Beware the ERISA Healthcare Lien

By Mark Taylor and Peter Wayne

To view a pdf of this article, please click here.

Published in TRIAL Magazine, December 2007; Volume 43, Issue 12

You've negotiated a good settlement for your client. But now the client's health plan wants to be reimbursed for the medical benefits it paid. Can the health plan's lien be defeated--or negotiated down?

Once largely ignored, ERISA liens have become formidable obstacles to settlement and client satisfaction. [1] Plaintiff attorneys cannot afford to overlook their impact. They can lay claim to most or even all of the proceeds from settlement of, for example, a personal injury case involving an auto accident where your client received benefits from an ERISA health plan.

To make matters worse, many states' ethical opinions and rules of professional conduct can now be read to impose a duty to hold disputed funds (such as lien amounts) in the attorney's trust account and even to notify the ERISA lien holder of settlement. [2] These developments present an alarming challenge to the traditional view that an attorney owes no duties to the lien holder. The presence and size of a potential ERISA lien must now be considered when determining whether to even take a case.

What caused this change? In 2006, the Supreme Court's decision in Sereboff v. Mid Atlantic Medical Services, Inc., gave ERISA liens some very large teeth by holding that ERISA plans can enforce complete reimbursement of their liens. [3] The case originated in California, where Marlene Sereboff and her husband, Joel, received health insurance under her employer-sponsored plan. Mid Atlantic Services administered the plan, which was covered by ERISA.

The plan's "acts of third parties" provision stated that if the Sereboffs received benefits for an injury or illness and later recovered damages related to a tort claim against a third party for that injury or illness, the Sereboffs would have to reimburse Mid Atlantic Services for the benefits they had received. The provision also stated that Mid Atlantic's share of the recovery would not be reduced if the Sereboffs did not receive the full damages claimed.

The Sereboffs were injured in a car accident, and the plan paid about $75,000 of the couple's medical expenses. They sued several third parties, seeking damages for their injuries. Shortly thereafter, Mid Atlantic notified the Sereboffs that it was asserting a lien on any recovery they received. The Sereboffs settled the lawsuit for $750,000 but did not pay anything to Mid Atlantic.

Mid Atlantic sued to enforce the lien under §502(a)(3) of ERISA, claiming that it was entitled to reimbursement as a matter of equity. That section of the statute permits a lawsuit to enjoin any act or practice that violates the terms of a plan, or to obtain "other appropriate equitable relief" to enforce the terms of the plan. The trial court found in the company's favor and the Sereboffs appealed, arguing that Mid Atlantic's claim was actually for breach of contract, not equitable relief – the only type of relief granted under §502(a)(3). The Fourth Circuit affirmed, ruling that Mid Atlantic's suit was one seeking equitable relief, and a unanimous U.S. Supreme Court agreed.

Ser eboff has emboldened ERISA plan administrators everywhere and led to sobering interpretations by federal courts. [4] In light of the decision, courts have ruled that ERISA liens can trump a catastrophically injured plaintiff’s need for lifetime care, [5] consume a special needs trust, [6] and lay claim to an entire settlement--including attorney fees. [7] One recent decision that looked like a solid win for plaintiff counsel--holding that an ERISA lien cannot be recovered from a minor's special needs trust--depended more upon procedural technicalities than substantive ERISA law, and should not be given widespread reliance. [8]

ERISA subrogation has thus become a minefield for plaintiff attorneys. If a valid lien is not adequately satisfied, you risk a lawsuit against your client or yourself. Although a plaintiff’s attorney is generally not considered a plan fiduciary, [9] you may still be sued by a plan administrator. [10] You may also be liable for your attorneys fees if your client has signed a reimbursement agreement, even though you yourself were not a party to it. [11] Moreover, if you counsel or assist your client in subverting a valid ERISA claim through deceit or dishonesty, you can also be liable to the plan. [12] Thus, even though an attorney is not a party to the ERISA plan, he or she may still be held liable in a number of ways. Conversely, if you mistakenly pay an invalid lien, you have committed malpractice against your client. If you disburse the settlement before the ERISA lien is resolved, you risk ethical sanctions as well.

