Question: My client's bills relating to a car accident were paid by Tricare. Tricare 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: Tricare asserts recovery rights pursuant to the Federal Medical Cost Recovery Act - 42 U.S.C. §2651-2653 (the “FMCRA”). Additionally, federal regulations also mandate recovery regulations 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 payment for all or part of the same medical treatment for which Tricare provided or paid. 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.
We are not aware of a case, statute or regulation that requires a plaintiff’s attorney to notify Tricare. 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 FMCRA and federal regulations place a duty of cooperation on the plaintiff, as well as a permissible obligation on plaintiffs’ attorneys to assist. See 32 C.F.R. § 199.12 and 32 C.F.R. § 757.18(d). Furthermore, an attorney has an ethical duty to competently represent a client, and therefore, an attorney would seem to have an ethical duty to ensure the client knows about the statutory requirements of cooperation.
If Tricare is not satisfied that its interest is being protected, then Tricare has the power to: 1.) require assignment to the extent of the recovery right; 2.) intervene in plaintiff’s case; or bring its own action. Often, 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’s action (see 32 C.F.R. § 757.18(b), (e), and (f)). Plaintiffs’ attorneys will be asked to sign a protection agreement to A) acknowledge the U.S.A.’s claim, and B) commit to protect the interests of the U.S.A. Tricare will also send the FMCRA Questionnaire for compilation of case facts. 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.
Garretson has previously posted a related response on our blog, and we have included the following link for your benefit. “The bottom line is that the Navy would likely want (claimant) to do its work, and wants his "cooperation" to protect the Navy's interests in the lawsuit (assuming there are third party tortfeasors).” Click here to read the post - Tricare Insured Plaintiff.
Please let us know if we can be of any further assistance. We have resolved many Tricare claims, have contacts in every recovery office and are familiar with the process.
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