Many ERISA plans have venue provisions. The Secretary of Labor has argued in litigation, however, that these provisions are “incompatible with ERISA.”
Are venue selection provisions in ERISA plans enforceable? YES.
Here’s the case of Smith v. Aegon Companies Pension Plan, __F.3d __ (2014 WL 5125633) (6th Cir. October 14, 2014)(PDF).
FACTS: Smith retired in 2000. In 2007, the Plan was amended to add a venue provision which stated that a “participant or Beneficiary shall only bring an action in connection with the Plan in Federal District Court in Cedar Rapids, Iowa.” In 2011 the Plan informed Smith he had been overpaid $153,283 in ERISA-governed pension benefits. Smith disagreed and eventually brought suit in the federal court in the Western District of Kentucky. The Plan moved to dismiss, based on the venue provision.
SIXTH CIRCUIT HELD (Split decision): Venue selection clause in ERISA plan was enforceable.
- The Secretary of Labor submitted an amicus brief contending venue selection clauses are “incompatible with ERISA.” The Secretary of Labor’s interpretation is “NOT entitled to deference[.]” Op. at 4 (Emph. added).
- “’An [agency] interpretation contained in a brief—like interpretations contained in opinion letters, policy statements, agency manuals and enforcement guidelines—lacks the force of law and is therefore not entitled to Chevron deference.’” Op. at 5.
- The position in the Secretary of Labor’s amicus brief is “not entitled to Skidmore deference.” The Secretary “is no more expert than this Court is in determining whether a statute proscribes venue selection.” Op. at 7.
- “The Secretary of Labor has taken no position, even an informal one, against the enforceability of venue or forum selection…for thirty-nine years….The Secretary’s new interpretation is not consistent with prior acquiescence[.]” Op. at 7.
- “A majority of courts…have upheld the validity of venue selection clauses in ERISA-governed plans.” Op. at 10.
Can the Plan get reimbursed even when the beneficiary’s settlement funds have been disbursed or commingled?
Yes in the 11th Circuit. But watch out in the 9th Circuit.
Here’s the case of AirTran Airways Inc. v. Elem, __ F.3d __ 2014 WL 4694776 (11th Cir. September 23, 2014)(Willful refusal to abide by the terms of the ERISA plan could not destroy the equitable lien that attached before the beneficiary divided the funds with her attorney. The Court rejects Bilyeu v. Morgan Stanley LTD Plan, 683 F.3d 1083 (9th Cir. 2012).)
FACTS: Elem was a participant of the AirTran self-funded welfare benefit plan. Elem sustained injuries in an auto accident, and the plan paid out over $131,000 in medical expenses. The plan designated Elem as a “constructive trustee” over any payments recovered. Elem also acknowledged the plan had a “first priority claim” to all payments made by a third party “even if that third party failed to pay the full amount of her damages.” Elem then sued the tortfeasor and settled for $500,000. When AirTran sought reimbursement, Elem’s attorney misrepresented that the lawsuit settled for only $25,000. AirTran sued for reimbursement.
ISSUE: Whether an equitable lien requires reimbursement after beneficiary has disbursed and commingled settlement funds?
11th Cir. HELD: YES.
- ERISA allows for “appropriate equitable relief.” AirTran sought “to enforce the equitable lien by agreement created by the plan. As soon as [the tortfeasor] gave Elem the settlement funds, AirTran ‘could follow it into the hands of Elem and [her attorney].’” Op. at 8.
- “A remedy of money damages is quintessentially a remedy at law….But when a plan seeks ‘specifically identifiable funds’ in the ‘possession and control’ of a beneficiary, such restitution is equitable in nature.” Op. at 9.
- “[A]ll that matters is that the beneficiary did, at some point, have possession and control of the specific portion of the particular fund sought by the insurer. Once [Elem] possessed these funds, the equitable lien by agreement attached….” Op. at 10.
- The Court rejects the 9th Circuit analysis in Bilyeu v. Morgan Stanley LTD Plan, 683 F.3d 1083 (9th Cir. 2012). “It matters not whether the settlement funds have been disbursed or commingled with other funds.” Op. at 10.