Throughout, you must advise and counsel your client that the lien might consume a large portion (and possibly all) of any potential settlement. These dangers are not what the average plaintiff attorney bargains for when taking a case, and it is crucial that ERISA liens be dealt with properly. [13]

Getting started

The first thing you will probably want to know is whether you owe any obligation to the ERISA lien holder. Must you notify the ERISA plan of the third-party claim? Can you simply disburse the settlement funds to the client and leave him or her to work out the lien on their own?

The answers to these questions are changing in light of the Sereboff decision and developing state ethical rules. These sources indicate an emerging duty to ERISA lien holders. State ethics opinions are imposing a duty to hold disputed funds (here, the lien amount) in the attorney's trust account until the lien is resolved. [14]

Therefore, the release of settlement proceeds to your client in the face of a potential ERISA lien could give rise to two separate complaints against you: an ethical complaint based on an alleged violation of a state's rules of professional conduct, [15] and the other see king the remed ies pres cribed b y 29 U.S .C. &sec t;1132(a )(3). [16] You should be aware of these possibilities and act accordingly.

ERISA governs virtually all private employee health plans. [17] When your client's employee health plan asserts a lien on the settlement funds, it is likely to be an ERISA lien. However, there are some exceptions to this rule, such as government employee plans (federal, state, and local) and church employee plans. [18]

The summary plan description (SPD) is the plain-language summary of the plan that the administrator is obligated to furnish to each participant. [19] It is the roadmap to the lien's validity and vulnerability to defenses. Obtaining a copy early is crucial.

The SPD is intended to be a summary of the plan, rather than a full recitation of its terms. For this reason, it is impossible that the SPD "anticipate every possible idiosyncratic contingency that might affect a particular participant's" eligibility for benefits. [20]

Because the SPD cannot capture every detail of the entire welfare benefit plan, there is sometimes a conflict between what is contained in the plan and what is contained in the SPD. If the SPD does not contain specific subrogation language, it is important to understand what courts in the applicable jurisdiction have said about which document--the full plan document or the SPD--controls the plan's lien rights. [21]

In most cases, it is reasonable to treat the SPD as though it is the controlling document; however, on more difficult liens it is wise to demand and review a copy of the entire plan as well. [22] As soon as you receive notice of a potential lien, you should make a written request for the SPD and other necessary documents as discussed below.

Ascertaining enforceability

There are two basic types of ERISA health plans: insured and self-funded. An "insured" plan is a health plan where the employer has purchased a group insurance policy for its employees from a health insurance carrier. A "self-funded" ERISA plan is one in which the employer completely funds the plan and pays for employee health care with its own assets. These two ty pe s of plans and their liens are treated differently under ERISA, due to somewhat confusing rules as to when that federal body of law preempts state insurance law and when it works in tandem with state law.

The general rule is that ERISA preempts state law in the governance of employee health plans. [23] However, the exce ption is found in ERISA's "saving clause," under which state laws regulating insurance are saved from the sweep of federal preemption. [24] This clause greatly narrows the scope of ERISA preemption where health insurance carriers are concerned.

The saving clause provides that health insurance carriers--and th e group he alth insu ranc e po licies they sell to employers--a re subje ct to state law. Thus, claims based on an employee health plan purchased through a health insurance carrier are governed by both state law and ERISA.

However, the "deemer clause," which immediately follows the saving clause in the statute, provides that a self-funded employee benefit plan is not to be considered ("deemed") an insurance company. [25] Application of this somewhat circular statutory language creates the result that self-funded ERISA plans are not subject to state law but health insurance carriers and insured ERISA plans are. [26] Because of this distinction, determining whether an ERISA plan is self-funded or insured is of great importance.

