How Do You Analyze ERISA Plans To Determine A "Lien"?

Question
I was perusing your blog and noticed a comment on Missouri being an anti-subrogation state but that such is preempted by ERISA. While I agree with that general statement, I have a puzzling question. As an attorney for an insurance company, I consistently see lawyers asking me to ignore the ERISA "lien" (which I call a subrogation interest rather than a lien). If I tell them I must honor ERISA's "lien", they tell me the deal is off. I'd like to be assured that the plan cannot sue the insurance company if I refuse the honor the "lien," but no attorney has been able to convince me.

My position has always been that Knudson prohibits the plan from suing the insurer for not including the plan on the settlement check as they have no remedy at law. However, some plan will provide me with a signed "lien" which appears to voluntarily executed. If a plan asserts that the anti-subrogation status of Missouri is preempted by ERISA, is the Plan held to the sole remedy of equitable relief in that they cannot assert an action at law against the insurer for not honoring the purported lien? Or, can the plan assert that they have a voluntary lien agreement (which Missouri recognizes under Ford v Allstate, 2 SW3d 810) with the beneficiary for which the tortfeasor's insurance company must honor or face an action at law for not honoring it? In other words, can they choose not to opt for preemption where it benefits them even though we would have to analyze the ERISA qualified plan to determine whether they have legitimately obtained a non-voidable lien?

Missouri Attorney

Answer
Thank you for the question. I will admit that the situation presented can be difficult to wrap one's head around and I can certainly understand the confusion. That said, I think we can break things down to gain a clearer perspective. Simply put, I believe there are two approaches that a health plan could utilize to seek recovery; one under ERISA and another under state law contract/lien principles. From your inquiry it is apparent that you are well versed in this subject matter and it is hoped that some of the more basic material below does not bore you as elementary knowledge. Because of the complex nature of these issues I find it is always better to be as complete and thorough as possible.

Before diving into the analysis I also want to point out that I am in complete agreement with your approach of referring to ERISA interests as an interest rather than a "lien". When GFRG refers to an "ERISA lien" it is more a term of convenience than an accurate legal statement. We both know the term "lien" has a significant legal meaning and using the phrases subrogation or reimbursement interest is more appropriate.

First Approach: ERISA (a plan may seek "appropriate equitable relief")

ERISA defines an employee welfare benefit plan as a plan, fund, or program; established or maintained; by an employer, an employee organization, or both through the purchase of insurance or otherwise, for the purpose of providing medical, surgical, or hospital care or benefits or benefits in the event of sickness, accident or disability, for its participants or their beneficiaries. The ONLY exceptions are individual plans, government plans, and religious group plans. ERISA expressly preempts state laws insofar as they relate to employee benefit plans (29 U.S.C. 1144(a)). HOWEVER, under ERISA this preemption does not apply to those laws which regulate insurance, banking, or securities (29 USC 1144(b)(2)(A). This is known as the savings clause and if an ERISA plan is in fact insured you can use state law defenses such as the anti-subrogation approach of Missouri. (Missouri "" Travelers Indem. Co. v. Chumbley, 394 SW 2d 418"¦ health plans are barred from seeking recovery through subrogation or reimbursement because under MO law a claim for personal injuries is not assignable).

To avoid the state prohibition through preemption, an ERISA plan would need to prove that it is self-funded. This can be done through various documentation including the summary plan description, the annual Form 5500, and if need be an affidavit from the plan administrator.

Assuming that an ERISA plan has validated its self-funded status and its corresponding right of preemption, the plan is entitled to appropriate equitable relief as provided under ERISA and Sereboff, 126 S.Ct. 1869 (2006). As you correctly state in your inquiry, the sole remedy is equitable relief and they cannot assert an action at law under ERISA. Thus a plan may seek its right of subrogation or reimbursement as provided in its plan language so long as that language seeks recovery from a specific fund (third party proceeds) and a specific portion of said fund (amount of benefits paid under plan). The plan could not seek an action at law against a third party insurer under ERISA.

Second Approach: State Law ("lien on proceeds")

This approach would be applicable in a case where a plan has obtained a voluntary lien agreement. Please note that this response is dealing directly with a health plan rather than a provider who has a voluntary lien. I believe that a lien granted to a provider for services should be evaluated in a different manner.

There are two important considerations when looking at an ERISA plan's right when a voluntary lien agreement is involved. First and foremost, the lien agreement is almost certainly a direct product of the plan's summary plan description language dealing with subrogation/reimbursement. For a valid reimbursement agreement to be utilized a plan arguably must have some reference or requirement in its plan language to such an agreement. Why? If there was no reference such a reimbursement agreement would be void for lack of consideration since the plan is already obligated to pay for the benefits. If on the other hand there was a reference then the agreement was just another specific term in the plan language regarding subrogation/reimbursement. I truly believe that an ERISA plan would have a very difficult time differentiating this separate agreement from its subrogation/reimbursement rights under the plan language.

The second consideration is the Ford v. Allstate case, 2 SW 3d 810. The Court here allowed a lien on a claim (rather than an assignment of the claim) for personal injury. What is important to note is that this case dealt with a lender who was granted a lien for adequate consideration. It is also important to note that in fn. 3 the Court specifically mentions that had this case dealt with subrogation the analysis and results may have been different. Furthermore the Schweiss v. Sisters of Mercy case, 950 SW 2d 537, addresses reimbursement provisions and the fact that such agreements imposed by health plans would be invalid as against public policy under MO state law.

While a health plan could assert a right under MO law and the theory of a voluntary lien, it appears that such an approach would be difficult to differentiate from its rights under ERISA. It has been our experience that the ERISA right of recovery is always preferred and plans will take this over state created remedies. The reason is that state law will have greater protections for the plan participant and the right of action under state law can be harder to prove/proceed under.

I hope you found this analysis helpful and please let me know if you have any additional questions or comments. Thanks for the inquiry.

My Best,
Michael D. Russell, Esq.