analyzed whether subrogation rights involved coverage or benefits as defined by FEHBA, holding: Because, following [Empire], subrogation and reimbursement pursuant to a health insurance policy does not relate to the coverage and benefits under such a policy, the Court finds that FEHBA does not preempt state Id. at 10 (Emphasis added). Likewise, in November 2011, The United States District Court for the Western District of Missouri addressed a similar issue in Morris v. Humana Health Plan, Inc., 2011 WL , 829 F.Supp.2d 848 (W.D. Mo., 20011). Morris involved a state court action against a plan which was subsequently removed to federal court. The plaintiff filed a motion to remand the case. The plan claimed that under 5 U.S.C. 8902(m)(1), as amended in 1998, the contractual subrogation provisions noted in the Plan preempted any state law that prohibits subrogation. The Court held that the [plan s] reliance on this statute is misplaced. Id. at 7. Citing Empire, the Court held that [I]f Congress intended [5 U.S.C. 8902(m)(1)] to also encompass contract-derived reimbursement claims between carriers and insured workers, it would have been easy for Congress to say so; which it did not do. Id. at 8, (Internal citations omitted). Consequently, the Court remanded the case to state court for further proceedings. Based upon Empire and its progeny, 5 U.S.C. 8902(m)(1) does not preempt K.A.R As such, FEHBA liens are therefore invalid and unenforceable in Kansas. Constitutionality of 5 U.S.C. 8902(m) (1) In addition to the fact that the plain language of 5 U.S.C. 8902(m)(1) does not provide for FEHBA preemption of subrogation claims, there is substantial question as to whether 5 U.S.C. 8902(m)(1) is constitutional. Under FEHBA, the Office of Personnel Management (OPM) negotiates with private insurers and regulates healthbenefits plans for federal employees. 5 U.S.C. 8902(a). OPM then enters into contracts with those private insurers to provide benefits for federal employees. Pursuant to 5 U.S.C. 8902(m)(1), it is those contracts, which purportedly preempt state In Empire, the United States Supreme Court upheld the decision of Second Circuit Judge [and now Associate Justice of the United States Supreme Court] Sonia Sotamayor. Empire HealthChoice Assur. v. McVeigh, 396 F.3d 136 (2nd. Cir., 2005). Justice Sotamayor discussed the constitutional issue at length, noting: we discuss first a peculiar feature of 8902(m)(1) which receives very little judicial attention. Though courts generally decide FEHBA cases as if 8902(m)(1) were a preemption provision like any other, the provision is in fact quite unusual, because it provides that certain types of contract terms will supersede and preempt state laws in a particular field. 5 U.S.C. 8902(m)(1). Normally, preemption clauses provide that federal law will preempt state A typical provision might provide for preemption, for example, by expressly stating that the statute s provisions preempt state Regardless of a given provision s structure or wording, however, we generally take for granted that it is law, and not a mere contract term, that carries the preemptive force. Though 8902(m)(1) s plain language differs from typical preemption provisions by unambiguously providing

