Is there a statute of limitations on ERISA subrogation claims?

I am often asked the question, "Is there a statute of limitations on ERISA subrogation claims."  Most often, this question arises when a claim is settled and the lawyer had no knowledge of any ERISA subrigation rights and months or years later the lawyer receives a letter from a subrogation collection company.

Like so many legal questions, the answer is "maybe."  Possibly the better answer is, "you are best off to not ever have to ask this question."

The reason for the later response is that the law is very unclear on when the statute of limitations begins to run on an ERISA subrogation claim.  Obviously, if the Plan language sets out a clear statute for collecting on the claim, the answer may be easier, but I can't think of a Plan that has ever clearly set a statute within the subrogation language.

Because of that, the lawyer is left trying to reconcile federal ERISA law with state statutes of limitations and also to attempt to determine who had what notice of the insurance claim and when.

 

Professor Baron, one of the undisputed experts on ERISA law, wrote an excellent article setting out the case law on SOL issues in ERISA claims.  I highly recommend you read this article:  http://erisawithprofessorbaron.com/wp-content/uploads/Defeating-an-ERISA-Lien-with-the-Statute-of-Limitations.pdf

Professor Baron's website is treasure trove of good information on ERISA law:  http://erisawithprofessorbaron.com/

Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

Highlights of the new Medicaid Subrogation lien statute after Wos v EMA Supreme Court Case

I'm a little late posting this new statute on my blog because I was so involved in getting the new Medicaid subrogation statute trimmed down and written in a way that it would be workable for trial lawyers.  These changes were the result of the US Supreme Court Ruling in Wos v EMA issued March 20, 2013.

The Governor signed the new bill incorporating the holding of Wos on July 18, 2013.  The bill is effective immediately.  You can view House Bill 982, in final mark-up version here:  House Bill 982 

Here are the things we KEPT in the old § 108A-57. Subrogation rights; withholding of information a misdemeanor:

  • Medicaid is still limited to a maximum of 100% of the lien OR One Third (1/3) of the gross settlement.
  • Medicaid still prorates within their 1/3 with unpaid medical providers asserting liens.
  • Payment by the lawyer of the 100% or 1/3 of the gross settelement is full and final payement of Medicaid's lien (but medical lien holders paid pro-rata still get are owed their balances pursuant to NCGS 44-49 and 50
Here are the NEW provisions that reflect the Supreme Court's determination that our previous Medicaid statute was in conflict with Federal law:
  • Medicaid recipients can challenge the 1/3 or 100% lien by filing a Petition with a court of competant jurisdiction for "a determination of the portion of the beneficiary's gross recovery that represents compensation for the Medicaid claim."
  • TIMING OF PETITION:  Those petitions must be filed within 30 days of all parties signing a settlement agreement OR court approval of the settlement OR a judgment being issued.
  • The Court will conduct an evidentiary hearing and may consider any factors it deems just and reasonable in determining the allocation of the settlement.
  • The burden of proof is on the petitioner to prove by "clear and convincing evidence" that Medicaid is demanding too large a portion of the settlement.

One other excellent part of the new statute says Medicaid can compromise the liens at any time:  

(a3) Notwithstanding the presumption arising pursuant to subsection (a1) of this section, the medical assistance beneficiary and the Department may reach an agreement on the portion of the recovery that represents compensation for the Medicaid claim. 

In the past, Medicaid took the position they could not negotiate their lien with recipients.  This new portion allows for that negotiation to occur at any time, even before a petition is filed.

Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

Useful list of insurance company claims phone numbers

In NC, accident reports do not include the claims phone number for the liability insurance company. Here is a list of some claims phone numbers. Seriously think about calling a lawyer before you call the insurance company for the driver that hurt you.  Call the Nichols Law Firm.  The liability insurance company is NOT on your side..

