32 C.F.R. Subpart N—Hospital Recovery Claims (42 U.S.C. 2651–2653)
Title 32 - National Defense
This subpart explains how the United States asserts and settles claims for costs of medical care, against third parties under the Federal Medical Care Recovery Act (FMCRA) and various other laws. This paragraph defines terms which are used within this subpart. (a) Base Staff Judge Advocate (SJA). The SJA of the base providing legal services to the Air Force medical facility which furnished initial medical care to the injured party is responsible for processing the hospital recovery claim. If an Air Force facility did not furnish the initial medical care, the SJA of the Air Force base within the claims jurisdiction of the initial treating facility is responsible for processing the claim. (b) Compromise. A mutually binding agreement where payment is made and accepted in an amount less than the full amount of the claim. (c) Injured party. The person who received medical care for injury or disease as a result of the incident on which the claim is based. The injured party may be represented by a guardian, personal representative, estate, or survivor. (d) Medical care. Includes medical and dental treatment, prostheses, and medical appliances the US furnished or reimbursed other sources for providing. (e) Reasonable value of medical care. Either: (1) An amount determined by reference to rates set by the Director of the Office of Management and Budget for the value of necessary medical care in US medical facilities. (2) The actual cost of necessary care from other sources which was reimbursed by the United States. (f) Third party. An individual, partnership, business, corporation (including insurance carriers), which is indebted to the United States for medical care provided to an injured party. (In some cases, a state or foreign government can be the third party.) (g) Waiver. The voluntary relinquishment by the United States of the right to collect for medical care provided to an injured party. (a) Settlement authority: (1) The following individuals have delegated authority to settle, compromise, or waive claims for $40,000 or less and to accept full payment on any claim: (i) The Judge Advocate General. (ii) The Deputy Judge Advocate General. (iii) The Director of Civil Law. (iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff. (2) The SJA of HQ 9AF for CENTCOM, and SJAs of PACAF and USAFE have delegated authority to compromise or waive claims for $30,000 or less and to accept full payment on any claim. (3) SJAs of single base GCMs, the SJAs of GMCs in PACAF and USAFE, and the SJAs of each Air Force base, station, or fixed installation have delegated authority to compromise or waive claims for $15,000 or less and to accept full payment on any claim. (b) Authority to assert a claim. Each settlement authority has authority to assert a claim in any amount for the reasonable value of medical care. (c) Redelegation of authority. A settlement authority may redelegate to a subordinate judge advocate or civilian attorney, in writing, his or her authority to assert, compromsie, or waive claims. (d) Authority to reduce, withdraw, and restore settlement authority. Any superior settlement authority may reduce, withdraw, or restore delegated authority. (e) Settlement negotiations. A settlement authority may settle a claim filed for an amount within the delegated settlement authority. Claims in excess of the delegated authority must be approved by the next higher settlement authority. Unsuccessful negotiations at one level do not bind higher authority. Note: Telephonic approvals, in the discretion of the higher settlement authority, are authorized. (f) Special exceptions. Only the Department of Justice (DOJ) may approve claims involving: (1) Compromise or waiver of a claim for more than $40,000. (2) Settlement previously referred to DOJ. (3) Settlement where a third party files suit against the US or the injured party arising out of the same incident. A claim should be asserted when the Air Force has furnished or will furnish medical care in military health care facilities or when the Air Force is responsible for reimbursement to a private care provider and either of the following conditions are met: (a) Third party liability in tort exists for causing an injury or disease. (b) Local or foreign law permits the United States to recover or the United States is a third party beneficiary under uninsured motorist coverage, medical pay insurance coverage, worker's compensation, no-fault statutes, or other statutes. A claim should only be asserted if the base SJA determines it merits assertion. Claims for $150 or less need not be asserted; they should be asserted only if the base SJA or designee determines the collection will not exceed the cost to collect, the third party offers payment and demands a release from the United States before paying damages to the injured party, or the United States asserts a property damage claim under subpart L arising out of the same incident. (a) The following are considered nonassertable claims and should not be asserted: (1) Claims against any department, agency, or instrumentality of the United States. “Agency or instrumentality” includes any self-insured nonappropriated fund activity whether revenue producing, welfare, or sundry. The term does not include private associations. (2) Claims for care furnished a veteran by the Department of Veterans Affairs (VA) for service connected disability. However, claims may be asserted for the reasonable value of medical care an Air Force member receives prior to his or her discharge and transfer to the VA facility. (3) Claims for care furnished a merchant seaman under 42 U.S.C. 249. A claim against the seaman's employer should not be filed. (b) Claims should not be asserted without HQ USAF/JACC's approval against: (1) Government contractors. In claims in which the United States must reimburse the contractor for a claim according to the terms of the contract, an investigation into the claim is