Burdensome ERISA Document Requests and How to Respond: The Important ERISA Documents and What Your Opponent Really Needs

Transcription

1 The Summit of Subrogation: Climbing to New Heights Burdensome ERISA Document Requests and How to Respond: The Important ERISA Documents and What Your Opponent Really Needs

2 Today s Speakers: LAWRENCE & RUSSELL, PLC Lance K. Oliver Managing Partner N. Chase Teeples Associate Attorney

3 INTRODUCTION Plan Documents are crucial. They give ERISA plans their rights to recovery under the Supreme Court s decisions in McCutchen and Montanile. Plans are also required to provide certain documents to their participants and beneficiaries upon request, 29 U.S.C. 1024(b), 1132(c).

4 INTRODUCTION Document requests that seem burdensome can help you to reach the summit of higher recoveries if you handle them efficiently.

5 OUTLINE I. Primer on Plan Documents II. Burdensome Requests from Attorneys III. Make a Burdensome Request into an Opportunity IV. Questions & Answers

6 PRIMER ON PLAN DOCUMENTS For what purposes do we use plan documents? 1) ERISA coverage 2) Funding status

7 PRIMER ON PLAN DOCUMENTS With the following four documents, you can show a lien, ERISA coverage, and self-funded status, if applicable: 1) Master Plan Document 2) Summary Plan Description 3) Form 5500 Plus, 4) Itemization

8 PRIMER ON PLAN DOCUMENTS Master Plan Document ( MPD ) Common Forms: 1) WRAP Document 2) Collective Bargaining Agreement 3) Trust Agreement 4) Generally, NOT an ASA or stop-loss contract

9 PRIMER ON PLAN DOCUMENTS Summary Plan Description ( SPD ) Common Forms 1) Often called a Certificate of Coverage for insured plans 2) Often called a Benefit Booklet for selffunded plans

10 PRIMER ON PLAN DOCUMENTS Form 5500, also known as Annual Report Sometimes can be a simple way to show funding status, but plaintiff s attorneys don t know how to read them. Attend Matt Falk s presentation for more.

11 MPD: GENERAL TALKING POINTS After the Supreme Court s decision in CIGNA Corp. v. Amara, the most important thing that you ll be looking for is a subrogation-andreimbursement provision Remember that courts will resolve all conflicts between plan documents in favor of the Master Plan Document. Courts are split so far on whether silence constitutes a conflict.

12 MPD: GENERAL TALKING POINTS Scenarios and What Language You Need 1) WRAP Language tying plans together 2) MPD & SPD language match 3) MPD & SPD language DO NOT match then you might be in trouble

13 SPD: GENERAL TALKING POINTS Important information you can glean: 1) Plan Name, Plan Sponsor, Plan Administrator, and funding 2) Subrogation-and-reimbursement provision a. Made-whole rule b. Common-fund doctrine 3) Offset provision

14 SPD: GENERAL TALKING POINTS Important Scenario: What do you do when your SPD incorporates another document that you don t have, like an ASA, and plaintiff s counsel wants a copy?

15 FORM 5500: QUICK TIPS Quick Tips: 1) Very small plans are not required to file a full Form ) efast.dol.gov (Official Form 5500 filings)

16 BURDENSOME REQUESTS Attorneys will often ask for all of the documents that a Plan Administrator is required to provide under the ERISA statute. If you are not the Plan Administrator, then you are not required to provide those documents. But you do have to give enough proof to substantiate your clients interests.

17 BURDENSOME REQUESTS

18 BURDENSOME REQUESTS

19 BURDENSOME REQUESTS

20 BURDENSOME REQUESTS Don t get too frustrated by attorney obstinacy. Look at the document request as an opportunity. You get to prove your lien all the way. Especially for self-funded ERISA plans, this should lead to the summit of higher recoveries.

21 MAKE RESPONDING SIMPLE Several options, which will depend on your employer and their policies: 1) Provide what you have, explaining what you ve given and why you don t have more.

22 MAKE RESPONDING SIMPLE Several options, which will depend on your employer and their policies: 2) Refer the member s attorney to the Plan Administrator for additional documents.

23 MAKE RESPONDING SIMPLE Several options, which will depend on your employer and their policies: 3) Ask your client for additional documents.

24 MAKE RESPONDING SIMPLE Once you ve decided on a strategy, take the time to explain thoroughly why you sent what you did and what it means. Don t let the attorney or other party interpret the documents for themselves. Tell them at what they are looking when you send it.

25 MAKE RESPONDING SIMPLE By being thorough, you will (hopefully) only have to deal with a single document request. In dealing with it, you prove up your entitlement to maximum compensation. Proving entitlement to maximum compensation will lead to higher recoveries.

26 QUESTIONS & ANSWERS We will gladly take your questions now. If you can stump both of us, you will win a prize.

27 Today s Speakers LAWRENCE & RUSSELL, PLC Lance K. Oliver Managing Partner lanceo@lawrencerussell.com Phone: (901) N. Chase Teeples Associate Attorney chaset@lawrencerussell.com Phone: (901)