Toolkit · Insurance
The Lien Resolution, Subrogation Negotiation, and Set-Aside Toolkit
29 U.S.C. § 1024(b)(4)
- Type
- Toolkit
- Jurisdiction
- National
- Date
- 2025-01-22
- Topic
- Insurance
This toolkit collects the working documents for resolving every claim against a personal injury settlement. It supplies a payer inventory form for intake and a lien ledger for tracking, a plan document request that cites the statutory penalty, and a funding determination worksheet for the self-funded versus insured question. It provides a conditional payment dispute framework, reduction request letters calibrated to each payer type, and an allocation motion outline for Medicaid cases. It includes a net-to-client settlement model, a disbursement authorization, and a benefit preservation decision tree. Each tool carries drafting notes explaining what the language is doing and where the leverage actually sits, followed by authority tables covering the ERISA, Medicare, Medicaid, and federal program frameworks.
The Lien Resolution, Subrogation Negotiation, and Set-Aside Toolkit
Insurance > Subrogation, Reimbursement, and Liens | Published 22 January 2025 - Updated 17 February 2026 | UpLaw - uplaw.us
How to use these tools
Everything here is a working draft, not a form to file unread. Bracketed text needs replacing, and every jurisdiction has local requirements — particularly for hospital lien perfection, allocation practice, and court approval of minor and incapacitated-person settlements — that these tools do not capture.
The tools are ordered the way the work happens: inventory, classification, document acquisition, audit, negotiation, allocation, modeling, disbursement.
Tool 1 — Client payer inventory form
[FIRM LETTERHEAD]
MEDICAL PAYMENT SOURCES — CLIENT STATEMENT
Client: [NAME] · Date of incident: [DATE] · File: [NUMBER]
Please answer every question. If you are unsure, write "unsure" rather than leaving it blank. We use this to make sure nothing surprises you later.
1. Health coverage. Do you have health insurance? ☐ Yes ☐ No If yes, through: ☐ Your employer ☐ Spouse's employer ☐ Marketplace/individual ☐ Parent's plan ☐ Other: ______ Insurer name: ______ Member ID: ______ (Please attach photographs of the front and back of every card.)
2. Government programs. Are you enrolled in any of these? (Check all that apply.) ☐ Medicare Part A/B ☐ Medicare Advantage (Part C) ☐ Medicare Part D ☐ Medicaid ☐ Medicaid managed care plan ☐ TRICARE ☐ VA health care ☐ Federal employee health plan ☐ Indian Health Service ☐ None
3. Other coverage. ☐ Auto medical payments coverage ☐ Personal injury protection ☐ Workers' compensation claim ☐ Short-term disability ☐ Long-term disability ☐ Health sharing ministry
4. Provider arrangements. Has any doctor, chiropractor, imaging center, or surgery center agreed to wait for payment until your case resolves? ☐ Yes ☐ No If yes, list: ______ Did you sign anything about being paid from your case? ☐ Yes ☐ No
5. Benefits. Do you receive any of these? ☐ Medicaid ☐ Supplemental Security Income (SSI) ☐ Social Security Disability (SSDI) ☐ Housing assistance ☐ SNAP ☐ Energy assistance ☐ None
6. Bills and collections. Have you received any medical bills or collection notices about this incident? ☐ Yes ☐ No (Please bring them all, including ones you think are wrong.)
7. Anything else you have been told about repayment: ______
Signature: ______ Date: ______
Drafting notes. Question 2 lists the programs individually because clients describing coverage in their own words routinely say "Medicare" for a Medicare Advantage plan and "the state" for a Medicaid MCO — and those are separate claimants with separate recovery rights. Question 5 exists solely to trigger benefit preservation planning, which must occur before funds arrive. The instruction to write "unsure" rather than leave blanks is deliberate: a blank is ambiguous, an "unsure" is a task.
Tool 2 — Lien ledger
| Payer | Type | Claimed | Verified date | Audited figure | Reduction argument | Current | Status | Next action / date |
|---|---|---|---|---|---|---|---|---|
| [Plan name] | ERISA self-funded | $[ ] | [ ] | $[ ] | Common fund (plan silent on fees) | $[ ] | Negotiating | Send request / [date] |
| Medicare | MSP | $[ ] | [ ] | $[ ] | Unrelated charges disputed | $[ ] | Dispute pending | Follow up / [date] |
| [State] Medicaid | Anti-lien | $[ ] | [ ] | $[ ] | Allocation — medical portion only | $[ ] | Awaiting order | Motion filed / [date] |
| [Hospital] | Statutory lien | $[ ] | [ ] | $[ ] | Perfection defect; charity care | $[ ] | Disputed | Pull filing / [date] |
| [WC carrier] | Comp lien + credit | $[ ] | [ ] | $[ ] | Fee reduction; credit waiver | $[ ] | Negotiating | Call adjuster / [date] |
Drafting notes. The "audited figure" column is the point of the whole ledger. The claimed amount is what someone asserts; the audited figure is what survives comparison to the injury list. Keeping them in separate columns preserves the record of how much of the reduction came from arithmetic rather than grace — which matters when explaining the result to a client and when a payer later revives a withdrawn charge. The "next action / date" column is what keeps the ledger from becoming a static list nobody updates.