sent to HQ USAF/JACC by the base SJA. The file should contain recommendations regarding assertion and include citations to the specific contract clauses involved. (2) Foreign governments. An investigation is made regarding any claim against foreign governments, their political subdivisions, armed forces members, or civilian employees. The claims files containing the investigation are sent to HQ USAF/JACC along with the base SJA's recommendations regarding assertion. (3) US personnel. Claims are not asserted against members of the uniformed services; employees of the US, its agencies or instrumentalities; or an individual who is a dependent of a service member or employee at the time of assertion unless liability insurance will pay the claim. (4) Manufacturers of products in products liability cases. When asserting the claim, the base SJA will: (a) Assert it against the third parties whose liability is based in tort using an SF 96, Notice of Claim. Mail the original and one copy to each of the third parties and a copy to the third parties' insurers, if known. (b) Assert it against third parties or insurers whose liability is not based in tort using a formal letter written on Air Force stationery. The letter will include the facts and legal basis for liability. Bases for liability could include local foreign law, US status as a third party beneficiary under uninsured or underinsured motorist coverage, workers' compensation laws, and no fault statutes. The specific provision of the injured party's insurance contract should be cited where appropriate. (c) Mail all copies of the SF 96, or claim notice on Air Force letterhead: (1) By certified mail with return receipt requested in all claims in which the amount claimed is $5,000.00 or more or in which there is a substantial likelihood that the final amount claimed will be $5,000.00 or more. (2) By regular or certified mail with return receipt requested at the SJA's discretion in cases in which the final amount claimed is less than $5,000.00, unless there is no response to the initial notice of claim within a reasonable period of time and a second notice of claim is required to be mailed. All second notices of claim and copies will be mailed by certified mail, return receipt requested. (d) Notify the injured parties promptly in writing that the United States will attempt to recover from the third parties the reasonable value of medical care furnished or to be furnished and that they: (1) Should seek advice from a legal assistance officer or civilian counsel and furnish the civilian counsel's name to the claims officer. (2) Must cooperate in the prosecution of all actions of the United States against third parties. (3) Must furnish a complete statement regarding the facts and circumstances surrounding the incident which caused the injury. (4) Must not execute a release or settle any claim which exists as a result of the injury without prior notice to the SJA. (5) Should read the enclosed Privacy Act statement. Only HQ USAF/JACC authorizes referral of a claim to the US Attorney. The base SJA ensures review of all claims not later than 2 years after the date of the incident. These unsettled claims are forwarded, with the base SJA's disposition recommendation, to HQ USAF/JACC. Note: On a case-by-case basis, HQ USAF/JACC will authorize referral of a case to the US Attorney by telephone.
Title 32: National Defense
PART 842—ADMINISTRATIVE CLAIMS
Subpart N—Hospital Recovery Claims (42 U.S.C. 2651–2653)
§ 842.115 Scope of this subpart.
§ 842.116 Definitions.
§ 842.117 Delegations of authority.
§ 842.118 Assertable claims.
§ 842.119 Nonassertable claims.
§ 842.120 Asserting the claim.
§ 842.121 Referring a claim to the US Attorney.
§ 842.122 Statute of limitations.
The United States or the injured party on behalf of the United States must file suit within 3 years after an action accrues. This is usually 3 years after the initial treatment is provided in a federal medical facility or after the initial payment is made by CHAMPUS, whichever is first.
§ 842.123 Recovery rates in government facilities.
The
§ 842.124 Waiver and compromise of United States interest.
Waivers and compromises of government claims can be made. This paragraph lists the basic guidance for each action. (See §842.117(e) for claims involving waiver and compromise of amounts in excess of settlement authorities' delegated amounts.)
(a) Waiver for the convenience of the government can be made when the tort-feasor:
(1) Cannot be located.
(2) Is judgment proof.
(3) Has refused to pay and the case is too weak for litigation.
(b) Waiver can be made when collection causes undue hardhsip to the injured party. Ordinarily, factors such as the following should be considered:
(1) Permanent disability or disfigurement.
(2) Decreased earning power.
(3) Out of pocket losses.
(4) Financial status of injured party.
(5) Pension rights.
(6) Other government benefits to the injured party.
(7) An offer of settlement from a third party which includes virtually all the thirty party's assets, although the amount is considerably less than the calculation of the injured party's damages.
(c) A compromise can be made upon written request from the injured party or the injured party's legal representative when liability is questionable, the injured party received excessive treatment, or the litigation risks dictate, and either of the following occurs:
(1) The injured party accepts less than the jury verdict expectancy. When this occurs, the Air Force should consider settling its claim in a ratio similar to that which the total sttlement bears to the jury verdict expectancy.
(2) The government's claim is almost as large as, or is larger than, the assets available for settlement.
§ 842.125 Reconsideration of a waiver for undue hardship.
A settlement authority may reconsider its disapproval of a waiver or compromise, when either:
(a) The injured party submits new evidence.
(b) Errors exist in claim submission or settlement.
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