 

Company Main claims number:
AIG Insurance Co. Personal: (800) 562-2208 Business: (877) 366-8423

Allied Mutual Insurance Co. (800) 282-9445

Allstate Insurance Co. (800) 386-6126

Amco Insurance Co. (800) 282-9445

American Casualty Co. (800) 437-8854

American Economy Insurance Co. (888) 557-5010

American Employers Insurance Co. In Mass.: (800) 284-6730Outside Mass.: (508) 549-9147

American Family Mutual Insurance Co. (800) 374-1111

American Home Assurance Co. Personal: (800) 562-2208 Business: (877) 366-8423

American International Ins Co. (800) 562-2208

American States Insurance Co. (888) 557-5010

Anthem Casualty Insurance Co. (800) 537-5568

Arbella Mutual Insurance Co. (617) 328-2800

Arkwright Mutual Insurance Co. (781) 890-9300 ext. 2502

Atlanta Casualty Co. (770) 447-8930

Atlantic Mutual Insurance Co. (800) 945-7461

Auto-Owners Insurance Co. (517) 323-1365

Berkshire Mutual Insurance Co. (800) 892-8877

Birmingham Fire Insurance of PA (877) 366-8423

Buckeye Union Insurance Co. (312) 822-5000

California State Auto Assn. Inter-Ins (800) 922-8228

Camden Fire Insurance Assn. (888) 421-2111

CIGNA Property & Casualty Ins Co. (215) 761-1000

Cincinnati Insurance Co. Call your agent

Citizens Insurance Co. of America (800) 628-0250

Colonial Penn Insurance Co. (800) 523-4040

Commerce & Industry Insurance Co. (877) 366-8423

Commerce Insurance Co. (800) 221-1605

Commercial Union Insurance Co. In Mass.: (800) 284-6730 Outside of Mass.: (508) 549-9147

Continental Casualty Co. (312) 822-5000

Continental Insurance Co. (312) 822-5000

Coregis Insurance Co. (312) 849-5000

Country Companies Insurance Group (800) 846-0100

CUMIS Insurance Society Inc (800) 637-2676

Dairyland Insurance Co. (715) 346-9200

Deerbrook Insurance Co. (800) 253-6611

DeSoto Insurance Co. (888) 823-9754

Explorer Insurance Co. In Calif.: (800) 788-8984 Outside Calif.: (858) 350-2400

Farmers Insurance Group of Cos. (888) 516-5656

Fidelity & Deposit Co. of MD (800) 854-6011

Fire Insurance Exchange (323) 964-8911

Firemens Insurance Co. of Newark NJ (312) 822-5000

Foremost Insurance Co. (800) 527-3907

GEICO Indemnity Co. (800) 841-3000

General Accident Ins. Co. of America (CGU) (888) 421-2111

General Casualty of WI (888) 737-8256

General Insurance Co. of America (206) 545-5841

Georgia Farm Bureau Mutual Insurance Co. (912) 474-8411

Government Employees Insurance Co. (800) 841-3000

Grange Mutual Casualty Co. (800) 445-3030

Great American Insurance Co. (800) 724-7722

Great West Casualty Co. (800) 228-8040

Hanover Insurance Co. (508) 855-8000

Harleysville Insurance Cos. (800) 892-8877

Hartford Accident & Indemnity Co. Personal: (800) 243-5860 Business: 1-800-327-3636

Hartford Casualty Insurance Co. Personal: (800) 243-5860 Business: 1-800-327-3636

Hartford Fire Insurance Co. Personal: (800) 243-5860 Business: 1-800-327-3636

Horace Mann Insurance Co. (800) 999-1030

Infinity Southern Insurance Co. (800) 334-1661

Indiana Farm Bureau Insurance (888) 392-5246

Insurance Co. of North America (215) 761-1000

Insurance Co. of the State of PA Personal: (800) 562-2208 Business: (877) 366-8423

Integon National Insurance Co. (800) 468-3466

Interinsurance Exchange Auto Club So. (714) 850-5111

John Deere Insurance Co. (800) 635-3377

Kemper Auto and Home 1-888-216-6066 Kemper Insurance Co.

