PREEMPTION QUESTIONS AND ANSWERS ERISA PREEMPTION QUESTIONS 1. What is an ERISA plan? An ERISA plan is any benefit plan that is established and maintained by an employer, an employee organization (union), or both, for the purposes of providing its participants and beneficiaries, through the purchase of insurance or otherwise: (1) medical, surgical, or hospital care benefits; (2) benefits in the event of sickness, accident, disability, death, or unemployment; (3) vacation benefits; (4) apprenticeship or other training programs; (5) day care centers; (6) scholarship funds; or (7) pre-paid legal services. See 29 U.S.C. 1002(1) 2. What types of plans are not governed by ERISA? (1) Individual Plans (2) Medicare Advantage Plans (3) Medicaid HMO s (4) Governmental Plans (5) Church Plans Individual plans (insurance purchased privately by individuals or families) and plans established to replace Medicare or Medicaid are not sponsored by an employer and therefore do not meet ERISA s definition of employee benefit plans and are therefore excluded from ERISA. ERISA specifically excludes from coverage all employee benefit plans established and maintained for its employees by: (1) the United States Government, or by the government of any State or political subdivision thereof, or by an agency or instrumentality of the foregoing; (2) a church or convention of churches. See 29 U.S.C. 1003(b); 29 U.S.C. 1002(32); 29 U.S.C. 1002(33) 3. What type of actions can be brought by employee benefits plans under ERISA? Where can such claims be filed? Congress intended the civil enforcement scheme established by ERISA to be the exclusive remedy for violations of an employee benefit plan. ERISA s civil enforcement scheme provides causes of actions to: (1) participants (employees) and beneficiaries (dependents); (2) fiduciaries (such as employers and plan administrators); and (3) the Secretary of Labor.
Of all of the actions allowed, only two causes of actions potentially affect the plan s rights of subrogation and reimbursement. Actions under 29 U.S.C. 1132(a)(1)(B) and 29 U.S.C. 1132(a)(3) 502(a)(1) Actions ERISA plan participants (employees) and beneficiaries (dependents) may brings claims to: (A) seek penalties if the plan fails to provide information requested by participant or beneficiary (up to $110 per day in the court s discretion); (B) to recover benefits dues under the plan, to enforce his rights under the terms of the plan, or to clarify rights under the terms of the plan. State and federal courts have concurrent jurisdiction over 502(a)(1) claims. 502(a)(3) Actions ERISA plan participants, beneficiaries and fiduciaries (such as employers and administrators) may bring actions to: (A) enjoin any act or practice which violates the provisions of ERISA or the terms of the plan; (B) obtain other appropriate equitable relief to redress such violations or to enforce the terms of ERISA or the plan Federal district courts have excusive jurisdiction over 502(a)(3) claims. See. 29 U.S.C. 1132(e)(1). 4. How do you determine a plan s funding status? What does it mean to be a self-funded or insured plan? Employers can funds an employee benefit plan in many different ways. For instance, the employer can purchase insurance policies to provide benefits to its employees. This type of plan is an insured-erisa plan. Instead of using the contributions to purchase insurance, many large employers will take the contributions and place them in a trust. The employer will then use this trust to provide benefits to participants and beneficiaries. This type of plan is known as a self-funded ERISA plan. Self-funded plans often engage a third party administrator (or TPA ) to administrate its claims. TPA will contract with providers (much like insurance networks), but all of the payments come directly from the trust. Self-funded plans can often provide the same benefits with lower contributions because the employers does not make a profit for running the plan. In other words, there is no premium for assuming the risk.
