Friday, January 30, 2009


Posted by Sylvius Von Saucken

Do you know of a regulation or code that says once Tricare is paid back on its subrogation/reimbursement right, the insured is entitled to future medical coverage by Tricare for problems that now arise out of the accident?

-Wyoming Attorney

Tricare’s scope of recovery only looks to past medical expenses paid by Tricare on a conditional basis but for which a third party later takes into account as part of settling with an injured service person. Unlike Medicare and its statutory guidance for workers’ compensation cases, Tricare does not yet incorporate a similar future cost of care analysis. This is because the enabling statute does not speak in terms of future care, but rather in terms of reasonable costs of treatment already provided).

The U.S. military’s rights arise under the Medical Care Recovery Act (42 U.S.C. Sections 2651-53). The MCRA states that when the Federal Government provides treatment or pays for treatment of an individual who is injured or suffers a disease, the Government is authorized to recover the reasonable value of that treatment from any third party legally liable for the injury or disease. The statute provides an independent right of recovery, but only for those payments actually made. The statute does not contemplate any recovery for future payments to be made. (32 C.F.R. Section 757.14(a) and (d)).

Finally, because there is a three year statute of limitations under 28 U.S.C. 2415 (measured from the date of initial federal treatment), any future care provided by a military treatment facility would continue to run into enforcement problems (with respect to future recovery issues because the first date of treatment starts the statute running).

Setting aside the statute, its practical application is as follows: Tricare, in its own third party forms (Form DD 2527), speaks of “suspending” benefits until the form is completed and Tricare, as contactor, received additional information. Claims are denied if the form is not completed within 35 days from date of letter (from Tricare). Suspension of benefits is consistent with the statutory meaning. In our opinion, any reading of the statute or Tricare rules to contemplate payment for injury-related care not yet provided (post-settlement) as a military service person’s obligation, is inconsistent with the express terms of the MCRA.

Please let us know if you have any follow up questions.