Filed: May 24, 2018
Latest Update: May 24, 2018
Summary: UNPUBLISHED RULING RULING ON PRIVATE HEALTH CARE INSURANCE OFFSET 1 NORA BETH DORSEY , Chief Special Master . At a May 23, 2018 telephonic status conference, counsel for the parties discussed the need for a ruling concerning how 15(g) and (h) of the National Childhood Vaccine Injury Compensation Program [the "Vaccine Act" or "Program"] 2 pertains to the present case. Order, ECF No. 34. Petitioner has been contacted by a representative of her health care insurer, Mr. Phillip Churchill
Summary: UNPUBLISHED RULING RULING ON PRIVATE HEALTH CARE INSURANCE OFFSET 1 NORA BETH DORSEY , Chief Special Master . At a May 23, 2018 telephonic status conference, counsel for the parties discussed the need for a ruling concerning how 15(g) and (h) of the National Childhood Vaccine Injury Compensation Program [the "Vaccine Act" or "Program"] 2 pertains to the present case. Order, ECF No. 34. Petitioner has been contacted by a representative of her health care insurer, Mr. Phillip Churchill ..
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UNPUBLISHED RULING
RULING ON PRIVATE HEALTH CARE INSURANCE OFFSET1
NORA BETH DORSEY, Chief Special Master.
At a May 23, 2018 telephonic status conference, counsel for the parties discussed the need for a ruling concerning how §§ 15(g) and (h) of the National Childhood Vaccine Injury Compensation Program [the "Vaccine Act" or "Program"]2 pertains to the present case. Order, ECF No. 34. Petitioner has been contacted by a representative of her health care insurer, Mr. Phillip Churchill Jr., Assistant General Counsel with Blue Cross Blue Shield of Michigan, regarding recoupment of benefits under a right of subrogation set forth in the insurance policy. Thus, petitioner seeks to clarify whether her health care insurer is entitled to reimbursement of benefits that it has paid if petitioner recovers monies in her Vaccine case.
Under the Vaccine Program, a petitioner may recover actual and projected unreimbursable expenses, lost wages, and pain and suffering, and an award of $250,000 if the injury resulted in death. §15(a); see also Helman v. Sec'y of Health & Human Servs., No. 10-813V, 2014 WL 3589564, at *1 (Fed. Cl. Spec. Mstr. June 24 2014) (citing Bruesewitz v. Wyeth, LLC, 131 S.Ct. 1068, 1074 (2011)).
This compensation is then limited by subsequent sections. Punitive and exemplary damages are prohibited, and for unreimbursable expenses and pain and suffering, compensation may be provided only for the "health, education, or welfare of the person who suffered the vaccine-related injury." §15(d).
Additionally, compensation is offset by amounts paid or expected to be paid under an insurance policy and certain State or Federal programs. §15(g).3 Thus, the Vaccine Act is a secondary payer to petitioner's health care insurance. Any award paid to petitioner would not include amounts paid or expected to be paid under his health care insurance policy.
Moreover, the Vaccine Act prohibits any health insurance policy from "mak[ing] payment of benefits under the policy secondary to the payment of compensation under the Program." Therefore, the plain language of the Vaccine Act does not authorize reimbursement of the benefits paid under petitioner's health care insurance policy. §15(h).
The Secretary of Health and Human Services has conceded that E.K. is entitled to an award of damages under the Vaccine Act. Kuhl on Behalf of E.K. v. Sec'y of Health & Human Servs., No. 16-1716V, 2017 WL 7513293 (Fed. Cl. Spec. Mstr. Sept. 19, 2017). I rule that pursuant to the Vaccine Act, petitioner's insurer is prohibited from recouping any payments made for treatment in connection with E.K.'s vaccine injury from petitioner's forthcoming damages award.
IT IS SO ORDERED.