Self-funded ERISA plans are exempt from state law regulation. Because self-funded plans are not connected to an insurance company, they benefit from ERISA preemption. As the Supreme Court said in FMC Corp. v. Holliday, "State laws that directly regulate insurance . . . do not reach self-funded employee benefit plans because the plans may not be deemed to be insurance companies, other insurers, or engaged in the business of insurance for purposes of such state laws." [27]

Insured ERISA plans are subject to state law regulation. When an insured plan asserts a lien against a personal injury settlement, it is the insurer--not the plan--that is attempting to recoup its expenses. Holliday again: "An insurance company that insures a plan remains an insurer for purposes of state laws purporting to regulate insurance after application of the 'deemer clause.'" [28]

Of course, the insurance company is not relieved from state insurance regulation. This was confirmed in Holliday, where the Supreme Court interpreted the deemer clause to mean that "if a plan is insured, a state may regulate it indirectly through regulation of its insurer and its insurer's insurance contracts; if the plan is uninsured, the state may not regulate it." [29]

Given the distinction between insured and self-funded plans, the question arises of how to treat a plan that is self-funded but has also purchased excess or "stop loss" insurance to cover large, unexpected claims. Does the purchase of this type of insurance make an otherwise self-funded plan "insured" for the purposes of ERISA preemption?

In a word, no. The U.S. Department of Labor (DOL) has tak en the position that merely obtaining a stop-loss insurance policy will not cause a plan to lose its self-funded status for ERISA preemption purposes. [30] Although the Supreme Court has not addressed the issue, the DOL's view appears to be uniformly adopted throughout the federal circuits, meaning that the terms of ERISA and th e provisions of the plan will still preempt state law despite the presence of stop-loss insurance. [31]

Determining whether the ERISA plan is insured or self-funded will tell you what rules you're playing by: federal law exclusively or state law as well. This is crucial to evaluating the strength of a lien. Sta te insur ance statu tes and co mm on law will often offer equitable defens es against the lien that are not available under the purely federal law of ERISA. Thus, it is critical to determine whether the ERISA plan is insured and to be familiar with state subrogation law.

The SPD is required to disclose the funding arrangement of the plan. [32] However, not all plan administrators comply with this rule. Some fail to disclose at all, while others--innocently or otherwise--have been known to claim self-funded status when their plans are, in fact, insured. The SPD should not be relied on as the final word on this crucial matter.

Another resource to check is the plan's Form 5500, which must be filed each year with the DOL and must declare the appropriate funding status. Many (but not all) of these documents may be found online at the site “www.freeerisa.com” through searching the Form 5500 filings by employer name. If the Form 5500 cannot be located in this way, one can always be requested from the Plan administrator under 29 U.S.C. §1024(b)(4). [33] Also, if the plan administrator acknowledges that an insurance company is connected to the plan but asserts that the insurer plays merely an administrative role, request a copy of the administrative service contract between the employer and the insurer. Take the time to thoroughly investigate the funding status of the plan--it could make a considerable difference in the plan's right of recovery when it tries to go after your client's settlement proceeds.

ERISA plans often try to enforce their lien against a plan beneficiary's third-party recovery assets with the argument that, because federal law applies, your client must satisfy the lien in full. This argument is often merely a scare tactic.

ERISA carries requirements of its own that a lien must satisfy to be enforceable. Some of these requirements are applied universally; however, others are interpreted with dramatically different results among the federal circuits. An ERISA lien might be fully enforceable in one circuit, and completely unrecoverable in another.

For example, the Sixth Circuit has adopted the "make-whole" doctrine as the default rule, effectively barring recovery of an ERISA lien unless the plan has specifically abrogated it in the plan contract. [34] However, the Fourth Circuit has taken the opposite position that the make-whole doctrine never applies, making the same lien fully enforceable. [35]

As noted above, if the ERISA plan is insu red, state defenses may also affect the plan's ability to recover its lien, and should be understood. Again, these laws vary widely from state to state.

For example, an insured plan in Kentucky could still enforce its lien in full. However, that same plan in Virginia would be unable to enforce its subrogation right due to that state's anti-subrogation statute, allowing you to disregard the lien altogether. [36] Thus, a state or circuit boundary can make a significant difference in the right of reimbursement.

Defining defenses

Once you've obtained a copy of the SPD and understand your jurisdiction's stance on the issues, you can develop a strategy for addressing the lien. This strategy should be based on the defenses that are available given the langu age of th e SPD and t he applicab le law. A few defens es are universal; others depend on the jurisdiction. The following are the most common defenses.

The specific-fund doctrine. In Sereboff, the Court held that an ERISA carrier is able to enforce its plan's third-party recovery provision under federal law as long as the plan "specifically identifie[s] a particular fund, distinct from [the plan beneficiaries'] general assets [namely, the settlement proceeds themselves] . . . and a particular share of that fund to which [the plan] was entitled [meaning up to the amount the plan paid for injury-related care]." [37] This language is critical to all ERISA plans, and will make or break an ERISA lien right from the start.

