[Title 32 CFR B]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[Subchapter E - CLAIMS]
[Part 757 - AFFIRMATIVE CLAIMS REGULATIONS]
[Subpart B - Medical Care Recovery Act (MRCA) Claims]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE52002-07-012002-07-01falseBSubpart BNATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVYCLAIMSAFFIRMATIVE CLAIMS REGULATIONS
           Subpart B--Medical Care Recovery Act (MRCA) Claims



Sec. 757.11  Scope of subpart B.

    Subpart B describes the assertion and collection of claims for 
medical care under the Medical Care Recovery Act (MCRA). 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.



Sec. 757.12  Statutory authority.

    Medical Care Recovery Act, 42 U.S.C. 2651-2653 (1982).



Sec. 757.13  Responsibility for MCRA action.

    (a) JAG designees. (1) Primary responsibility for investigating, 
asserting, and collecting Department of the Navy (DON) MCRA claims and 
properly forwarding MCRA claims to other Federal departments or agencies 
rests with the following officers:
    (i) Commanding officers and officers in charge, Naval Legal Service 
Command (NLSC) activities, in their areas of geographic responsibility;
    (ii) Officer in charge, U.S. Sending State Office, Rome in his area 
of geographic responsibility.
    (2) JAG designees may assert and receive full payment on any MCRA 
claim. They may, however, agree to compromise or waive only claims for 
$40,000.00 or less. Claims in excess of $40,000.00 may be compromised or 
waived only with DOJ approval. Such claims will be forwarded to the 
Judge Advocate General in accordance with Sec. 757.6. See Sec. 757.7 for 
further discussion of waiver and compromise.
    (b) Navy Medical Treatment Facilities (MTF). (1) Naval MTF's are 
responsible

[[Page 447]]

for ensuring potential MCRA claims are brought to the attention of the 
appropriate NLSC activity or U.S. Sending State Office (USSSO).
    (2) The MTF reports all potential MCRA cases by forwarding a copy of 
the daily injury log entries and admissions records to the cognizant 
NLSC activity or USSSO within 7 days of treatment for which a third 
party may be liable. The NLSC activity or USSSO makes the determination 
of liability.
    (i) MTF computes the value of the care it provided on NAVJAG Form 
5890/12. Rates used to compute this value are published annually in the 
Federal Register by the Office of Management and Budget.
    (ii) Block 4 of NAVJAG Form 5890/12 requires a statement from the 
patient describing the circumstances of the injury or disease.
    (iii) An ``interim'' report is prepared for inpatients only. An 
interim report is prepared every 4 months until the patient is released, 
transferred or changed to an outpatient status.
    (iv) A ``final'' report is prepared for all patients when inpatient 
and outpatient treatment is completed or the patient's care is 
transferred to another facility. A narrative summary should accompany 
the final report in all cases involving inpatient care. In addition, the 
back side of NAVJAG Form 5890/12 is completed as part of the final 
report when the value of Federal Government care exceeds $1,000.00.
    (c) The Office of Medical and Dental Affairs (OMA). The office pays 
emergency civilian medical expenses incurred by active duty members. 
This office furnishes MCRA claims information to the NLSC activity or 
USSSO. The address is Bldg. 38H, U.S. Naval Training Center, Great 
Lakes, IL 60088-5200.
    (d) Civilian Health and Medical Program of the Uniformed Services 
(CHAMPUS) contractors. CHAMPUS contractors forward reports of payments 
in injury cases to the appropriate NLSC activity. Responsible JAG 
designees should, however, initiate regular contact with contractors 
within their geographic area to ensure all relevant cases have been 
reported.
    (e) Department of Justice (DOJ). Only the DOJ may authorize 
compromise or waiver of an MCRA claim in excess of $40,000.00; settle an 
MCRA claim which was previously forwarded by the DON to DOJ for action; 
or settle an MCRA claim in which the third party has filed a suit 
against the United States or the injured person as a result of the 
incident which caused the injury.



