Written By: Epiq Subject Matter Experts
Question:
TRICARE paid my client's bills relating to a car accident, but has not put me or the client on notice of a lien. Do I have a duty to make an inquiry concerning the existence of a lien?
Answer:
We are not aware of a case, statute, or regulation that requires a plaintiff’s attorney to notify TRICARE of a settlement or judgment. However, TRICARE expects cooperation by the plaintiff military member to include and coordinate the collection of the government’s interest in the plaintiff’s claim. The Federal Medical Cost Recovery Act (FMCRA) and federal regulations place a duty of cooperation on the plaintiff, as well as a permissible obligation on plaintiffs’ attorneys to assist (32 C.F.R. § 199.12 and 32 C.F.R. § 757.18(d)). Further, an attorney has an ethical duty to competently represent a client, and therefore, an attorney would seem to have an ethical duty to make sure that the client knows about the statutory requirements of cooperation.
TRICARE asserts recovery rights pursuant to the FMCRA (42 U.S.C. §2651-2653). Additionally, federal regulations impose recovery rules for each military branch (32 C.F.R.§ 199.12). While TRICARE’s subrogation rights stem from federal law, our experience has been that the determination of the underlying tort liability involves state rules.
The FMCRA provides TRICARE with both a subrogee/intervention right and an independent right of recovery to payments when a third party is responsible for paying for all or part of the same medical treatment that TRICARE provided or paid for. Any amount TRICARE paid for medical care and services provided to a military service member is considered a claim for the U.S.A. against any liable third party for the care/services provided.
If TRICARE is not satisfied that its interest is being protected, then the agency has the power to (a) require assignment to the extent of the recovery right, (b) intervene in the plaintiff’s case, or (c) bring its own action. Often, however, when plaintiffs provide affirmative notice to and cooperate with TRICARE, that action allows plaintiffs and their attorneys to remain in control of the settlement process. Military recovery units are directed to send notice to ensure cooperation, gather case info, and seek written agreement that the U.S.A. will be protected in the injured party’s action (32 C.F.R. § 757.18(b), (e), and (f)). Plaintiffs’ attorneys are asked to sign a protection agreement to acknowledge the U.S.A.’s claim, and commit to protecting the interests of the U.S.A. A refusal to sign the protection agreement will result in TRICARE not releasing claims billing history and, potentially, a forced assignment and/ or intervention in the case.
Epiq has resolved many TRICARE claims, we maintain contacts in every recovery office, and our team includes experts in the military’s recovery processes. Should you need further guidance, please email us by clicking the button below.