The reason for this lies in the type of lien-related relief allowed by ERISA. The statute provides that a plan may seek only "equitable relief" to enforce its terms. [38] The equitability of the relief sought stands as the basis for the Court's decision's in Sereboff and the previously controlling decision of Great-West Life & Annuity Insurance Co. v Knudson. [39] In both cases, the Court attempted to decipher what Congress meant by "equitable relief."

In Great-West, the ERISA lien was held unenforceable because the third-party recovery provision of the plan at issue did not specify a particular fund from which to recover the lien. Rather, it sought legal restitution from the client's general assets. [40] The Court held that such relief was "legal" rather than "equitable," and not permissible under ERISA.

Echoing the ruling in Great-West,the Sereboff Court found that one feature of equitable restitution is the imposition of a "constructive trust" or "equitable lien" on "particular funds or property in the [client's] possession." [41] However, Sereboff was distinguished from Great-West in two ways. First, the settlement funds had been set aside pending the resolution of the case and were still in the Sereboffs' possession and control. [42] Second, the Court found that the plan language justified equitable restitution for two reasons: The plan specifically identified the settlement proceeds--apart from the Ser ebof fs' general assets--as being subject to its lien; and the plan limited its right of recovery to only the amount it had paid for injury-related care, as opposed to the settlement as a whole. [43]

By identifying a specific fund from which it would claim reimbursement (the settlement), and limiting that reimbursement to the amount to which it was equitably entitled (the amount it had paid for injury-related care), the plan had created a "constructive trust" on that portion of the settlement. In essence, the Sereboff Court concluded that portion of the settlement rightfully ged to the plan, and its recovery was therefore equitable. [44]

When anal yzing the language of an ERISA plan that is asserting a lien against a client, examine the third-party recovery provision closely. If the language does not identify a specific fund to which it is entitled--namely, the settlement proceeds--or does not limit the plan's recovery to the amount it has paid for injury-related care and is thus rightfully entitled to, then under Sereboff the lien is unenforceable.

The make-whole doctrine. This doctrine is, by and large, a common law rule that limits an insurer's right of subrogation. The Fourth Circuit has explained it this way:

Generally, under the doctrine, an insurer is entitled to subrogation of an insured's recovery only to the extent that the combination of the proceeds the insurer has already paid to the insured and the insured's recovery from the third party exceed actual damages. In other words, the insured must be made whole before the insurer can exercise the right of subrogation.

There currently exists a circuit split as to whether the make-whole doctrine should be applied as the default rule in ERISA subrogation. The Fourth Circuit recently rejected the doctrine as the default rule, reasoning that "such a rule would frustrate the purposes of ERISA by requiring plan drafters to inject legalese into plans rather than use clear, ordinary language explaining the plan's provisions." [46] Other circuits taking a similar position include the First, Third, and Eighth. [47]

However, some circuits do apply the make-whole doctrine to ERISA liens. The Ninth Circuit clearly adopted the doctrine as the default rule, stating that "in the absence of a clear contract provision to the contrary, an insured must be made whole before an insurer can enforce its right to subrogation." [48] Other federal courts of appeals using the doctrine as the default rule include the Sixth, Seventh, and Eleventh Circuits. [49] Many states also apply the doctrine against insured plans. [50]

In jurisdictions supporting the make whole doctrine, it is generally considered only a default rule that can be abrogated by specific plan language. "If a plan sets out the extent of the subrogation right or states that the participant's right to be made whole is superseded by the plan's subrogation right, no silence or ambiguity exists," the Sixth Ci rcuit has said. [51] The policy language abrogating the doctrine must be conspicuous, plain, and clear so that it is understood by the beneficiary. [52] Otherwise, the doctrine will apply. Once again, close inspecti on of the plan language is essential.

If the make-whole doctrine does not apply or has been properly abrogated by the plan, a well-crafted ERISA plan could be entitled to most or even all of the client's settlement proceeds if the settlement amount isn't large enough to satisfy the lien. In these cases, you must rely on y our negotiating skills, as the law may not offer your client a defense against th e lien. You should also notify your client o f this p ossibility, as it will li kely affect the client's incentive to pursue the claim.