Sec. 757.14  Claims asserted.

    (a) General. The DON asserts MCRA claims when medical care is 
furnished to Navy and Marine Corps active duty personnel, retirees, or 
their dependents, and third-party tort liability for the injury or 
disease exists. Claims are asserted when the injured party is treated in 
a military MTF or when the DON is responsible for reimbursing a non-
Federal care provider. Claims for medical care furnished are also 
asserted using alternate theories of recovery if the MCRA does not 
apply. See Sec. 757.14(e).
    (b) Independent cause of action. The MCRA creates an independent 
cause of action for the United States. The Government can 
administratively assert and litigate MCRA claims in its own name and for 
its own benefit. Procedural defenses, such as a failure of the injured 
person to properly file and/or serve a complaint on the third party, 
that may prevent the injured person from recovering, do not prevent the 
United States from pursuing its own action to recover the value of 
medical treatment provided to the injured person. The right arises 
directly from the statute; the statutory reference to subrogation 
pertain only to one mode of enforcement. In creating an independent 
right in the Government, the Act prevents a release given by the injured 
person to a third party from affecting the Government's claim.
    (c) Liable parties. MCRA claims may be asserted against individuals, 
corporations, associations and non-Federal Government agencies subject 
to the limitations described in Sec. 757.15.
    (d) Reasonable value of medical care. The reasonable value of 
medical care provided to an injured person is determined:
    (1) By using the rates set by the Office of Management and Budget 
and published in the Federal Register for

[[Page 448]]

care provided in Federal medical care facilities; or
    (2) By the actual amount paid by the Federal Government to non-
Federal medical care providers.
    (e) Alternate Theories of Recovery. Often, recovery under the MCRA 
is not possible because no third-party tort liability exists. For 
example, if a member, retiree, or dependent is driving a vehicle and is 
injured in a single-car accident, there is no tortfeasor. State law, 
including insurance, workers' compensation, and uninsured motorist 
coverage provisions, determines the DON's right to recover in situations 
not covered by the MCRA. If, under the law where the injury occurred, 
the injured party is entitled to compensation for medical care received, 
usually the Federal Government may recover. The two most common 
alternate theories are described below.
    (1) Recovery may be possible under the injured party's automobile 
insurance policy. In most cases, the Federal Government should seek 
recovery as a third-party beneficiary under the medical payments or the 
underinsured/uninsured portion of the injured party's policy. The 
ability of the Federal Government to recover as a third-party 
beneficiary has been upheld in some states, while other states have 
taken the contrary position.
    (2) Recovery may also be possible under State workers' compensation 
laws. Case law in this area is still emerging, but in most 
jurisdictions, the United States stands in the position of a lien 
claimant for services rendered.



Sec. 757.15  Claims not asserted.

    In some cases, the MCRA or public policy considerations limit the 
DON's assertion of claims against apparent third-party tortfeasors. MCRA 
claims are not asserted against:
    (a) Federal Government agencies. Claims are not asserted against any 
department, agency or instrumentality of the United States. ``Agency or 
instrumentality'' includes self-insured, non-appropriated-fund 
activities but does not include private associations.
    (b) Injured servicemembers, dependents and employers of the United 
States. Claims are not asserted directly against a servicemember, the 
dependent of a servicemember, or an employee of the United States who is 
injured as a result of his willful or negligent acts. The United States 
does assert, however, against medical care and treatment insurance 
coverage the member, employee, or dependent might have.
    (c) Employers of merchant seamen. Claims are not asserted against 
the employer of a merchant seaman who receives Federal medical care 
under 42 U.S.C. 249.
    (d) Department of Veterans Affairs care for service-connected 
disability. Claims are not asserted for care provided to a veteran by 
the Department of Veterans Affairs when the care is for a service-
connected disability. The United States will, however, claim for the 
reasonable value of care provided an individual before he is transferred 
to a Department of Veterans Affairs hospital.