- “[E]ven though Elem willfully refused to abide by the terms of the AirTran plan, her dereliction as a constructive trustee could not destroy the lien that attached before Elem divided the funds with her attorney.” Op. at 11 (Emph. in original).
- AirTran was awarded attorney fees. “[A]n award of attorney fees in this circumstance would help deter others from cheating their employee benefit plan.” Op. at 19.
What happens when the district court orders a remand to the ERISA plan administrator?
Can you appeal it? It depends on the circuit.
Here’s the case of Mead v. Reliastar Life Insurance Company, __ F.3d __ (2nd Cir. September 16, 2014) (Remand in this case was not a final order from which an appeal may be brought).
FACTS: Mead sought ERISA-governed long term disability benefits, which were denied by claims administrator Reliastar. After she filed suit, the district court remanded to Reliastar to calculate the amount of benefits owed. Reliastar appealed, but Mead argued the remand was not a “final decision” from which an appeal can be taken.
ISSUE: Whether an order remanding the claim to the ERISA administrator constitutes a “final decision” from which an appeal may be taken?
2nd Circuit HELD: NO. Appeal Dismissed—Remand decisions are not “immediately appealable.”
- “[S]ister circuits are split on the issue….[T]he First, Fourth, Sixth, Eighth and Eleventh circuits hold that because an ERISA remand order contemplates further proceedings before the plan administrator, it is not ‘final’ and therefore may not be immediately appealed except when the familiar collateral order doctrine applies.” Op. at 7.
- “[T]he Third, Ninth and Tenth [circuits]…permit immediate appeals in certain circumstances.” “[T]he Seventh Circuit… also permits immediate appeals in certain situations.” Op. at 8.
- “Taking into consideration our prior case law and the various analytical approaches used by our sister circuits, we now hold that remands to ERISA plan administrators are not ‘final’ because in the ordinary case, they contemplate further proceedings by the plan administrator.” Op. at 10.
- “We decline, however, to adopt a hard and fast rule that such orders are never immediately appealable[.]“ Op. at 10.
- “[A]fter a determination by the plan administrator on remand, either party may seek to reopen the district court proceedings and obtain a final judgment.” Op. at 11.
You already know that in ERISA cases a court may, in its discretion, award attorney fees if a party achieved “some degree of success on the merits.”
Is the mere filing of a lawsuit, before Plaintiff’s ERISA-governed disability benefit claim is granted, sufficient to win an award attorney fees? NO.
Here’s the case of Koloff v. MetLife Ins. Co, 2014 WL 3420990 (E. D. Cal. July 14, 2014) [PDF].
FACTS: Koloff brought suit seeking disability benefits under an ERISA-governed plan. The Court dismissed the case (without prejudice) because Koloff had failed to exhaust administrative remedies. On December 5, 2013, MetLife informed Plaintiff’s counsel it was sending payment on benefits and asked for information to the net amounts, because of the offset for Social Security benefits. On December 17, 2013, Koloff brought a second lawsuit seeking disability benefits. On December 20, 2013, MetLife sent Koloff the letter approving her disability claim.
Koloff then moved for attorney fees, contending she achieved “some success on the merits.”
DISTRICT COURT HELD: Plaintiff’s Motion for Attorney Fees Denied.
- The Plaintiff’s attorney’s time records strongly suggest that “he knew of MetLife’s intention to approve the claim prior to the filing of the complaint on December 17, 2013….” The administrative record corroborates this, noting the December 5, 2013 conversation in which MetLife advised that it was “getting a check out.” Op. at 7.
- “[T]he Court finds MetLife made the decision to approve plaintiff’s long term disability benefits by December 5, 2013 and, more importantly, made clear to plaintiff’s counsel that the only thing to do was determine the net amount to be paid which would occur once counsel provided MetLife the SSDI and EDD [offset] figures.” Op. at 8.
- “Because there was no dispute as to the merits of the action before the complaint was filed, Plaintiff has shown no “injury in fact.” Op. at 8-9.
- Under ERISA, “fees and costs may be awarded to any party ‘who has achieved some degree of success on the merits.’” A claimant “does not satisfy that requirement by achieving ‘trivial success on the merits’ or a ‘purely procedural victory[.]’” Op. at 10.