5. How does ERISA preemption affect an ERISA plan s rights of subrogation and reimbursement? One of the primary goals of ERISA is to provide a uniform regulatory system for the administration of employee benefit plans. Accordingly, Congress provided that employee benefit plans would be governed by federal, as opposed to state, laws. The Courts have interpreted ERISA to have two forms of preemption: (1) Statutory or Express Preemption (under ERISA 514); and (2) Complete Preemption (under ERISA 502). 514 Preemption Statutory or Express Preemption ERISA s statutory preemption provision can be broken down into three clauses: (1) the preemption clause; (2) the savings clause ; and (3) the deemer clause. (1) Preemption Clause: ERISA shall supersede any and all state laws that related to employee benefit plans. The relate to requirement of the preemption clause has been interpreted very broadly. Thus, a state law is found to relate to and employee benefit plan if it has any connect or affect on the employee benefit plan. (2) Savings Clause: ERISA does not supersede (preempt) state laws that regulate: (1) insurance; (2) banking; or (3) securities. The United States Supreme Court has adopted a two part test to determine whether a state law regulates insurance : To regulate insurance, a state law must: (1) be a law that is aimed at the insurance industry; AND (2) affect risk pooling. See Kentucky Association of Health Plans v. Miller, 533 U.S. 926 (2001). (3) Deemer Clause: State laws cannot deem self-funded plans to be insurers for the purpose of state regulation. Statutory/Express Preemption goes by many names. It is also referred to as conflict preemption and ordinary preemption. 502 Preemption Complete Preemption The United States Supreme Court has determined that Congress intended ERISA s civil enforcement scheme provided in ERISA 502 to be the exclusive remedies for enforcement of rights and obligations under an employee benefit plan. Thus, the courts have held that any state law that provides an alternative remedy or means to enforce an employee benefit plan is completely preempted
by ERISA regardless of whether it meats the requirements of the 514 preemption. For example, in Aetna v. Davila, 542 U.S. 200 (2004) the United States Supreme Court found that ERISA preempted a Texas statute that established a cause of action against insurers for violating a standard of care when denying benefits for not being medically necessary. Note: The Ninth Circuit Court of Appeals in Providence v. McDowell, 385 F.3d 1168 (9 th Cir. 2004) has held that state breach of contract actions are not preempted by ERISA because they do not relate to employee benefits plans. Thus, under this interpretation, ERISA plans may file actions in state court to enforce reimbursement provisions within the plan. This case, which has been highly criticized, does not address a complete preemption analysis. Unfortunately, breach of contract actions rarely meet federal jurisdiction requirements and must be brought in state courts Some states within the Ninth Circuit have age of this argument within the Ninth Circuit, we have been hesitant to attempt to extend this precedent to other circuits are litigate the matter. 6. What type of state laws should be examined for ERISA preemption? State laws: (1) barring enforcement of subrogation/reimbursement provisions; or which apply (2) the make-whole doctrine; (3) the common fund doctrine; or (4) collateral source reductions should all be reviewed for ERISA preemption. 7. How do the US Supreme Court Decisions in Knudson and Sereboff affect an ERISA plan s rights of subrogation and reimbursement? Under ERISA, plan fiduciaries may only bring actions seeking injunctions and other appropriate equitable relief. The United States Supreme Court has interpreted appropriate equitable relief in two cases. Great-West Life & Annuity Insurance Company v. Knudson, 534 U.S. 204 (2002) This case involved a plan beneficiary that was severely injured in a motor vehicle accident. As a result of injuries she received in the action, the beneficiary received benefits under her ERISA plan in the amount of $411,157.11. The beneficiary brought an action against the manufacturer of her vehicle and settled that case for $650,000. Because the beneficiary received head injury in the action, the beneficiary was not capable of handling her own affairs. As such, the proceeds of the settlement were placed in a special needs trust under California law.
The ERISA plan sought to be re-paid for the $411,157 in benefits extended on behalf of the beneficiary. When no settlement could be reached, the plan brought an action against the beneficiary in federal district court seeking appropriate equitable relief under ERISA 502(a)(3). The equitable remedies sought included: (1) injunction; (2) specific performance of the plan; and (3) restitution. The district court dismissed the plan s claim for lack of subject matter jurisdiction finding that the plan did not seek appropriate equitable relief against the beneficiary. The Ninth Circuit Court of Appeals affirmed. Ultimately, the United States Supreme Court granted the plan s petition for certiorari. In examining whether the plan s claim constituted equitable relief, the Court determined that ERISA allows only those categories of relief that were typically allowed in equity in the days of the divided bench. As such, the Court held that injunctions and specific performance were not available because these remedies were general not allowed to command the payment of money. Next, the Court examined the plan s claim for restitution. For the first time, the Court advised that restitution was available both in courts of equity and courts of law. It held that: restitution in equity, ordinarily in the form of a constructive trust or an equitable lien, where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds in the defendant s possession. A court of equity could then order a defendant to transfer title (in the case of a constructive trust) or grant a security interest (in the case of an equitable lien) to a plaintiff who was, in the eyes of equity, the true owner. Knudson at 213. Because the plan beneficiary was not in possession of the settlement funds, the Knudson Court held that the plan did not seek appropriate equitable relief under ERISA. It affirmed the dismissal based on lack of subject matter jurisdiction. Because the issues were not before the Court, the Knudson opinion specifically refrained from addressing whether ERISA would preempt (and thus prohibit) a plan s right of subrogation, or a plan s right to pursue a breach of contract in statute court. Sereboff v. Mid Atlantic Medical Services, Inc., 126 S.Ct. 1869 (2006)
After the Knudson decision, there was a flood of litigation regarding whether the remedies of constructive trust and equitable liens appropriate equitable relief under ERISA when seeking enforcement of an ERISA plan s reimbursement provision. Ultimately a split occurred among the Courts of Appeals. The Sixth and Ninth Circuits held that equitable relief was never available when seeking money under the terms of an ERISA plan. See Qualchoice, Inc. v. Rowland, 367 F.3d 638 (6 th Cir. 2003); Weststaff v. Arce, 298 F.3d 1164 (9 th Cir. 2002). Meanwhile, the Fourth, Fifth, Seventh, Eighth and Tenth Circuits all recognized that equitable relief was available when the defendant had possession of the disputed funds. Ultimately, the United States Supreme Court took its third ERISA subrogation case to resolve the conflict. The facts of Sereboff are somewhat similar to those in Knudson. An ERISA plan participant and beneficiary were injured in an automobile accident. The participant and beneficiary brought a lawsuit against the responsible parties, and settled that lawsuit for $750,000. After the settlement, they refused to reimburse the ERISA plan for the $75,000 in benefits made on there behalf. The ERISA plan then filed suit in federal district court asking that the court impose a constructive trust over the settlement funds (which were being held in a money market account). The district court granted the plan s motion for summary judgment and ordered that $75,000 be paid to the ERISA plan. The Fourth Circuit Court of Appeals affirmed the decision. The United States Supreme Court granted the participant s petition for certiorari. In a unanimous decision, authored by Chief Justice Roberts, the Court held that plan s reimbursement provision constituted an equitable lien by assignment which had previously been considered equitable relief by the Court. As such, the Court affirmed the granting of summary judgment in favor of the plan. One of the arguments made by the plan participant in Sereboff, was that the equitable relief sought by the plan was subject to equitable defenses (such as the make-whole rule). The Court held that whether the plaintiff has been made whole would not affect the equitable nature of the plaintiff s claim, and therefore equitable defenses were beside the point. In their merit brief before the Supreme Court, the participant also argued that the relief was not appropriate because the participant had not been made whole. Since the participant did not make this argument in the lower courts, the Supreme Court did not consider this argument. This argument was addressed in foot note 2 of the Sereboff opinion.
