Look to Debbie Shank for reason why Wal-Mart has amended its health plan

subrogation - n. assuming the legal rights of a person for whom expenses or a debt has been paid.

Subrogation, and the story of former Wal-Mart employee Debbie Shank, broke into the news with a vengeance just a little over one year ago after Wal-Mart Watch brought her story to the attention of the Wall Street Journal. A collision with a semi-trailer truck eight years ago left Debbie Shank permanently brain-damaged and in a wheelchair. Hoping to help cover Debbie’s nursing home costs, her husband Jim sued the trucking company that hit her. The family won a modest settlement, after which Jim received a call from Wal-Mart’s attorneys. Wal-Mart’s health plan, through a little-known clause in its health plan, sued the Shanks for the $470,000 it had spent on her medical care, and a federal judge ruled in Wal-Mart’s favor. And hence, the issue of subrogation and the Shanks became a national story in both print and broadcast media across the country.

The story ends, or at least has settled, on a more positive note. On April 1, 2008, Wal-Mart dropped all pending litigation against the Shank family. Thanks in part to the hundreds of people who wrote in to the company, as well of the contribution of many major news outlets, Debbie’s family will keep the money currently being held in trust for her future care, though how long that will last remains to be seen.

The story has now added another chapter, however. Individuals suffering catastrophic injuries like those that resulted from Debbie’s violent traffic collision will no longer have to worry about the threat of subrogation. Wal-Mart Watch has confirmed that Wal-Mart’s 2009 health care plan exempts the company’s right to subrogate against a covered person completely in cases of: 1) paraplegia or quadriplegia; 2) severe burns; 3) total and permanent physical or mental disability; or 4) death. In all other cases, the plan also limits the right to recover to 50% of a settlement (Including attorney’s fees).

You can read our press release after the jump. At the bottom you’ll find links to Wal-Mart’s 2008 benefits plan, plus the 2009 amendments.

PRESS RELEASE
Wal-Mart’s 2009 Health Care Plan Includes ‘Debbie Shank Exception’ [MarketWatch]

WASHINGTON, Dec 10, 2008 /PRNewswire-USNewswire via COMTEX/—Wal-Mart Watch and Jim Shank attribute the change to public outrage against Wal-Mart’s treatment of Debbie Shank
Wal-Mart Watch claimed a victory for Wal-Mart workers today with Wal-Mart’s addition of a subrogation exception to the company’s 2009 health care plan for cases similar to that of former Missouri Wal-Mart employee Debbie Shank.

Wal-Mart Watch confirmed that Wal-Mart’s 2009 health care plan exempts the company’s right to subrogate against a covered person completely in cases of 1) paraplegia or quadriplegia; 2) severe burns; 3) total and permanent physical or mental disability; or 4) death. In all other cases, the plan also limits the right to recover to 50% (from 100% previously) of a settlement plus attorney’s fees.
Many company health care plans include the legal right to subrogate or reclaim medical expenses paid by a health care plan if the patient wins money in a legal settlement. The right is rarely if ever exercised by companies in tragic cases such as Debbie Shank’s.

The policy change may prevent Wal-Mart from putting another family through the agony it caused the Shanks. Ultimately, the decision to pursue subrogation still remains with Wal-Mart’s health care plan administrative committee, but Wal-Mart may choose to apply the exceptions liberally rather than risk the kind of public relations debacle it incurred by going after Debbie Shank.

“Knowing what Debbie and our family experienced with Wal-Mart’s attempts to take away Debbie’s financial security for her ongoing medical care on top of a very real, life-changing tragedy, I am grateful that the focus on our situation will spare other families the same type of suffering,” said Jim Shank. “I wish it wouldn’t have taken national outrage to push Wal-Mart to do the right thing, but I’m glad that the company listened to everyone who spoke up on our behalf.”

Debbie was covered under the Wal-Mart health care plan in 2000 when she was permanently injured and brain-damaged in a car accident. Three years after the Shanks won a settlement from the trucking company responsible for the accident, Wal-Mart sued them for $470,000 - more than the remaining amount in Debbie’s trust for her long-term health care - to reimburse itself for the money it spent on her health care, as well as interest and the company’s own attorneys’ fees.

After significant public outrage and weeks of negative media, Wal-Mart reversed its decision on April 1, 2008, and allowed Debbie to keep her money. Wal-Mart subsequently sent a letter to Jim Shank, stating its intention to change its subrogation policy as a result of Debbie’s situation.

“We applaud Wal-Mart for making this positive change to its subrogation policy,” said Wal-Mart Watch Executive Director David Nassar. “While we believe Wal-Mart could have done the right thing much sooner, we are very pleased with the end result. Wal-Mart still has a long way to go to improve the quality and affordability of its employee health care plans, but this is a specific step in the right direction and a victory for Wal-Mart workers.”

To review Wal-Mart’s amended 2009 subrogation policy, click here.

The original 2008 subrogation policy can be found here.

Posted by Corey Himrod on Wednesday, December 10, 2008

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