- Plaintiff’s counsel should not get attorney fees in her first lawsuit, which was dismissed without prejudice. “[W]hen an individual fails to exhaust administrative remedies, ‘the proper remedy is dismissal without prejudice.’” The dismissal here was not analogous to a remand. Op. at 10.
- “[F]ees expended during administrative processes are not recoverable.” Op. at 12, Fn. 13
- “T]he Ninth Circuit has not yet determined whether the catalyst theory [for seeking attorney fees] is viable in an ERISA action in light of Buckhannon[.]” Op. at 12.
- [T]he facts do not demonstrate that the suit was [a catalyst] or linked to the decision to approve plaintiff’s benefits….Plaintiff’s counsel was informed that benefits would be paid before the litigation was initiated.” Op. at 13-14.
You have seen this issue before: The court remands the ERISA-governed long term disability claim for further consideration by the claims administrator because the administrative record was insufficient for de novo review.
Is a court’s remand for further review of an ERISA-governed claim by the claims administrator a sufficient “degree of success on the merits” to qualify for an award of attorney fees and costs?
Is merely “surviving to fight another day” the same as winning the war or winning a significant battle? Maybe so.
Here’s the case of Gross v. Sun Life Assurance Company of Canada, __ F.3d __ (1st Cir. Slip. Op. August 14, 2014) (PDF).
You should read this opinion, and the dissenting opinion, because it outlines arguments (and cites the cases nationally) on both sides of the issue…
FACTS: Gross, age 34, claimed fibromyalgia disabled her and she sought long term disability benefits. The claim was denied based in part on surveillance. The court held that de novo review applied, but remanded to the claims administrator because the administrative record was insufficient for de novo review. Plaintiff’s counsel sought $261,000+ in fees and costs.
FIRST CIRCUIT HELD: (Split decision with dissenting opinion)
- “Under ERISA, a court ‘in its discretion may allow a reasonable attorney’s fee and costs to either party’ in a benefits proceeding. Op. at 5.
- To obtain fees the fee-seeker does not have to show she is a “prevailing party, but only that the ‘claimant show some degree of success on the merits.’” Op. at 5.
- The United States Supreme Court “declined…to decide ‘whether a remand order, without more, constitutes some degree of success on the merits’ sufficient to make a party eligible for attorney fees under [ERISA].’” Op. a 6.
- “Most courts…have held that a remand to the plan administrator…is sufficient success on the merits to establish eligibility for fees….” Op. at 7-8 (Cases cited).
- Some federal districts courts in Colorado, Michigan, Florida have held remand does not justify fees because remand is “a purely procedural victory” and claimant has yet to achieve any “degree of success on the merits.” Op. at 8-9 (Cases cited).
- “A remand to the claims administrator for reconsideration of benefits entitlement ordinarily will reflect the court’s judgment that the plaintiff’s claim is sufficiently meritorious that it must be reevaluated fairly and fully.” Op. at 10.
- The Court rejected Sun Life’s argument that an award of some amount of benefits is necessary to establish “some degree of success.” Op. at 10-11.
- DISSENT: Remands alone are insufficient “success” to award fees because: “Surviving to fight another day is not the same as winning the war (or even the same as winning a significant battle).” Op. at 31.
- DISSENT: “[T]he merits issue in this case is whether the plaintiff is entitled to benefits (and, if so, to what extent). As long as the plaintiff secures some benefits as a result of litigation, she will be eligible for a fee award. At [remand], however, the benefits claim is entirely up in the air. We simply do not know whether her claim will prove to be successful in whole, in part, or not at all.“ Op. at 32. (Emph. added).
Does your ERISA claim benefit denial letter preserve the contractual limitations defense?
If your denial letter fails to expressly state the contractual limitations timeframe, it might not preserve that defense.
Here’s the case of Moyer v. Met Life Ins. Co., __ F.3d __ (6th Cir. August 7 2014)(2-1 decision).