4 14 Journal of the Kansas Association for Justice for preemption by contract, such a literal reading of the provision is highly problematic, and probably unconstitutional, because only federal law may preempt state and local The constitutionality of federal preemption is, after all, grounded in the Supremacy Clause of the Constitution, which provides that the Laws of the United States... shall be the supreme Law of the Land... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. There is no constitutional basis for making the terms of contracts with private parties similarly supreme over state Taken literally, therefore, FEHBA s preemption provision may fail to withstand constitutional scrutiny unless FEHBA-authorized contracts themselves are Laws of the United States. They are not. Law connotes a policy imposed by the government, not a privatelynegotiated contract. Under FEHBA, the government does not impose contract terms as it would impose a Rather, the OPM negotiates the contract terms privately with insurance providers, who are under no obligation to enter into the contracts in the first place. The fact that a literal reading of 8902(m)(1) raises serious constitutional problems does not, however, require us to invalidate the provision. [W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, we may construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. This canon of statutory construction, known as constitutional avoidance, is grounded in respect for Congress, which we assume legislates in the light of constitutional limitations. Here, we can reasonably construe 8902(m)(1) as requiring that, in cases involving the terms of any contract under [FEHBA] which relate to the nature, provision, or extent of coverage or benefits, federal law shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans. This construction is as faithful as constitutionally possible to the provision s plain language and respects Congress s stated intent to maintain uniformity in FEHBA benefits and to displace State or local law relating to health insurance or plans. The federal law preempting state law may be federal common law or the FEHBA statute provisions themselves, but it must be law-not contract terms. Empire HealthChoice Assur., Inc. v. McVeigh, 396 F.3d 136, (Internal citations omitted) (Emphasis added). Thus, pursuant to Justice Sotamayor s ruling, if the contract terms preempt state law, 5 U.S.C. 8902(m)(1) is unconstitutional. In order to be constitutional, the statute must be read to provide that federal law preempts state As no such law exists, K.A.R applies and contractual language to the contrary is unenforceable. Cases Relied Upon by Bill Collectors Third-party contractors operate a volume business with little time for the detailed analyses necessary to determine the validity of FEHBA liens. In our experience, once you respond to a bill collector citing the above authority, you will receive a form response, which cites a few cases from around the country holding that FEHBA liens are enforceable. For a myriad of reasons, most of the cases cited are inapplicable. Unscrupulous bill collectors often rely on what can be charitably called a selective reading of numerous cases from state and federal courts. One such case is Blue Cross Blue Shield Health Plan of Georgia v. Gunter, 541 F.3d 1320 (11 th Cir., 2008). For instance, both authors have received the following from a contractor well known to most plaintiffs counsel: the plan s share of the recovery will not be reduced because [the insured] do[es] not receive the full amount of damages claimed. Id. at (sic). In other words, the Court of Appeals held that the terms of the FEHBA plan preempted Georgia state antisubrogation The full text of Gunter provides: In contrast, FEHBA contract terms provide that, absent express agreement in writing to a reduction, the plan s share of the recovery will not be reduced because [the insured] do[es] not receive the full amount of damages claimed. Therefore, Blue Cross concludes that the application of Georgia s complete compensation rule in a Georgia court would conflict with the federal policy of full reimbursement. Id. at (Emphasis added). The cite is at best incomplete and at worst misleading and disingenuous. This contractor is substituting its arguments for the Court s holding and hoping counsel won t notice. Obviously not every bill collector will cite the above, but the important point is that the careful practitioner must thoroughly review all cited authority to ensure that they are not being misled. Another favorite trick of contractors is to cite cases that predate Congress amendment to 5 U.S.C. 8902(m)(1) and the Supreme Court s decision in Empire. In 1998, Congress amended 8902(m) (1) by simply deleting the words to the extent that such law or regulation is inconsistent with such contractual provisions. Thus, prior to its amendment, a viable argument existed that inconsistent state laws were preempted by contractual provisions. Congress amendment makes it clear that if such preemption ever did exist, it no longer does. Pre amendment cases therefore have no bearing upon the validity of FEHBA subrogation claims. Likewise, any authority presented which predates Empire has no

5 Journal of the Kansas Association for Justice 15 bearing upon the validity of FEHBA subrogation. As such, bill collectors who cite Oetinger v. Polson, 20 Kan. App.2d 255, 855 P.2d 1274 (1994) or Thurman v. State Farm Mut. Auto. Ins. Co., 278 Ga. 162, 598 S.E. 2d 448 (2004) are citing authority which is no longer controlling. Conclusion Although the landscape for FEHBA plan subrogation rights is far from clear, current case law heavily supports the argument that FEHBA does not preempt state anti-subrogation regulations such as K.A.R FEHBA only allows preemption of state laws insofar as they modify the nature, provision, or extent of coverage or benefits[,] not subrogation rights. Perhaps more fundamentally, the notion of FEHBA creating a subrogation interest is unlikely to pass constitutional muster. The practitioner should remember that FEHBA is not the same animal as ERISA and it should not be assumed that a FEHBA health plan would have any subrogation interest in a third-party tort recovery. With knowledge of the cases cited above and the development of the case law throughout the states, the plaintiff lawyer should be well armed to defeat the bill collector s efforts to recoup a portion of the injury victim s recovery. ENDNOTES 1 In rare situations, FEHBA also applies to state and local governmental employees, as well as some private citizens. Typically this occurs when the USDA has some oversight over farm subsidies that are locally administered. Though the analysis of the FEHBA lien s validity is the same in this instance, whether the employee actually falls under the confines of FEHBA is a separate issue. This analysis is outside the scope of this article. 2 5 U.S.C. 8902(m)(1) 3 See Smith, et. al. An Overview of FEHBA and the Power of Its Preemption, Sedgwick in the News, Fall 2005 [also published in the ABA Health Law Sections The Health Lawyer]. 4 5 U.S.C. 8902(m)(1) (Emphasis added) U.S.C (1982). 6 This obvious distinction is noted by then Judge, now Justice, Sonia Sotamayor in the Second Circuit s opinion in Empire, where she succinctly notes: We should be especially reluctant to rely on ERISA-based precedent to justify an expansive interpretation of FEHBA s preemption provision, given the fundamental differences between ERISA and FEHBA. ERISA is significantly more comprehensive than FEHBA, in that it contains multiple preemption provisions and a detailed civil enforcement scheme intended to completely supplant state Empire HealthChoice Assur., Inc. v. McVeigh, 396 F.3d 136, 147 (2d Cir. 2005)

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Mut. Ins. Co., 565 S.W.2d 716, 726 (Mo. App. 1978). Nor is the carrier entitled to proceeds from any claim its insured may have against anyone else. Settlement and Mediation of UM and UIM Claims Michael J. Mohlman Smith Coonrod Mohlman, LLC 7001 W. 79th Street Overland Park, KS 66204 Telephone: (913) 495-9965; Facsimile: (913) 894-1686 mike@smithcoonrod.com

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