Hulon v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1985V UNPUBLISHED

BOBBY HULON, Chief Special Master Corcoran Petitioner, Filed: May 3, 2022 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Compensation Under the Vaccine HUMAN SERVICES, Program; Offset; Section 15(g); Claim of Subrogation by Medicare; Respondent. Section 15(h)

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Dhairya Divyakant Jani, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON INABILITY TO CLAIM MEDICARE HEALTH CARE INSURANCE OFFSET IN VACCINE PROGRAM 1 The parties in the above-captioned case have settled the claim, and Petitioner awaits a decision adopting their stipulation and awarding compensation. However, Petitioner has learned that Medicare is seeking to attach a lien against any compensation proceeds awarded to him. Accordingly, on April 26, 2022, I held a status conference in the above-captioned case to discuss the propriety of a ruling concerning how Sections 15(g) and (h) of the National Childhood Vaccine Injury Compensation Program (the

“Vaccine Act” or “Program”) 2 pertain to the ability of third parties to attach a lien to a Program compensation judgment.

In 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. Section 15(a); Helman v. Sec’y of Health & Hum. 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)). But such compensation elements are limited by subsequent sections of the Act. Thus, punitive or exemplary damages are prohibited, and awards for unreimbursable expenses and/or pain and suffering may be provided only for the “health, education, or welfare of the person who suffered the vaccine-related injury.” Section 15(d).

In addition, total recoverable compensation for an established vaccine injury is offset by amounts paid or expected to be paid under an insurance policy and certain State or Federal programs. Section 15(g). 3 Thus, the Vaccine Act always and by its own terms functions as a secondary payer to a petitioner’s health care insurance – the “payor of last resort.” 4 Indeed, the Act prohibits any “policy of health insurance” from “mak[ing] payment of benefits under the policy secondary to the payment of compensation under the Program,” and also prohibits an entity that “provides health services on a prepaid basis or provides health benefits” from “mak[ing] the provision of health services or health

2The National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act.

Section 15(g).

Servs., No. 19-1134V, 2021 WL 4708710 (Fed. Cl. Spec. Mstr. Sept. 3, 2021)(also involving Medicare); McTernan v. Sec’y of Health & Hum. Servs., No. 19-0662V, 2019 WL 2962019 (Fed. Cl. Spec. Mstr. April 27, 2020); Gram v. Sec’y of Health & Hum. Servs., No. 15-0305V, 2015 WL 7166097 (Fed. Cl. Spec. Mstr.

Sept. 29, 2015); Dashty v. Sec’y of Health & Hum. Servs., No. 15-0966V, 2018 WL 2411049 (Fed. Cl. Spec.

Mstr. Mar. 5, 2018); Kuhl v. Sec’y of Health & Hum. Servs., No. 16-1716V, 2018 WL 4391002 (Fed. Cl. Spec. Master May 24, 2018); Fennig v. Sec’y of Health & Hum. Servs., No. 17-2019V, 2018 WL 7247224 (Fed. Cl. Spec. Mstr. Dec. 17, 2018). benefits secondary to the payment of compensation under the Program.” Section 15(h) (emphasis added). 5 Because of the above, any entitlement award paid to a petitioner cannot include amounts paid or expected to be paid under his or her existing health care insurance policy. The plain language of the Vaccine Act does not authorize reimbursement for benefits already paid – here, under Petitioner’s Medicare health care insurance policy.

This means Petitioner’s insurer cannot be reimbursed by the Vaccine Program for its payments for Petitioner’s treatment in connection with the injury, sickness, accident, or condition which has been alleged. Petitioner shall so inform any entity that indicates the intent to act contrary to the Act’s requirements.

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

Sections 15(g) and (h) set forth the sole exception – services or benefits provided under Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.), meaning Medicaid treatment. “Medicaid liens” may be asserted against Program awards.