- March 18th, 2014
I have been keeping quiet with my fingers crossed for several months now, knowing that my friend and expert ERISA attorney, Tybe Ann Brett, Esq. had filed an application to serve an Amended Answer and Counterclaim in U.S. Airways v. McCutchen. The Counterclaim alleges, among other things, Breach of Fiduciary Duty by the plan, and statutory violations for Failure to Disclose, after remand from the United States Supreme Court.
Today, nearly one year after the U.S. Supreme Court's unfavorable ruling, I am pleased to report that the United District Court for the Western District of Pennsylvania granted Mr. McCutchen's request, as seen in the Memorandum Decision available for download here.
- December 31st, 2013
It's getting tougher out there.
On December 26, 2013, President Obama signed the Bipartisan Budget Act of 2013. Section 202 of the Act is entitled "Strengthening Medicaid Third-Party Liability." The new law amends portions of the federal Medicaid Act in an attempt to override the application of the allocation theory derived from Arkansas Dept. of Health & Human Srvs. v. Ahlborn, 547 U.S. 268 (2006). There are three main amendments to the statutes which take effect on October 1, 2014.
First, 42 U.S.C. § 1396a(a)(25)(H) has been amended, which now provides that "to the extent that payment has been made under the State plan for medical assistance in any case where a third party has a legal liability to make payment for such assistance * * * the State is considered to have acquired the rights of such individual to any payments by such third party."
- November 13th, 2013
There is some important news out of Albany: yesterday Governor Cuomo signed a bill (S5715A; A7828) amending the New York anti-subrogation law (General Obligations Law § 5-335). The new law, sponsored by NYS Assemblywoman Helene Weinstein (A.7828) and State Senator John Bonacic (S.5715),is aimed to eliminate the holding of the case of Wurtz v. Rawlings Co., LLC, 2013 WL1248631 (E.D.N.Y. 2013), which held that §5-335 was preempted as it applies to insured employee benefit plans under ERISA.The legislative intent from the bill is quite clear:
The instant legislation is intended to make clear the original purpose of sections 5-101 and 5-335 of the general obligations law which is to ensure that insurers will not be able to claim or access any monies paid in settlement of a tort claim whether by way of a lien, a reimbursement claim, subrogation, or other- wise so that the burden of payment for health care services, disability payments, lost wage payments or any other benefits for the victims of torts will be borne by the insurer and not any party to a settlement of such a victim's tort claim.