Kentucky Farm Bureau Mutual Ins. Co. Call your agent Lexington Insurance Co. (877) 366-8423

Liberty Insurance Corp. (800) 526-1547

Liberty Mutual Fire Insurance Co. (800) 526-1547

Liberty Mutual Insurance Co. (800) 526-1547

Lumbermens Mutual Casualty Co. Call your agent Medical Liability Mutual Ins Co. (212) 576-9850

Mercury Insurance Group (800) 489-4001

Metropolitan Property & Casualty Co. (800) 854-6011

Mid-Century Insurance Co. (323) 964-8911

Motors Insurance Corp. (313) 556-4632

National Fire Ins. Co. of Hartford (312) 822-5000

National Indemnity Co (402) 536-3000

National Union Fire Ins.Pittsburgh Personal: (800) 562-2208 Business: (877) 366-8423

Nationwide Mutual Fire Insurance Co. (800) 421-3535

Nationwide Mutual Insurance Co. (800) 421-3535

New Hampshire Insurance Co. (877) 366-8423

New Jersey Manufacturers Ins. Co. (609) 883-1300

New York Casualty Insurance Co. (800) 892-8877

North Carolina Farm Bureau Mutual Ins. (919) 782-1705 ext. 8693

North River Insurance Co. In Mass.: (800) 284-6730 Outside of Mass.: (508) 549-9147

Northern Assurance Co. of America (617) 725-7033

Occidental Fire & Casualty Insurance Co. (800) 525-7486

Ohio Casualty Insurance Co. (513) 867-3000

Oklahoma Farmers Union Mutual Insurance Co. (800) 364-1511

Omni Insurance Co. (800) 727-OMNI (6664)

Pacific Employers Insurance Co. (215) 761-1000

Phoenix Insurance Co. (800) 252-4633

Preferred Risk Mutual Insurance Co. (515) 267-5299

Progressive Casualty Insurance Co. (800) 274-4499

Progressive Northern Insurance Co. (800) 274-4499

Progressive Northwestern Ins. Co. (800) 274-4499

Progressive Specialty Insurance Co. (800) 274-4499

Protection Mutual Insurance Co. (847) 825-4474

Reliance Insurance Co. (215) 761-1000

Republic Underwriters Insurance Co. (214) 559-1270

Rockingham Mutual Insurance Co. (800) 662-5246

Royal Insurance Co. of America (800) 842-1918

Safeco Insurance Co. of America (800) 332-3226

Scottsdale Insurance Co. (480) 948-0505

Selective Insurance Co. of America (973) 948-2900

Sentry Insurance a Mutual Co. (715) 346-9200

Shelter Mutual Insurance Co. (800) SHELTER

Southern United Fire Insurance Co. (800) 851-9476

Standard Fire Insurance Co. (800) 252-4633

State Farm Fire & Casualty Co. (888) 613-3966

State Farm Indemnity Co. (888) 613-3966

State Farm Mutual Automobile Ins. Co. (888) 613-3966

Travelers (860) 277-0111

Trinity Universal Insurance Co. (214) 360-8039

Twentieth Century Insurance Co. (800) 211-7283

United Services Automobile Assn. (800) 531-8222

United States Fire Insurance Co. (800) 690-5520

USAA Casualty Insurance Co. (800) 531-8222

Utica Mutual Insurance Co. (800) 695-1914 Vesta Fire Insurance Corp. (800) 444-3928

Westfield Insurance Co. (800) 443-3311

Windsor Group (800) 852-8220

Worcester Insurance Co. (800) 892-8877

Zenith Insurance Co. (800) 440-5020 

www.NicholsTrialLaw.com 1.800.906.5984

Useful link to Medicare and MSPRC billing and diagnostic codes for auditing conditional payment letters

I found this link with MSPRC's website and thought it might be helpful to some of you.  This link takes you to the PDF lists of all the Medicare diagnosis codes dating back to 2002.   http://www.cms.gov/Medicare/Coding/ICD9ProviderDiagnosticCodes/codes.html