Sec. 757.16  Claims asserted only with JAG approval.

    The responsible NLSC activity or USSSO will investigate potential 
MCRA claims against the following third parties and forward a copy of 
their claims file, along with recommendations on assertion, to the Judge 
Advocate General:
    (a) Certain Government contractors. JAG approval is required before 
asserting an MCRA claim against a Federal Government contractor when the 
contract provides that the contractor will be indemnified or held 
harmless by the Federal Government for tort liability.
    (b) Foreign Governments. JAG approval is required before asserting 
MCRA claims against foreign governments, their political subdivisions, 
Armed Forces members, or civilian employees.
    (c) U.S. personnel. JAG approval is required before asserting MCRA 
claims against U.S. servicemembers, their dependents and employees of 
the United States, or their dependents for injury to another person.



Sec. 757.17  Statute of limitations.

    (a) Federal. The United States, or the injured party on behalf of 
the United States, must file suit within 3 years after an MCRA action 
accrues. 28

[[Page 449]]

U.S.C. 2415. Generally this is 3 years from the date of initial Federal 
treatment or Federal Government payment to a private care provider, 
whichever is first.
    (b) State. Some State statutes of limitations may also apply where 
recovery is based on authority such as workers' compensation statutes, 
no-fault insurance statutes, no-fault medical payments, or uninsured 
motorist provisions of insurance contracts.



Sec. 757.18  Asserting the claim.

    (a) Initial action by JAG designee. When advised of a potential MCRA 
claim, the JAG designee will determine the Federal agency or department 
responsible for investigating and asserting the claim.
    (1) When the DON has reimbursed a non-Federal provider for health 
care or when CHAMPUS has made payment for a Navy health care 
beneficiary, the DON will assert any resulting MCRA claim.
    (2) When care is provided in a Federal treatment facility, the 
status of the injured person will determine the agency which will assert 
a resulting MCRA claim.
    (i) Where Navy or Marine Corps members, retirees, or their 
dependents receive medical treatment from another Federal agency or 
department, the DON will usually assert any MCRA claim on behalf of the 
United States based on information provided by the treating agency or 
department.
    (ii) Similarly, where a Navy MTF provides care to personnel of 
another Federal agency or department, that other agency or department 
will usually assert any claim on behalf of the United States.
    (3) If the claim is not one which the DON should assert, the JAG 
designee will forward all available information to the appropriate 
department or agency.
    (4) If the claim is one which the DON should assert, the JAG 
designee will ensure an appropriate investigation into the circumstances 
underlying the claim is initiated and will provide notice to the injured 
party and all third parties who may be liable to the injured person and 
the United States under the MCRA.
    (b) Investigating the claim. While there is no prescribed form or 
content for investigating these claims, the claims file will contain 
sufficient information on which to base valuation, assertion, 
settlement, waiver, and/or compromise decisions. Usually the file will 
contain:
    (1) Identification of each person involved in the incident including 
name, address, occupation, and nature of involvement;
    (2) Police, social service, and other Federal, State and local 
agency reports on the incident;
    (3) Completed copies of NAVJAG Form 5890/12 \3\ or equivalent forms 
from other agencies and departments;
---------------------------------------------------------------------------

    \3\ See footnote 3 to Sec. 757.2.
---------------------------------------------------------------------------

    (4) Inpatient summaries and outpatients records of treatment of the 
involved injury in non-Federal facilities;
    (5) Documents reflecting Federal payment for non-Federal treatment 
of the injured person;
    (6) Calculations of the reasonable value of the Government's MCRA 
claim;
    (7) Itemized repair bills or estimates of repair of damaged Federal 
Government property;
    (8) Where an identified third-party tortfeasor is a uniformed 
servicemember or a U.S. employee, information and findings concerning 
that person's duty or scope of employment status at the time of the 
incident giving rise to the injury;
    (9) Where an identified third-party tortfeasor is a uniformed 
servicemember or a U.S. employee or the dependent of a uniformed service 
member or U.S. employee, information and findings concerning whether 
that individual was grossly negligent or willfully culpable and whether 
that individual had insurance coverage at the time of the incident 
giving rise to the injury;
    (10) Financial information on identified third-party tortfeasors 
including names and addresses of insurance carriers, insurance policy 
numbers, and extent of coverage; and
    (11) A statement whether the injured person or his attorney will 
protect the interests of the United States.

