Axelrod v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 21-0980V UNPUBLISHED

KIMBERLY AXELROD, Chief Special Master Corcoran

Petitioner, Filed: May 10, 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 Private Respondent. Health Care Insurance; Section

15(h).

LeeAnne Pedrick, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner. Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON INABILITY TO CLAIM PRIVATE HEALTH CARE

INSURANCE OFFSET IN VACCINE PROGRAM 1 On May 9, 2022, Kimberly Axelrod (“Petitioner”) filed a motion for a ruling concerning how Sections 15(g) and (h) of the National Childhood Vaccine Injury Compensation Program (the “Vaccine Act” or “Program”)2 pertains to the present case.

Petitioner has been contacted by Optum, on behalf of her healthcare insurer United Healthcare, 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. Section 15(a); see also 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 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.” Section 15(d).

Additionally, 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. 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 Act also prohibits any health insurance policy from “mak[ing] payment of benefits under the policy secondary to the payment of compensation under the Program.” Section 15(h).

In light of the above, it is readily evident that the plain language of the Vaccine Act does not authorize reimbursement for benefits already paid under Petitioner’s health care insurance policy. This means that if Petitioner is successful in establishing entitlement to a Vaccine Act award, her 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 in controversion of the Act’s requirements.

Any questions about this order or about this case generally may be directed to OSM attorney Kate Burmeister at (202) 357-6370 or [email protected].

IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master