Tool 3 — Plan document request
[FIRM LETTERHEAD] — Send certified mail, return receipt requested
[DATE]
Plan Administrator [PLAN NAME] [ADDRESS]
Re: Request for plan documents — [CLIENT NAME], Participant/Beneficiary ID [NUMBER]
Dear Plan Administrator:
This firm represents [CLIENT], a participant in or beneficiary of the above plan. Enclosed is a signed authorization.
Pursuant to 29 U.S.C. § 1024(b)(4), please furnish copies of the following:
- The plan document constituting the plan established and maintained pursuant to 29 U.S.C. § 1102, including all amendments in effect on [DATE OF INCIDENT];
- The summary plan description then in effect, and any summary of material modifications;
- The most recent annual report (Form 5500) with all schedules and attachments;
- Any trust agreement, contract of insurance, stop-loss policy, or other instrument under which the plan is established or operated;
- Any administrative services agreement with a third-party administrator or recovery vendor; and
- Any document delegating authority to assert or compromise a reimbursement or subrogation claim.
Please also state in writing whether the plan is self-funded or fully insured for the benefits at issue, and identify the entity bearing the risk of loss.
Section 1024(b)(4) requires a response within thirty days. Failure to comply may subject the administrator to the penalty provided in 29 U.S.C. § 1132(c), which runs on a daily basis in the court's discretion.
Sincerely, [COUNSEL]
Drafting notes. Item 4 is the one that matters most and is most often omitted from form requests: a stop-loss policy is strong evidence of self-funding, and an insurance contract is conclusive evidence of the opposite. Item 6 is worth including because recovery vendors sometimes assert claims without documented authority. The explicit citation to the § 1132(c) penalty is not decoration — requests that reference it are answered at a materially higher rate, and the citation preserves the record if a penalty claim later becomes worth making.
Tool 4 — Funding determination worksheet
| Evidence | Found? | Points to | Weight |
|---|---|---|---|
| Plan document recital of funding | ☐ | ______ | Conclusive if clear |
| Group insurance contract in effect | ☐ | Insured | Conclusive |
| Stop-loss policy | ☐ | Self-funded | Strong |
| Form 5500 Schedule A (insurance) | ☐ | Insured | Strong |
| Form 5500 funding/benefit codes | ☐ | ______ | Strong |
| SPD funding statement | ☐ | ______ | Moderate |
| Administrator's written answer | ☐ | ______ | Moderate |
| Vendor's assertion | ☐ | ______ | None — verify independently |
Conclusion: ☐ Self-funded ☐ Insured ☐ Mixed/uncertain — [explain]
If insured: applicable state law limiting subrogation or reimbursement: ______ Authority: FMC Corp. v. Holliday; 29 U.S.C. § 1144; Kentucky Association of Health Plans, Inc. v. Miller.
Drafting notes. The "weight" column exists because this determination is regularly made on the flimsiest available evidence. A vendor's letter carries no weight at all; it is an adverse party's characterization of a contested legal question. A mixed result — an insured plan with a self-funded component, or a plan that changed funding mid-year — is common enough to deserve its own box, and the relevant date is the date of service, not the date of the demand.
Tool 5 — Conditional payment dispute
[FIRM LETTERHEAD]
Re: Dispute of conditional payment claims — Beneficiary [NAME], HICN/MBI [REDACTED], Case ID [NUMBER]
This letter disputes the following claims listed in the conditional payment letter dated [DATE] as unrelated to the incident of [DATE].
The incident produced the following injuries, as documented in the emergency department record of [DATE] and the treating records identified below: [LIST].
Disputed claims:
Line Date of service Provider Diagnosis Amount Basis for dispute [ ] [ ] [ ] [ ] $[ ] Pre-existing condition treated since [DATE] — see enclosed records [ ] [ ] [ ] [ ] $[ ] Unrelated condition; no causal connection to incident [ ] [ ] [ ] [ ] $[ ] Routine care unrelated to incident; see provider letter enclosed Total disputed: $[AMOUNT]. Undisputed and related: $[AMOUNT].