FACTS. Moyer made a claim in 2005 for disability under an ERISA-governed Long Term Disability Plan. The plan had a contractual limitation provision which states: “[n]o lawsuit may be started more than 3 years after the time proof [of a claim] must be given.” Met Life initially approved the claim. In 2007, Met Life determined Moyer could perform work in “any occupation.” Met Life denied the appeal on June 20, 2008. The denial letter included notice of the right to judicial review, but did not expressly state that a three year contractual time limit applied. Moyer sued Met Life on February 20, 2012.
DISTRICT COURT HELD: Case dismissed because the plan contained a three-year limitations period for filing suit. The Plan provided constructive notice of the time limit.
SIXTH CIRCUIT HELD: REVERSED (SPLIT DECISION)
- 29 C.F.R. Section 2560.503-1 requires ERISA-governed denial letters to provide “the time limits applicable to [the plan’s review procedures], including a statement of the claimant’s right to bring a civil action….” Op. at 4 (Emphasis in original).
- The applicable time limits for bringing a civil action “must be provided” in the benefit determination letter. Id.
- The “failure to include the judicial review time limits in the adverse benefit determination letter renders the letter not in substantial compliance with [ERISA] Section 1133.” Op. at 5.
- DISSENT. “Ample authority counsels against the majority’s approach.” Dissent at 8.
- DISSENT. “[C]ourts elsewhere split on whether the regulation requires a claim-denial letter to inform a plan participant of both their right to bring a civil action and the action’s limitations period. [T]he purpose of Section 1133 is limited to assuring review by the plan fiduciary.” Dissent at 9 (Emphasis in original and cases cited.)
- DISSENT. “The majority gives short shrift to the ‘substantial compliance’ test.” Dissent at 9.
What sort of “medical treatment” triggers the pre-existing condition exclusion in an ERISA-governed disability policy?
Can taking over-the-counter vitamin supplements trigger the exclusion? YES.
Here’s the case of Kutten v. Sun Life Assurance Company of Canada, __ F.3d __, 2014 WL 3562784 (8th Cir. July 21, 2014) (pdf).
FACTS: Kutten had a progressive eye disease. In 1994, his doctor directed him to start taking daily 15,000 unit doses of an over-the-counter vitamin A supplement. This could slow, but not cure, this progressive disease which can lead to blindness.
In June 2010 Kutten’s employer bought a new policy for the ERISA-governed disability benefit. This new policy excluded pre-existing conditions, defined as a condition in which the employee “received medical treatment, care or services, …or took prescribed drugs or medicines for the disabling condition” 3 months before the start of the policy. Kutten applied for disability benefits. Sun Life concluded the vitamin A supplements triggered the pre-existing condition exclusion as “medical treatment” and denied the claim. Kutten sued.
ISSUE: Do vitamin supplements constitute “medical treatment” sufficient to trigger the pre-existing condition exclusion?
TRIAL COURT HELD: Plaintiff wins — vitamin A supplements are not a “medical treatment” because such use does not require the same medical intervention as “prescribed drugs or medicines.”
EIGHTH CIRCUIT COURT OF APPEALS: REVERSES (2-1 decision)
- “Drawing a sharp distinction between ‘prescribed drugs or medicines’ and ‘medical treatment’ is a virtually impossible task because ‘prescribed drugs or medicines’…are forms of ‘medical treatment.’” Op. at 5
- “[T]he ordinary meaning of the phrase ‘medical treatment’ would encompass Kutten’s vitamin A supplements. The supplements are ‘medical’ in the sense that they prevented or alleviated the progression of Kutten’s [eye disease and]… constituted a ‘treatment’ because it was the ‘manner,’ in fact the only manner, by which Kutten could ‘care for’ his condition.” Op. at 6.
Here is a recent news item showing the scope of the employee disability problem.
In a nutshell:
There are more disabled employees than ever. As of May 2014, the total number of Social Security disability beneficiaries in the United States hit an all-time high of about 11 million beneficiaries.
But fewer employees are covered with long term disability coverage. The number of U.S. workers with long-term disability coverage decreased 6% from 2009-2013.
