    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 19-0662V
                                        UNPUBLISHED


    SHANNON MCTERNAN,                                        Chief Special Master Corcoran

                         Petitioner,                         Filed: April 27, 2020
    v.
                                                             Special Processing Unit (SPU);
    SECRETARY OF HEALTH AND                                  Compensation Under the Vaccine
    HUMAN SERVICES,                                          Program; Offset; Section 15(g);
                                                             Claim of Subrogation by Private
                        Respondent.                          Health Care Insurance; Section 15(h)


Bruce William Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for
      petitioner.

Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for
      respondent.

RULING ON INABILITY TO CLAIM PRIVATE HEALTH CARE INSURANCE OFFSET
                        IN VACCINE PROGRAM 1

       On April 24, 2020, an attorney at Petitioner’s counsel’s law firm emailed the court
requesting a ruling concerning how Sections 15(g) and (h) of the National Childhood
Vaccine Injury Compensation Program (the “Vaccine Act” or “Program”)2 pertains to the
present case. See Informal Remark, dated Apr. 24, 2020. Petitioner has been contacted
by her health care insurer regarding recoupment of benefits under a right of subrogation
set forth in the insurance policy. She has filed letters dated May 8 and 22, 2019 from
Conduent Payment Integrity Solutions, the authorized subrogation/reimbursement agent
for Petitioner’s health insurance plan from Cigna, which purports to be a self-funded

1
  Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the ruling will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2
 The National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as
amended, 42 U.S.C. §§ 300aa-10 et seq. Hereafter, individual section references will be to 42 U.S.C. §
300aa of the Act.
ERISA plan. Exhibit 12, ECF Nos. 30-31. Thus, Petitioner seeks to clarify whether her
health care insurer is entitled to reimbursement of benefits that it has paid if Petitioner
recovers monies in her Vaccine case.

         Under the Vaccine Program, a petitioner may recover actual and projected
unreimbursable expenses, lost wages, and pain and suffering, and an award of $250,000
if the injury resulted in death. Section 15(a); see also Helman v. Sec’y of Health & Human
Servs., No. 10-813V, 2014 WL 3589564, at *1 (Fed. Cl. Spec. Mstr. June 24, 2014) (citing
Bruesewitz v. Wyeth, LLC, 131 S.Ct. 1068, 1074 (2011)). But such compensation
elements are limited by subsequent sections of the Act. Thus, punitive and exemplary
damages are prohibited, and for unreimbursable expenses and pain and suffering,
compensation may be provided only for the “health, education, or welfare of the person
who suffered the vaccine-related injury.” Section 15(d).

        Additionally, total recoverable compensation for an established vaccine injury is
offset by amounts paid or expected to be paid under an insurance policy and certain State
or Federal programs. Section 15(g).3 Thus, the Vaccine Act always and by its own terms
functions as a secondary payer to a petitioner’s health care insurance.4 Any entitlement
award paid to a petitioner cannot include amounts paid or expected to be paid under his
or her existing health care insurance policy. The Act also prohibits any health insurance
policy from “mak[ing] payment of benefits under the policy secondary to the payment of
compensation under the Program.” Section 15(h).

       In light of the above, it is readily evident that the plain language of the Vaccine Act
does not authorize reimbursement for benefits already paid under Petitioner’s health care
insurance policy. This means that if Petitioner is successful in establishing
entitlement to a Vaccine Act award, her insurer cannot be reimbursed by the
Vaccine Program for its payments for Petitioner’s treatment in connection with the
injury, sickness, accident, or condition which has been alleged. Petitioner shall so
inform any entity that indicates the intent to act in controversion of the Act’s requirements.


3
    As Section 15(g) specifically states:

                   Payment of compensation under the Program shall not be made for any
                   item or service to the extent that payment has been made, or can
                   reasonably be expected to be made, with respect to such item or service
                   (1) under any State compensation program, under an insurance policy, or
                   under any Federal or State health benefits program (other than under title
                   XIX of the Social Security Act (42 U.S.C. 1396 et seq.)), or (2) by an entity
                   which provides health services on a prepaid basis.
4
  I and other special masters have issued similar rulings in other cases. See Gram v. Sec’y of Health &
Human Servs., No. 15-0305V, 2018WL 2015 WL 7166097 (Fed. Cl. Spec. Mstr. Sept. 29, 2015); Dashty v.
Sec’y of Health & Human Servs., No. 15-0966V, 2018 WL 2411049 (Fed. Cl. Spec. Mstr. Mar. 5, 2018);
Kuhl v. Sec’y of Health & Human Servs., No. 16-1716V, 2018 WL 4391002 (Fed. Cl. Spec. Master May 24,
2018); Fennig v. Sec’y of Health & Human Servs., No. 17-2019V, 2018 WL 7247224 (Fed. Cl. Spec. Mstr.
Dec. 17, 2018). Like this case, Fennig involved a self-funded ERISA insurance plan. 2018 WL 7247224, at
*1.

                                                        2
       Any questions about this order or about this case generally may be directed to OSM
staff attorney Stacy Sims at (202) 357-6349 or Stacy_Sims@cfc.uscourts.gov.

IT IS SO ORDERED.

                                  s/Brian H. Corcoran
                                  Brian H. Corcoran
                                  Chief Special Master




                                           3