Enclosed in support: [prior treatment records establishing the pre-existing condition]; [provider letter confirming the visit was unrelated]; [emergency department record establishing the injury list].
Please issue a corrected conditional payment summary reflecting the removal of the disputed claims. Governing authority: 42 U.S.C. § 1395y(b) and 42 C.F.R. Part 411.
Drafting notes. Leading with the injury list, before the table, does real work: it establishes the comparison set against which every disputed line is measured. Stating the undisputed total alongside the disputed total signals that the audit was genuine rather than a blanket objection, and blanket objections are handled far less favorably than itemized ones. Enclose the supporting records with the letter rather than offering to provide them; a dispute that requires the reviewer to request documents will sit.
Tool 6 — Reduction request to an ERISA plan
[FIRM LETTERHEAD]
Re: [CLIENT] — Request for resolution of reimbursement claim
[VENDOR/PLAN CONTACT]:
This letter responds to your claim of $[AMOUNT] and requests resolution at $[PROPOSED].
1. The audited amount is $[AMOUNT], not $[CLAIMED]. The enclosed table identifies $[AMOUNT] in charges unrelated to the incident, with supporting records. [Detail.]
2. The plan is [self-funded / fully insured]. [If insured:] The plan is fully insured, as reflected in [Form 5500 Schedule A / the group policy], and [STATE]'s [made-whole / anti-subrogation] law therefore applies as a law regulating insurance saved from preemption under 29 U.S.C. § 1144. See FMC Corp. v. Holliday; Kentucky Association of Health Plans, Inc. v. Miller.
3. The plan is silent on the costs of recovery. Section [ ] addresses reimbursement but does not address attorney's fees or costs. Under US Airways, Inc. v. McCutchen, the common fund doctrine supplies the gap-filler where the plan does not speak, and the plan bears a proportionate share of the costs of the recovery it benefits from. Applying [PERCENT], that is $[AMOUNT].
4. The recovery is limited. The full value of this claim is $[AMOUNT], supported by [basis]. Recovery was limited to $[AMOUNT] by [policy limits / comparative fault / causation / collectibility], as documented in the enclosed [declaration page / analysis]. A proportionate reduction reflecting that constraint yields $[AMOUNT].
5. Client circumstances. [Where applicable: ongoing medical needs, inability to work, dependents, means-tested benefits.]
Enclosed: audited ledger with supporting records; [Form 5500 / policy]; declarations page; liability analysis; [financial circumstances].
We propose resolution at $[PROPOSED], with payment by firm trust account check within [ ] days of a written agreement. Please confirm in writing.
Drafting notes. The order is deliberate: arithmetic first, then legal limits, then equity. A payer reading paragraph 1 learns that the file has been audited, which changes the posture of everything that follows. Paragraph 3 is the highest-yield paragraph in most cases and the most frequently omitted — quote the plan's actual reimbursement section and show the silence rather than asserting it. Paragraph 5 is real but is not a substitute for the first four; a request that leads with hardship and has no arithmetic behind it is treated as a request for charity.
Tool 7 — Medicaid allocation motion outline
[CAPTION]
MOTION FOR APPROVAL OF SETTLEMENT ALLOCATION
I. Relief requested. Plaintiff moves for an order allocating the $[AMOUNT] settlement among damage categories and determining the portion attributable to medical expenses for purposes of the [STATE] Medicaid agency's third-party recovery claim.
II. Background. [Incident; injuries; treatment; Medicaid payments of $[AMOUNT]; settlement.]
III. Legal standard. Federal law requires states to seek recovery from liable third parties, 42 U.S.C. § 1396a(a)(25), with assignment under 42 U.S.C. § 1396k and regulations at 42 C.F.R. Part 433. The anti-lien provision of 42 U.S.C. § 1396p limits recovery to the portion of a settlement attributable to medical expenses. Arkansas Department of Health and Human Services v. Ahlborn. A State may not impose an irrebuttable allocation presumption. Wos v. E.M.A.. Recovery may reach amounts allocated to future as well as past medical expenses. Gallardo v. Marstiller.
IV. Full value of the claim. [Declaration establishing value by category: past medicals $[ ]; future medicals $[ ]; past lost earnings $[ ]; future earning capacity $[ ]; pain and suffering $[ ]; total $[ ].]
V. The constraint on recovery. [Policy limits of $[ ], evidenced by the declarations page; comparative fault of [ ]%; causation limitations; collectibility.] The settlement therefore represents [ ]% of full value.
VI. Proposed allocation. Applying [ ]% consistently across all categories: medical $[ ]; earnings $[ ]; non-economic $[ ].