ERISA PREEMPTION IS A STATE LAW PREEMPTED BY ERISA? Is the plan sponsored and maintained by employer? Law is not preempted by ERISA. Is the employer a governmental entity or a church? Does the law relate to employee benefit plans? Law is preempted by ERISA. Does the law regulate insurance? SELF-FUNDED Is plan self-funded or insured? INSURED Is the law a cause of action to enforce an ERISA plan?
FEHBA PREEMPTION QUESTIONS AND ANSWERS 1. What is FEHBA? FEHBA is the Federal Employee Health Benefits Act. This act gives the Office of Personnel Management ( OPM ) the ability to contract with health insurers to provide health benefits to federal employees. The OPM contracts with numerous insurers around the county. Although the terms of federal employee plan may differ from insurer to insurer, all contracts are approved by the OPM. 2. Does FEHBA have a preemption provision? Yes. Pursuant to 5 U.S.C. 8902(m)(1): The terms of any contract under [FEHBA] 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 law, or any regulation issued thereunder, which relates to health insurance or plans. 3. Do the federal courts have jurisdiction over FEHBA reimbursement claims? FEHBA vests the federal court with jurisdiction over claims by enrollees against the United States seeking payment of benefits. It does T mention claims by carriers seeking enforcement of the plans. Nevertheless, many carriers brought reimbursement actions in federal court under federal question jurisdiction, since the contract was created under federal law and was governed by a federal statute. The United States Supreme Court recently reviewed the federal jurisdiction in Empire Health Assurance, Inc. v. McVeigh, 126 S.Ct. 2121 (2006). McVeigh involved a FEHBA carrier who brought an action against a plan enrollee seeking enforcement of the plan s reimbursement provision. The district court dismissed the claim for lack of subject matter jurisdiction. The Second Circuit Court of Appeals affirmed. Five days later, the Seventh Circuit Court of Appeals reversed a district court dismissal, holding that federal jurisdiction does exist for FEHBA reimbursement claims. The United States Supreme Court granted certiorari on the McVeigh case to resolve the split among the circuits. In a 5-4 opinion authored by Justice Ginsburg, the United States Supreme Court affirmed the dismissal of the case of lack of subject matter jurisdiction. In the decision, the Court acknowledged that federal jurisdiction can exist when state
law would: (1) present a significant conflict; (2) with a unique federal interest. The Court held that the FEHBA carrier had not shown that the application of state jurisdiction would conflict with the federal government s interest in enforcing the plan. Since McVeigh, the BCBS Association has maintained that there is federal jurisdiction in states that apply the make-whole doctrine. They continue to bring actions in federal court. In states where there is no law conflict with the FEHBA plan reimbursement provision, FEHBA actions must be brought in state court. 4. Doesn t FEHBA preempt state make-whole and common fund doctrines? On its face, FEHBA would appear to preempt any state laws such as the make whole doctrine and common fund doctrine. Unfortunately, the McVeigh decision calls into question the scope of FEHBA s preemptive power. Specifically, the Court issued a dictum stating: a reimbursement right of the kind asserted by Empire stems from a personal injury recovery, and the claim underlying that recovery is plainly governed by state law. This Court is not prepared to say, based on the representations made in this case, that under 8902(m)(1), and OPM-BCBSA contract term would displace every condition that state law places on that recovery. The full application of this dictum by the courts will be resolved through litigation. As of now, when a FEHBA contract specifically provides a right of reimbursement regardless of whether the plan member is made whole and regardless of the attorneys fees paid, we take the position that opposing state law is preempted by FEHBA.