ERISA Subrogation: Enforcing Recoupment Provisions in ERISA-covered Health and Disability Plans

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American Bar Association, 2000 - Health insurance - 141 pages
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Contents

What Are the Key Elements of an Enforceable Recoupment Provision?
3
WHAT IS THE DIFFERENCE AND WHY DOES IT MATTER?
4
3 ExclusionaryThe Plan Does Not Pay Medical Benefits for Injuries Caused by Third Parties
5
2 The MakeWhole Rule
6
7 Consistent Plan Documents
7
Employee Retirement Income Security Act ERISA Coverage
9
Initiating the Action
13
B IS THERE A CASE OR CONTROVERSY?
14
K STATE LAW MAKEWHOLE RULES
67
Federal Common Law
71
A MAKEWHOLE RULE
72
2 MakeWhole Rule Presumed Not to Apply
73
3 MakeWhole Rule Does Not Govern if Plan Establishes Priority of Payment or Expressly Disclaims MakeWhole Rule
75
4 MakeWhole Rule Disclaimed Only if Addressed Specifically by Name in the Subrogation Provision
77
5 In Every Circuit Except the Eleventh Circuit a Plan Administrators Interpretation that Straightforward Plan Language Disclaims the MakeWhole Ru...
78
B ATTORNEY FEE REDUCTIONS
79

C PARTIES
15
2 Assignees
17
D VENUE
18
E PERSONAL JURISDICTION AND SERVICE OF PROCESS
19
G STATUTORY CLAIMS UNDER 29 USC 1132a3
21
H MANDATORY INJUNCTION UNDER 29 USC 1132a3A
28
I UNJUST ENRICHMENT UNDER FEDERAL COMMON LAW
29
J PRELIMINARY INJUNCTIVE RELIEF
31
K INTERVENTION
32
L ABSTENTION
34
M REMOVAL
37
1 Blackburn and Speciale
39
2 The Complete Preemption Doctrine
41
Preemption
47
B FMC CORP V HOLLIDAY
50
C SELFFUNDED AND INSURED PLANS
53
E COLLATERAL SOURCE RULES
56
F ANTISUBROGATION LAWS
59
G LAWS PROHIBITING THE ASSIGNMENT OF A MINORS CLAIM
61
H LAWS PROHIBITING SUBROGATION CLAIMS AGAINST MINORS
62
I WRONGFUL DEATH STATUTES
64
J COMMON FUND DOCTRINE
66
1 No Attorney Fee Reduction Where Plan Provides for Full Reimbursement and Silent with Respect to Fee Reductions
80
2 Attorney Fee Reduction Where Plan is Silent With Respect to Fees and Does not Unambiguously Provide for Full Reimbursement
82
3 Plan Administrators Determination Can Override the Common Fund Doctrine
83
4 The Amount of Fees Awarded
84
Summary Judgment Practice and Special Substantive Issues
87
B APPLICABLE STANDARD OF REVIEW AND RECOVERY SOURCES
89
C SETTLEMENT ALLOCATIONS
93
D ENFORCING SEPARATE AGREEMENTS
97
Former Adjudication
103
B CLAIM PRECLUSION
105
C THE ELEMENTS OF ISSUE PRECLUSION
106
1 The Plan Fiduciary Must Have Been a Party to the State Court Action or in Privity with Parties to the State Court Action
107
2 Whether It Was Necessary to Determine the Amount of the Plans Reimbursement Amount in the State Court Proceeding
108
Recovering from Lawyers for Covered Persons
109
B FEDERAL COMMON LAW CLAIMS
114
C CLAIMS FOR BREACH OF FIDUCIARY DUTY UNDER ERISA
116
D STATE LAW CLAIMS
117
Bankruptcy Issues
123
Coordination of Benefits
127
INDEX
135
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