VII. Notice. The agency was served on [DATE] and [responded / did not respond].
VIII. Conclusion. [Requested order.]
Drafting notes. Section V carries the motion. An allocation supported by a declarations page showing a hard policy limit is nearly unassailable; an allocation supported by counsel's assertion that the case was "difficult" is worth little. Section VI's consistency requirement matters more than the percentage chosen — an allocation that discounts medical damages by seventy percent while discounting pain and suffering by ten percent invites exactly the scrutiny you are trying to avoid. Serve the agency and say so; an unnoticed allocation order is worth substantially less.
Tool 8 — Hospital lien challenge
[FIRM LETTERHEAD]
Re: Asserted lien of [HOSPITAL] — [CLIENT], date of service [DATE]
We have reviewed the lien asserted in the amount of $[AMOUNT] and identify the following:
1. Perfection. [STATE] requires filing with [OFFICIAL] within [PERIOD] and service on [PARTIES]. Our review of the [COUNTY] records reflects [no filing / a filing on [DATE], beyond the statutory period / a filing in the wrong county / a filing omitting [required content]]. We have located no proof of service on [PARTY]. The lien is therefore unperfected.
2. Available coverage. The patient was covered by [INSURER], policy [NUMBER], which was disclosed at registration. [STATE] law [requires the provider to bill available coverage before asserting a lien / limits the lien where coverage was available]. The enclosed registration record reflects the disclosure.
3. Amount. The lien asserts chargemaster rates of $[AMOUNT] for services for which the negotiated rate would have been approximately $[AMOUNT]. [STATE] caps the lien at [ ]. The reasonable value of the services is $[AMOUNT].
4. Financial assistance. The patient's household income at the time of service was $[AMOUNT], which is [PERCENT] of the federal poverty level and within the eligibility range of the hospital's own financial assistance policy. The record reflects no screening for eligibility. We request that the account be submitted for financial assistance review.
We propose resolution at $[AMOUNT]. Please respond in writing within [ ] days.
Drafting notes. Point 4 is the one hospitals answer fastest, because unscreened charity-care-eligible patients implicate obligations the hospital would rather resolve than discuss. Point 1 requires actually pulling the filing — do not assert a perfection defect you have not verified, because a hospital that produces a valid filing in response has just taken over the negotiation.
Tool 9 — Net-to-client settlement model
SETTLEMENT SUMMARY — [CLIENT], File [NUMBER], prepared [DATE]
Amount Gross settlement $[ ] Attorney's fee ([ ]%) ($[ ]) Costs — filing and service ($[ ]) Costs — records and imaging ($[ ]) Costs — experts ($[ ]) Costs — deposition transcripts ($[ ]) Costs — other [itemize] ($[ ]) Subtotal after fees and costs $[ ] [Health plan] — resolved ($[ ]) Medicare — estimated, final demand pending ($[ ]) [State] Medicaid — resolved by allocation order ($[ ]) [Hospital] — resolved ($[ ]) [WC carrier] — resolved ($[ ]) Future medical set-aside — funded ($[ ]) Reserved in trust pending [item] ($[ ]) NET TO CLIENT $[ ] Items still uncertain: [Medicare's final demand is expected within [ ] days and is estimated at $[ ] to $[ ]; the reserved amount will be released to you or paid depending on that outcome.]
Client acknowledgment: I have reviewed this summary, I understand each deduction, and I understand which amounts remain estimated.
Signature: ______ Date: ______
Drafting notes. Itemizing costs rather than showing a single line prevents the most common fee dispute. Marking the Medicare figure as an estimate — and giving a range — is the difference between a client who waits patiently and a client who believes their lawyer is holding their money. Present this before an offer is accepted, not at disbursement; a client who has seen the arithmetic in advance rarely disputes it afterward.
Tool 10 — Benefit preservation decision tree
☐ Does the client receive Medicaid, SSI, or another means-tested benefit? → No: proceed to disbursement. → Yes: continue.
☐ Is the net recovery small enough to fall within the applicable resource limit after spend-down? → Possibly: consider a documented spend-down on exempt items within the applicable period. → No: continue.
☐ Is the client under 65 and disabled? → Yes: a first-party special needs trust under 42 U.S.C. § 1396p(d)(4)(A) is available, with a Medicaid payback provision. → No or uncertain: a pooled trust under (d)(4)(C) may be available; confirm the program's age rules in this State.
☐ Is the amount modest and the client eligible for an ABLE account? → Consider ABLE, alone or alongside a trust, subject to contribution limits.