[[Page 450]]

    (c) Claims forwarded to JAG or DOJ. In those cases where the file 
must be forwarded to JAG or DOJ, the file will also include:
    (1) A summary of the case which includes the circumstances of the 
incident which caused the injury, the source, extent and value of 
medical care provided and a brief of the applicable law on the liability 
of the third party;
    (2) Copies of all correspondence; and
    (3) Recommended disposition.
    (d) Request for assistance in conducting investigation. When an 
injury for which the DON may assert an MCRA claim occurs at a place 
where the DON does not have a command, unit, or activity conveniently 
located for conducting an inquiry into the circumstances underlying the 
injury, the NLSC activity or USSSO having responsibility for 
administering any resulting MCRA claim may request assistance from any 
other command, unit, or activity within the DOD. Such assistance may 
take the form of a complete inquiry into the circumstances underlying 
the incident or it may only cover part of the necessary inquiry and fact 
gathering. If a NLSC activity or USSSO receives a similar request from 
another command, unit or activity within the DOD, every effort should be 
made to honor the request. Assistance will normally be provided without 
reimbursement from the requesting service.
    (e) Notice of claim. (1) The JAG designee will assert appropriate 
MCRA claims by mailing, certified mail, return receipt requested, a 
notice of claim (SF 96) to identified third-party tortfeasors and their 
insurers, if known. Many insured tortfeasors fail to notify their 
insurance companies of incidents. This failure may be a breach of the 
cooperation clause in the policy and may be grounds for the insurer to 
refuse to defend the insured or be responsible for any liability. The 
United States, as a claimant, may preclude such an invocation by giving 
the requisite notification itself. The purpose of the insurance clause 
is satisified if the insurer receives actual notice of the incident, 
regardless of the informant. This notice should be mailed as soon as it 
reasonably appears an identified third party may be liable for the 
injuries to the injured person. It is not necessary or desirable to 
delay mailing this notice until the completion of the investigation 
convened to inquire into the circumstances underlying the incident 
causing the injury. The prompt assertion of the claim will ensure that 
the Government is named on the settlement draft. If the United States is 
not so named, and the claim has been asserted, the insurer settles at 
its own risk.
    (2) The JAG designee will also notify the injured person or his 
legal representative of the Government's interest in the value of the 
medical care provided by the United States. This notice will advise 
that:
    (i) The United States may be entitled to recover the reasonable 
value of medical care furnished or paid for by the Federal Government;
    (ii) The injured person is required to cooperate in the efforts of 
the United States to recover the reasonable value of medical care 
furnished or paid for by the Federal Government;
    (iii) The injured person is required to furnish a statement 
regarding the circumstances surrounding the care and treatment;
    (iv) The injured person may seek legal guidance concerning any 
possible claim for personal injury;
    (v) The injured person is required to furnish information concerning 
legal action brought against any individual involved in the incident and 
provide the name of counsel representing the parties to such an action; 
and
    (vi) The injured person should not execute a release or settle a 
claim arising from the incident causing the injury without first 
notifying the JAG designee.
    (f) Administering the claim. (1) After investigating and asserting 
the claim, the JAG designee will maintain contact with all parties, 
their legal representatives, and insurers.
    (2) An effort should be made to coordinate collection of the Federal 
Government's MCRA interest with the injured person's action to collect 
his own claim for damages.
    (i) Attorneys representing an injured person may be authorized to 
include the Federal Government's MCRA claim

