Be aware that the U.S. Office of Personnel Management, which runs the Federal Employee health insurance program under the Federal Employee Health Benefit Act is trying to pull a fast one. That agency has posted on its website a letter . http://www.opm.gov/carrier/carrier_letters/2012/2012-18.pdf to the effect that federal law preempts state law with regard to subrogation of health benefits paid to or for a federal employee. The letter cites Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006) as saying "it is plausible to construe subrogation and reimbursement contract terms as a condition or limitation on benefits received by a Federal employee, allowing these FEHB Program contract requirements to preempt state law . . . ."

The letter then cites several District and Court of Appeal opinions to support it. However, The 2006 Supreme Court case to which the letter refers holds exactly the opposite. After suggesting it might be plausible to put the interpretation that state subrogation law is preempted, the Court holds that subrogation of FEHBA is not preempted: " 126 S.Ct. 2121, 2136.

This often come up when the issue is whether the Oklahoma "make whole" rule applies. The particular case which called this to my attention was one in which there was a small liability policy ($25,000) and some $17,000 in unpaid medical bills when the FEHBA plan sought to recover all of the liability money for its subrogation claim, leaving the federal employee owing the remaining bills. It's almost as if the agency is saying "We don't care what the Supreme Court rules, we're going to use our own interpretation. Don't let them do that to your client.

Do health care liens attach to medpay benefits? What aboutsubrogation claims by an ERISA plan?

Answer: Hospital liens don't attach to medpay but others do. See:42 O.S. §46 Physician's Lien: contains subsection B that, in addition to lien provided in subA, physician shall have lien "against an insurer." 42 O.S. §43. Hospital Liens, has no such provision and, therefore, arguably does not attach a lien to UM or med-pay.
Ambulance lien 42 O.S. § 49 is worded like § 46. 63 O.S. §5051.1 A2 Payment by OHCFA for one with a claim "against an insurer," creates a debt to DHS.Kratz v. Kratz, 1995 OK 63, 905 P.2d 753: Hospital lien does not attach to UM coverage.Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, 139 P.3d 873: Physician's lien attaches to UM.

As for the ERISA subrogation,Generally they have a claim against the medpay recovery. However, it depends on the language of the ERISA plan. The two contrasting cases on that areProvident Life & Accid. Ins. Co. v. Ridenour, 1992 OK CIV APP 93, 838 P.2d 530 (Health insurance company not entitled to subrogation against UM). Distinguished byReeds v. Honorable Thomas S. Walker/NAICO v. Reeds,2006 OK 43, 157 P.3d 100.

Personally, I am unable to distinguish the policy language in Ridenour from that in Walker but inRidenour, the Court of Civil Appeals held there was no subrogation where the ERISA plan provided subrogation for claims against "third parties." That did not reach subrogation against UM coverage but reached only claims against the tortfeasor. The Supreme Court inWalkerfound a very similar provision providing subrogation against a "third party" applied to the insured's own UM coverage since the UM carrier was a "third party" to the transaction between the ERISA insurance company and the injured insured. It appears to me the Supreme Court just didn't want to reverse Ridenour. I would expect the same rules would apply to medpay coverage.

Must I honor a lien filed several years before my case is settled.Lien statutes seem to say an action must be filed within one year of the lien filing?

Answer: That was so before an amendment to the statute.42 O.S. Sec. 46 used to say that the lien must be enforced by suit within one year of the date of filing. In 1994 Subsection D was amended to substitute for "within one year the date of filing" the language which now appears "Such an action shall be brought within one (1) year after the physician or professional person licensed under Title 59 of the Oklahoma Statutes becomes aware of final judgment, settlement or compromise of the claim asserted or maintained by or on behalf of the injured person. The practice, pleading, and proceedings in the action shall conform to the rules prescribed by the Oklahoma Pleading Code[FN1]to the extent applicable."

So, you cannot safely ignore the old lien.

What’s my remedy when a medical provider asserts a lien on a client's case that is invalid because it is for treatment for an injury unrelated to the actual claim?

Answer: You can recover your attorney fee for an action to cancel or construe the lien if you prevail. See: Luetkemeyer v. Magnusson, 2007 OK CIV APP 45, 162 P.3d 970: Physician liable for patient’s attorney fee in removing lien as improper.

I have a PI case were a chiropractor filed a lien for a relatively small amount, but ended up with a bill for several thousand. Client wants me to pay the lien amount rather than the bill. I’m concerned there may be an ethical problem with my doing that.

Answer: You’re between a rock and a hard spot. The Supreme Court has held the lawyer is ethically responsible when he has constructive notice but not actual notice. Your problem is the reverse: you have actual notice but not constructive notice. My best guess is that the court would ultimately rule that the lien is ineffective to secure the billed amount. I think you would win the lawsuit. But, do you want to take the chance and get in that lawsuit? Or, more pertinently, do you owe your client an ethical duty to take the risk and get in that lawsuit. I think I would contact Travis Pickens, the ethics counsel at the bar and be guided by his advice. I think if you do that, you protect yourself from an ethical problem. However, you will still probably have a lawsuit from the health care provider.