Love v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1134V
ETHEL LOVE, Chief Special Master Corcoran
Petitioner,
v. Filed: September 3, 2021
SECRETARY OF HEALTH AND Compensation Under the Vaccine
HUMAN SERVICES, Program; Offset; Section 15(g);
Claim of Subrogation; Section 15(h);
Respondent. Medicare; Special Processing Unit
(SPU)
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON INABILTY TO CLAIM MEDICARE HEALTHCARE INSURANCE OFFSET
AGAINST VACCINE PROGRAM DAMAGES AWARDS1
On August 5, 2019, Ethel Love filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine
Act”). Petitioner alleged that she suffered left shoulder injuries related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received on
October 14, 2016. Petition at 1; Stipulation, filed August 31, 2021, ¶¶ 2, 4. On August 31,
2021, I entered a decision awarding Petitioner compensation based on the joint stipulation
filed by the parties. (ECF No. 26).
Approximately two weeks prior, on August 19, 2021, Petitioner’s counsel contacted
the Court to advise that the Medicare division of the Centers for Medicare & Medicaid
Services (CMS) has expressed an intent to assert a lien on her damages award in this
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). I intend to post this ruling on the United States Court of Federal Claims'
website. This means the ruling will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or
other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon
review, I agree that the identified material fits within this definition, I will redact such material from public
access.
case. See Informal Remark, dated Aug. 19, 2021. Petitioner therefore requests a “ruling”
concerning how Sections 15(g) and (h) of the National Childhood Vaccine Injury
Compensation Program (the “Vaccine Act”)2 pertains to the present case. In other words,
Petitioner seeks to clarify whether Medicare is entitled to reimbursement of benefits that
it has paid now that Petitioner is receiving compensation 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 & 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)). 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 can
be 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 already 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). Although
the Program has long represented that payments received from Medicaid for health care
needs associated with a vaccine injury should be reimbursed (and hence constitute a lien
against any Vaccine Program award), no other health care compensation or insurance
2
The 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.
3
Section 15(g) states:
Payment of compensation under the Program shall not be made for any
item or service to the extent that payment has been made, or can
reasonably be expected to be made, with respect to such item or service
(1) under any State compensation program, under an insurance policy,
or under any Federal or State health benefits program (other than under
title XIX of the Social Security Act [42 U.S.C. 1396 et seq.]), or (2) by an
entity which provides health services on a prepaid basis.
2
program receives the same protections. See e.g., Helman v. Sec'y of Health & Hum.
Servs., No. 10-813V, 2014 WL 3589564, at *1 (Fed. Cl. June 24, 2014).
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 in this case under Petitioner’s
Medicare health care insurance policy.4 This means that 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 in
controversion of the Act’s requirements.
Any questions regarding this order or about this case generally may be directed
to OSM Staff Attorney, Francina Segbefia, at (202) 357-6358 or
Francina_Segbefia@cfc.uscourts.gov.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4
I and other special masters have issued similar rulings in other cases, with the goal of informing secondary
parties that they are not entitled to receive part of Vaccine Program awards. See Gram v. Sec’y of Health
& Human Servs., No. 15-0305V, 2018WL 2015 WL 7166097 (Fed. Cl. Spec. Mstr. Sept. 29, 2015); Dashty
v. Sec’y of Health & Human Servs., No. 15-0966V, 2018 WL 2411049 (Fed. Cl. Spec. Mstr. Mar. 5, 2018);
Kuhl v. Sec’y of Health & Human Servs., No. 16-1716V, 2018 WL 4391002 (Fed. Cl. Spec. Master May 24,
2018); Fennig v. Sec’y of Health & Human Servs., No. 17-2019V, 2018 WL 7247224 (Fed. Cl. Spec. Mstr.
Dec. 17, 2018). Fennig involved a self-funded ERISA insurance plan. 2018 WL 7247224, at *1.
3