[[Page 451]]

as an item of special damages with the injured person's claim or suit.
    (ii) An agreement that the Government's claim will be made a party 
of the injured person's action should be in writing and state that 
counsel fees will not be paid by the Government or computed on the basis 
of the Government's portion of recovery.
    (3) If the injured person is not bringing an action for damages or 
is refusing to include the Federal Government's MCRA interest, the JAG 
designee will pursue independent collection. The United States is 
specifically allowed to intervene or join in any action at law brought 
by or through the injured person against the liable third person or 
bring an original suit in its own name or in the name of the injured 
person. The JAG designee will ensure all parties are aware that the 
United States must be a party to all subsequent collection negotiation.
    (4) When the MCRA interests are not being represented by the injured 
person and independent collection efforts have failed, the JAG designee 
will request JAG to refer the claim to the DOJ for possible suit. In 
such cases, the JAG designee will forward the complete file to JAG in 
accordance with Secs. 757.18 (b) and (c).
    (g) Access to DON records and information. (1) The medical records 
of the injured person will be released to the injured person or his 
legal representative upon request. This release will be without cost 
except in unusual circumstances. These records may not be released to 
anyone else outside the DON except in accordance with the provisions of 
the Privacy Act, 5 U.S.C. 552a. Usually such a release will require 
authorization from the injured individual or legal representative or an 
order from a court of competent jurisdiction. A clerk or attorney signed 
subpoena is not ``an order from a court of competent jurisdiction.''
    (2) In appropriate cases, military health care providers who have 
examined or treated the injured person may be made available by their 
commands to testify regarding the medical care provided to the injured 
person. Requests for such testimony will be processed in accordance with 
DOD Directive 5405.2, 28 CFR part 725, and 32 CFR part 725, except when 
the injured party is asserting the Federal Government's MCRA claim as 
part of his action for damages. In that situation, the injured person or 
legal representative is considered also to be a representative of the 
United States and the foregoing regulations are not applicable. In such 
a case, the JAG designee may, if appropriate, request the command of an 
involved military health care provider to make the provider available 
for testimony on behalf of the injured person.



Sec. 757.19  Waiver and compromise.

    (a) General. A JAG designee may authorize waiver or compromise of 
any MCRA claim under his authority which does not exceed $40,000.00. A 
third party's liability for medical costs to the United States arising 
from a particular incident will be considered as a single claim in 
determining whether the claim is more than $40,000.00 for the purpose of 
waiver and compromise. When the JAG designee considers waiver or 
compromise appropriate in a claim which exceeds $40,000.00, the claim 
file will be forwarded to JAG in accordance with Secs. 757.18 (b) and 
(c).
    (b) Waiver. The JAG designee may waive the Federal Government's MCRA 
interest when a responsible third-party tortfeasor cannot be located, is 
judgment proof, or has refused to pay and litigation is not feasible. 
Waiver is also appropriate when, upon written request by the injured 
person or legal representative, it is determined that collection would 
cause undue hardship to the injured person. In assessing undue hardship, 
the following circumstances of the injured person should be considered:
    (1) Permanent disability or disfigurement;
    (2) Lost earning capacity;
    (3) Out-of-pocket expenses;
    (4) Financial status;
    (5) Disability, pension and similar benefits available;
    (6) Amount of settlement or award from third-party tortfeasor; and
    (7) Any other factors which objectively indicate fairness requires 
waiver.
    (c) Compromise. The JAG designee may, upon written request of the 
injured person or legal representative,

[[Page 452]]

compromise the Federal Government's MCRA interest using the criteria 
listed above.



Sec. 757.20  Receipt and release.

    (a) Payment. The JAG designee may receive payment in part or in full 
for any claim for which he is responsible. Written acknowledgment of 
this receipt will be mailed to the party making payment and a copy of 
the acknowledgement kept in the claim file.
    (b) Release. The JAG designee will execute and deliver a release to 
third parties making full or compromised payment on the Federal 
Government's MCRA interest. A copy of the release will be kept in the 
claims file.