- fewer employers are offering long term disability coverage: down from 220,000 to 214,000
- fewer employees have long term disability coverage: down from 34 million to 32.1 million
- more total number of employees in the U.S. workforce: up 6.6 million
An excellent article out of the July 17, 2014 Portland Press Herald summarizes the issue. http://www.pressherald.com/2014/07/17/employers-dropping-long-term-disability-coverage/
You already know that impairment can be assessed through a Functional Capacity Evaluation (FCE).
But what happens when the claimant refuses to perform tasks requested, or does not try hard enough during the FCE?
Can you deny the claim for “lack of cooperation”? Sometimes YES.
Here’s the case of Ortega-Candelaria v. Johnson & Johnson, __ F.3d __, 2014 WL 2696725 (1st Cir. June 16, 2014).
FACTS: In June 2003, plaintiff applied for ERISA-governed disability benefits because of back pain, anxiety and panic attacks. He failed to cooperate in a number of Functional Capacity Evaluations (FCEs) conducted by a physical therapist. Plaintiff “declined all lifting, carrying, pushing, pulling and climbing activities” and gave a “sub-maximal effort” on tasks. The Plan discontinued benefits “due to his lack of cooperation in the evaluation process.” Plaintiff sued, claiming a doctor had to conduct the FCE. The trial court granted summary judgment for the plan.
FIRST CIRCUIT HELD: AFFIRMS SUMMARY JUDGMENT.
- The results of the FCE “‘suggest[ed] very poor effort or voluntary sub maximal effort, which is not necessarily related to pain, impairment or disability.’” Op. at 10.
- “He failed 86% of the validity criteria…Video footage supports the conclusion that [plaintiff] was not cooperative.” Op. at 19.
- “The Plan terms require that [plaintiff] cooperate during evaluations of his disability status; without such cooperation the plan administrator [can reduce or terminate benefits].” Op. at 20.
- The decision to terminate benefits due to lack of cooperation was not an abuse of discretion. Op. at 20.
- An FCE evaluates a medical condition; a physician is not required for the test to be used in assessing impairment. Op. at 23.
Medical providers often have a patient/ERISA plan participant assign rights under an ERISA health care plan to allow the medical provider to seek payment for medical services provided.
But what if the patient/plan participant never was billed for the medical services? What rights are there to assign?
Is that an effective assignment? YES.
Here’s the case of Univ. of Wisconsin Hospital and Clinics, Inc. v. Aetna Life Ins. Co., __ F.Supp. 2nd __, 2014 WL 2565284(W.D. Wis. June 6, 2014) (Derivative standing allows hospital to obtain reimbursement for medical services provided).
FACTS: ADP provided a health plan to employees, including James Vana. UW Hospital performed a heart catheterization for Vana, costing $14,000. Aetna paid $1,919 of the bill, but refused to pay the rest because Vana and the hospital failed to get precertification for the procedure.
Vana assigned his rights to reimbursement to UW Hospital, and the Hospital sued for reimbursement. Aetna argued: UW Hospital lacks standing to sue because Vana never received a bill.
ISSUE: Whether the hospital lacked standing to sue because the patient/plan participant never was billed for medical services, and thus had no rights to assign?
DISTRICT COURT HELD: Assignment effective — hospital had “derivative standing.”
- UW Hospital had standing to sue. “[D]erivative standing. . .[furthers] the purposes of ERISA ‘to protect the interests of participants in employee benefit plans and their beneficiaries.’” Op. at 8-9.
- “If provider-assignees cannot sue the ERISA plan for payment, they will bill the participant or beneficiary directly for the insured medical bills, and the participant or beneficiary will be required to bring suit against the benefit plan when claims go unpaid.” Op. at 9 (citations omitted).
- “[P]roviders …are better situated and financed to pursue an action for benefits owed for their services [and] the interests of ERISA participants and beneficiaries are better served by allowing provider-assignees to sue ERISA plans.” Op. at 9 (citations omitted).
- Aetna’s denial of reimbursement was arbitrary and capricious because: (a) Vana would “plainly be entitled to benefits under the plan”; (b) Aetna failed to articulate “to UW Hospital a legitimate reason for its denial”; and (c) Aetna “interpreted its policy in an unreasonably contradictory manner.” Op. at 10.