What is the key time period for ERISA reimbursement?

Question: When we request plan documents to assess the plan's right to reimbursement out of a tort settlement, should we ask for the plan terms as they existed at the time of the tort, or at the time of the settlement? I can imagine situations where the reimbursement language may have been changed over time to make the plan's reimbursement rights broader than they were when the plan member was injured.

Answer: In terms of requesting plan documentation we would recommend requesting documentation for each year that coverage was provided for the compensable injuries. This is opposed to requesting plan language in effect at the date of settlement. The reason is simply that subrogation/reimbursement rights are contractually based and the rights arise upon payment of claims by the health plan.