You can download the pdf files and open them in Acrobat and then CTRL F search for the codes that show up on your conditional payment letters from Medicare.  This will help you sort out medical visits that have been "coded" for payment for non-related medical procedures and visits.
This makes it easier to find and eliminate appointments for pre-existing conditions.  You can also scan in a long conditional payment spread sheet, do a conversion to searchable text (OCR) and then use the search feature on that to find the billing codes.
Hope this is helpful to some of you.
Chris Nichols
www.NicholsTrialLaw.com
www.NicholsTrialLaw.com 1.800.906.5984

Can a hospital seek a medical lien if the bills were submitted to workers compensation in NC?

I received a question by email and it is a good one so I'm going to post the question and the answer:

Can a medical provider claim a  lien under NCGS 44-49  if the medical bills have been paid by the workers compensation carrier prior to injured worker pursuing a third part claim against a tortfeasor?

Worker was injured, workers comp. paid his medical bills at the local hospital.  A case was pursued against the negligent third party and we just received a lien notification letter from the hospital.

Can they do this?

My answer:

No.  A workers compensation (WC) medical payment is a "payment in full."  The hospital submitted to WC, WC paid what is the allowable expense and the hospital has to write off the remainder.  They don't get to double bill or bill for the unpaid portion.

I would write the hospital a letter asking them to set out in writing what what the total charges are, what they have been paid in the past, and what they are asking from your client now.  

 

Get that in writing.  
The follow up with a letter to the department that claimed the lien and make sure you copy one of the Medical Dcotors in charge with the following laws:
A medical provider’s reimbursement is limited to the maximum amount approved in the NCIC Medical Fee Schedule, unless the provider has contracted with the insurer for a different amount. If neither the fee schedule nor a contractual fee applies, the maximum reimbursement allowed is the usual, customary, and reasonable charge for the service.
N.C.G.S. §97‐26(c)
N.C.G.S. §97‐90(e) governs this issue and states:
“A health care provider shall not pursue a private claim against an employee for all or part of the costs of medical treatment provided to the employee by the provider unless the employee’s claim or the treatment is finally adjudicated not to be compensable or the employee fails to request a hearing after denial of liability by the employer.”
N.C.G.S. §97‐88.3(c) establishes penalties for medical providers who improperly pursue private claims against employees:
“A health care provider who knowingly charges or otherwise holds an employee financially responsible for the cost of any services provided for a compensable injury under this Article is guilty of a Class 1 misdemeanor.”
That's straight out of the North Carolina Medical Society guide:  http://www.ncmedsoc.org/non_members/project_sustain/workerscomp_faq.pdf
I'm thinking that when faced with criminal liability, the hospital will about face on this one.
And of course, if  the bill was never submitted to or paid by WC, then I think they can claim a lien.  Though if they breached their duty to submit to WC, then they may just be completely out of luck.
Don't forget that WC does have a lien for the medical bills they paid.
Chris Nichols
www.NicholsTrialLaw.com

 

www.NicholsTrialLaw.com 1.800.906.5984

One deposition taken in matter designated for arbitration may waive right to arbitration

In the matter of HCW, et al v HCW et al, the NC Court of Appeals has ruled that the taking of a deposition (utilization of discovery) in a matter where the legal dispute can be arbitrated works as a waiver of the arbitration process.

The HCW opinion

  "As a result, North Carolina’s
waiver-related jurisprudence generally establishes that, in the
event that a party makes material use of discovery procedures
available in ordinary civil litigation that are not available in
arbitration, that party has waived the right to insist that
claims that were addressed during the discovery process be
submitted to arbitration.