The "common-fund" or "common-benefit" doctrine. This doctrine demands that the lien holder contribute to attorney fees. According to the Seventh Circuit, the underlying theory is that to "allow [the insurer] to obtain full benefit from the plaintiff's efforts without contributing equally to the litigation expenses would be to enrich [it] unjustly at the plaintiff's expense.” [53] Reductions for attorney fees are virtually routine with respect to other liens, which is why many attorneys expect the same of ERISA liens. However, the majority of federal circuits have ruled that an ERISA plan need not contribute to attorney fees where its plain language gives it an unqualified right to reimbursement. [54]

Even if the plan is ambiguous or silent on the matter of attorney fees, the question of whether the plan must contribute to the fees is still unsettled. As the Eighth Circuit has put it, "silence on the issue of fees may mean two things: (1) the plan is always entitled to all of its claims for reimbursement regardless of the results such a rule could produce; or (2) the plan will pay reasonable fees and expenses providing some support and incentive to the plan's beneficiaries to move forward with their claims to which the plan will be partially subrogated." [55]

Even though a plan might not explicitly highlight its exemption from attorney fees, various circuits are finding that plan language can be clear enough to put plan participants on notice of that exemption. The Third Circuit, for example, has stated: "It would be inequitable to permit the participants to partake of the benefits of the plan and then, after they had received a substantial settlement, invoke common law principles to establish a legal justification for their refusal to satisfy their end of the bargain." [56] Thus, even if a self-funded plan is silent on the matter, the ERISA lien may not have to be reduced for attorney fees.

Negotiating the perfect lien

It is entirely possible for an ERISA plan to have a fully enforceable lien in place. Savvy plan counsel are likely to ensure that the magic subrogation words are contained in the plan documents, so you should not expect to rely on poorly drafted subrogation provisions in many cases. Also, you might find yourself in an unfavorable jurisdiction.

If the plan language is solid, and all possible defenses are either unavailable or have been abro gated by the plan's terms, the plan can legally demand full payment of the lien. In this event, there are many negotiation tactics to be tried, and others to be avoided.

The wrong approach is to belligerently refuse to cooperate. Before Sereboff, this tactic might have proven successful; however, given Sereboff's clarity on the rights of enforceability, such an approach invites trouble. Refusal to satisfy a valid lien can endanger the cl ient's future benefits and risk litigation by the lien holder. If this approach damages your client's interests, it also raises issues of professional liability against you.

An attitude of cooperative negotiation with the lien holder can go a long way. If you have verified that the plan has a right to recovery, acknowledge that right, but discuss other considerations: The plan administrator m ight consider the facts of the case, your client&rsq uo;s inju ry and loss, or whether th e client has dependen ts.

Above all, keep your client informed of the possible outcomes to encourage realistic expectations. If an ERISA lien is large enough to lay claim to most or all of the settlement, your client should be informed immediately, as this will affect his or her incentive to pursue the case. This can also be used as leverage against the ERISA lien, since if the client doesn’t recover anything, neither does the lien holder.

The legal and ethical ramifications of the Sereboff decision loom large over plaintiff attorneys at a time when that decision has also made ERISA liens substantially more difficult. With a strong knowledge of the law and a calculated approach, many ERISA liens can be resolved beneficially; others, however, may prove to be legally unassailable.

Nonetheless, all ERISA liens must be treated with respect, and they may require nearly as much attention as the underlying liability claim if you want to protect yourself against legal or ethical liability. Failing to give these liens adequate attention may expose you to such liability and could have serious ramifications for your client.

Since the Supreme Court's 2006 Sereboff decision holding that ERISA plans can enforce full payment of their liens, ERISA health plan subrogation has become a minefield for plaintiff attorneys.

If the plan's third-party recovery provision does not specifically assert entitlement to settlement proceeds or limit the plan's recovery to the amount it has paid for injury-related care, then under Sereboff the lien is unenforceable.

An attitude of cooperative negotiation with the lien holder can go a long way. If you have verified that the plan has a right to recovery, acknowledge that right, but discuss the other considerations of the case.