☐ Would periodic payments serve better than a lump sum? → Consider a structured settlement, coordinated with the trust decision.
☐ Involve benefits counsel where the amount, the client's condition, or the interaction of programs warrants it.
⚠️ Every branch of this tree must be worked before the settlement is funded. After funds reach the client, the options narrow to bad ones.
Authority tables
ERISA framework
| Authority | What it supplies |
|---|---|
| 29 U.S.C. § 1002 | Definitions; whether an arrangement is an ERISA plan at all |
| 29 U.S.C. § 1024 | Document disclosure on written request |
| 29 U.S.C. § 1102 | Written plan instrument requirement |
| 29 U.S.C. § 1104 | Fiduciary duties |
| 29 U.S.C. § 1132 | Civil enforcement; equitable relief; disclosure penalty |
| 29 U.S.C. § 1144 | Preemption, savings clause, deemer clause |
| 29 C.F.R. Part 2520 | Reporting and disclosure mechanics |
| 29 C.F.R. Part 2560 | Claims procedure regulation |
ERISA case law
| Case | Holding used in practice |
|---|---|
| Great-West v. Knudson | No § 1132(a)(3) claim where relief is legal, not equitable |
| Sereboff v. Mid Atlantic | Equitable lien by agreement over identified funds is enforceable |
| Montanile v. Nat'l Elevator | No recovery from general assets after the identified fund is dissipated |
| US Airways v. McCutchen | Plan terms govern; common fund fills a plan's silence on fees |
| FMC Corp. v. Holliday | State insurance law reaches insured plans, not self-funded ones |
| Kentucky Ass'n of Health Plans v. Miller | Test for a law regulating insurance |
| Aetna Health v. Davila | Complete preemption of duplicative state claims |
| Pilot Life v. Dedeaux | State bad-faith claims preempted |
| Rush Prudential HMO v. Moran | State independent review saved as insurance regulation |
| Firestone v. Bruch | Deferential review where the plan grants discretion |
| Metropolitan Life v. Glenn | Structural conflict as a factor in review |
| Conkright v. Frommert | A single honest mistake does not forfeit deference |
Medicare and Medicaid
| Authority | What it supplies |
|---|---|
| 42 U.S.C. § 1395y | Medicare Secondary Payer; conditional payments; recovery rights |
| 42 C.F.R. Part 411 | MSP implementation, including procurement cost reduction |
| 42 C.F.R. Part 405 | Appeals and administrative procedure |
| 42 U.S.C. § 1396a | State plan third-party liability requirements |
| 42 U.S.C. § 1396k | Assignment of rights |
| 42 U.S.C. § 1396p | Anti-lien provision; special needs trust exceptions |
| 42 C.F.R. Part 433 | Third-party liability regulations |
| Ahlborn | Recovery limited to the medical portion |
| Wos v. E.M.A. | No irrebuttable allocation presumption |
| Gallardo v. Marstiller | Future medicals reachable |
Federal programs
| Authority | Program |
|---|---|
| 42 U.S.C. § 2651, § 2652, § 2653 | Federal Medical Care Recovery Act |
| 10 U.S.C. § 1095 | TRICARE / uniformed services facilities |
| 38 U.S.C. § 1729 | Veterans Affairs recovery |
| 5 U.S.C. § 8902, 5 C.F.R. Part 890, Nevils | FEHBA and its preemptive effect |
Using the toolkit end to end
At intake: Tool 1 and Tool 2. In the first sixty days: Tools 3 and 4, plus the perfection review that feeds Tool 8. As records arrive: the audit that feeds Tool 5 and the reduction letters. Before any offer is accepted: Tool 9 and Tool 10. At settlement: Tools 6, 7, and 8 as applicable. At disbursement: Tool 9 signed, with every resolution in writing.
The sequence matters more than the drafting. A perfectly worded reduction request sent after settlement is worth less than a rough one sent with an audited ledger attached six months earlier — because by then the payer has a settlement figure and no reason to move, and the client has an expectation that will now be disappointed.
Related Documents
- Somebody Wants the Settlement Back: How Subrogation and Reimbursement Actually Work
- Subrogation, Reimbursement, and Liens: A Comprehensive Guide to ERISA Plans, Medicare, Medicaid, and the Made-Whole Doctrine
- Identifying, Verifying, and Reducing Every Lien on a Settlement: A Practical Checklist
- Employee Benefits and ERISA: A Comprehensive Guide to Plans, Claims, Appeals, and Fiduciary Duties
- The Employee Benefits and ERISA Claim Toolkit
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- Health Coverage Denials and Appeals: A Comprehensive Guide to ERISA Plans, Marketplace Coverage, and Medicare
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