The record in this case clearly establishes that, during
the deposition of Plaintiff Drake, Defendants questioned him for
approximately one hour concerning the matters that underlie the
relevant claims. The questioning of Plaintiff Drake concerning
the claims which Defendants now seek to have arbitrated occupied
some 48 pages of the deposition transcript. During the course
of this portion of Plaintiff Drake’s deposition, Defendants
“prompted [Mr. Drake] to admit certain facts regarding the
[claims].” Capps, 184 N.C. App. at 272, 645 S.E.2d at 829.
Although the exact amount of monetary cost that Plaintiff Drake -24-
incurred during the portion of the deposition that addressed the
relevant claims is not spelled out in the record, the Supreme
Court’s description of the showing needed in order to establish
the right to arbitration by engaging in discovery does not
include a cost-related component. Servomation Corp., 316 N.C. at
544, 342 S.E.2d at 854 (stating that a waiver of the right to
have a claim submitted to arbitration can be waived if the party
seeking arbitration “makes use of judicial discovery procedures
not available in arbitration”).
6
Thus, we conclude that the
trial court’s determination that Defendants waived their right
to have the relevant claims submitted to arbitration by engaging
in discovery that would not have been available as a matter of
right during the arbitration process has adequate support in
both the trial court’s findings and the record..."

If you have a matter that has to be filed in court, you should immediately seek a stay of proceedings and an order for arbitration. Further, you should not engage in formal discovery and if your opposing party attempts to do so, you should seek an order of protection.

Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

Trial: Priest joked about abusing 3 boys in week - Yahoo! News

http://news.yahoo.com/trial-priest-joked-abusing-3-boys-week-205857367.html#

Trial: Priest joked about abusing 3 boys in week

Associated PressBy MARYCLAIRE DALE | Associated Press – 17 hrs ago

PHILADELPHIA (AP) — Jurors in a landmark priest-abuse trial heard Monday about a priest-turned-camp prowler and another who allegedly bragged about having sex with three boys in one week.

Also Monday, two jurors were replaced by alternates, but a gag order prevents lawyer from discussing the reasons for the move.

Monsignor William Lynn is on trial for child endangerment and conspiracy. Lynn, 61, is the first Roman Catholic church official in the U.S. charged for his handling of priest-abuse complaints. Prosecutors say he helped the church bury them in secret files, far from the prying eyes of investigators, civil attorneys and concerned Catholics.

In the day's most startling testimony, a detective read internal church memos about a priest who allegedly "joked about how hard it was to have sex with three boys in one week." His accuser also stated that the priest had a "rotation process" of boys spending time sleeping with him.

________________________________________

Interestingly, North Carolina has no Statute of Limitation for criminal cases involving this type of sexual assualt.  Unfortunately, the general rule for civil cases is that the civil statute of limitations runs three years after the last date of sexual abuse.  If the abused person is a minor, the statute of limitations would begin to run when the minor reaches age 18, and expire 3 years later on the minor's birthday.

There is case law in NC for "recovered memory" cases, but the requirements  for this exception to the statute of limitations on sexual abuse require expert testimony and almost a complete lack of awareness of the abuse until the memory was recovered.

 

For more infomation on sexual abuse cases in North Carolina, you can go to http://www.nicholstriallaw.com/PracticeAreas/Sexual-Abuse-Injury-Litigation.asp

Chris Nichols

www.Nicholstriallaw.com

 

www.NicholsTrialLaw.com 1.800.906.5984

Oral argument audio from EMA v Cansler considering whether NC Medicaid liens comply with Ahlborn case

If you are interested in hearing how the 4th Circuit came to the decision in E.M.A. v Cansler, wherein the Court held that NC's Medicaid lien statute was not in compliance with the requirements for subrogation as set out in Ark. Dep't of Human Servs. v. Ahlborn, 547 U.S. 268 (2006) the audio link is posted below.  E.M.A. v Cansler now stands for the proposition that Plaintiffs in NC can ask for a Court to determine Medicaid's share of a personal injury settlement in a post-settlement hearing where the Court determines what percentage of the settlement is compensation for "medical costs incurred" and paid by Medicaid.  

 

The oral argument can be heard here:  http://coop.ca4.uscourts.gov/OAarchive/mp3/10-1865-20111026.mp3#

 

Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984