(a) All health benefit plan contracts shall provide that the Federal Employees Health Benefits (FEHB) carrier is entitled to pursue subrogation and reimbursement recoveries, and shall have a policy to pursue such recoveries in accordance with the terms of this section.
(b)(1) Any FEHB carriers' right to pursue and receive subrogation and reimbursement recoveries constitutes a condition of and a limitation on the nature of benefits or benefit payments and on the provision of benefits under the plan's coverage.
(2) Any health benefits plan contract that contains a subrogation or reimbursement clause shall provide that benefits and benefit payments are extended to a covered individual on the condition that the FEHB carrier may pursue and receive subrogation and reimbursement recoveries pursuant to the contract.
(c) Contracts shall provide that the FEHB carriers' rights to pursue and receive subrogation or reimbursement recoveries arise upon the occurrence of the following:
(1) The covered individual has received benefits or benefit payments as a result of an illness or injury; and
(2) The covered individual has accrued a right of action against a third party for causing that illness or injury; or has received a judgment, settlement or other recovery on the basis of that illness or injury; or is entitled to receive compensation or recovery on the basis of the illness or injury, including from insurers of individual (non-group) policies of liability insurance that are issued to and in the name of the enrollee or a covered family member.
(d) A FEHB carrier's exercise of its right to pursue and receive subrogation or reimbursement recoveries does not give rise to a claim within the meaning of 5 CFR 890.101 and is therefore not subject to the disputed claims process set forth at 5 CFR 890.105.
(e) Any subrogation or reimbursement recovery on the part of a FEHB carrier shall be effectuated against the recovery first (before any of the rights of any other parties are effectuated) and is not impacted by how the judgment, settlement, or other recovery is characterized, designated, or apportioned.
(f) Pursuant to a subrogation or reimbursement clause, the FEHB carrier may recover directly from any party that may be liable, or from the covered individual, or from any applicable insurance policy, or a workers' compensation program or insurance policy, all amounts available to or received by or on behalf of the covered individual by judgment, settlement, or other recovery, to the extent of the amount of benefits that have been paid or provided by the carrier.
(g) Any contract must contain a provision incorporating the carrier's subrogation and reimbursement rights as a condition of and a limitation on the nature of benefits or benefit payments and on the provision of benefits under the plan's coverage. The corresponding health benefits plan brochure must contain an explanation of the carrier's subrogation and reimbursement policy.
(h) A carrier's rights and responsibilities pertaining to subrogation and reimbursement under any FEHB contract relate to the nature, provision, and extent of coverage or benefits (including payments with respect to benefits) within the meaning of 5 U.S.C. 8902(m)(1). These rights and responsibilities are therefore effective notwithstanding any state or local law, or any regulation issued thereunder, which relates to health insurance or plans.
[80 FR 29204, May 21, 2015]
Notes of Decisions
Helfrich v. Blue Cross & Blue Shield Assoc, 804 F.3d 1090 (10th Cir. 2015).
· cites it 6× “at 29,204 (codified at 5 C.F.R. § 890.106 (a)). The rule also requires that contracts containing subrogation or reimbursement clauses “provide that benefits and benefit payments are extended to a covered individual on the condition that the FEHB carrier may pursue and receive…”
Kobold v. Aetna Life Ins., 370 P.3d 128 (Ariz. Ct. App. 2016).
· cites it 4× “After the Arizona Supreme Court denied review, the Office of Personnel Management (“OPM”) promulgated new regulations, set forth in 5 C.F.R. § 890.106 , that construe § 8902(m)(l) to include subrogation and reimbursement terms in FEHBA contracts.”
Coventry Health Care of Mo., Inc. v. Nevils, 137 S. Ct. 1190 (2017).
“See 5 C.F.R. § 890.106 (2016). Under those regulations, a carrier's "right to pursue and receive subrogation and reimbursement recoveries constitutes a condition of and a limitation on the nature of benefits or benefit payments and on the provision of benefits under the plan's…”
Levin v. Connecticut Blue Cross, Inc., 487 F. Supp. 385 (N.D. Ill. 1980).
· cites it 10× “Pursuant to 5 C.F.R. § 890.106 , OPM reviewed the Carrier’s decision, and by letter dated December 27, 1976, indicated to plaintiff OPM’s refusal to order the Carrier to pay plaintiff’s claim.”
Teresa Bell v. Blue Cross & Blue Shield of OK, 823 F.3d 1198 (8th Cir. 2016).
“” 5 C.F.R. § 890.106 (h). OPM concluded that its interpretation of the statute “comports with longstanding Federal policy, lowers the cost of benefits, and creates greater uniformity in benefits and benefits administration.”
Jodie Nevils v. Grp. Health Plan, Inc. & ACS Recovery Servs., Inc., 492 S.W.3d 918 (Mo. 2016).
· cites it 2× “5 C.F.R. § 890.106 (h). The United States Supreme Court granted certiorari, vacated this Court’s decision in Nevils, and remanded the case to this Court to determine whether the foregoing rule establishes that FEHBA preempts Missouri’s anti-subrogation law.”
Tepe v. Rocky Mountain Hosp. & Med. Servs., 893 P.2d 1323 (Colo. Ct. App. 1995).
“” 5 C.F.R. § 890.106 (c) (1993). If OPM determines that the denial of benefits was improper, it may require the carrier to pay the requested benefits.”
Coventry Health Care of Mo., Inc. v. Nevils, 137 S. Ct. 1190 (2017).
· cites it 2× “” 5 CFR §890.106 (b)(1). In 2015, OPM published a new rule confirming that a carrier’s subrogation and reimbursement rights and responsibilities “relate to the nature, provision, and extent of coverage or benefits (including payments with respect to benefits) within the meaning…”
Nevils v. Grp. Health Plan, Inc., 524 S.W.3d 502 (Mo. 2017).
“5 C.F.R. § 890.106 (h). Tlie United States Supreme Court granted certiorari, vacated this Court’s opinion in Nevils I, and remanded the case to this Court to consider'whether FEHBA preempts Missouri’s anti-subrogation law in light of the new rule.”
Olson v. United States, 514 F. Supp. 355 (W.D. Ky. 1981).
“” Pursuant to that legislative license OPM adopted a regulation — 5 C.F.R. Section 890.106(a) — which reads: “OPM does not adjudicate individual claims for payment or service under health benefits plans.”
— 5 C.F.R. § 890.106(a) — 2 cases
Olson v. United States, 514 F. Supp. 355 (W.D. Ky. 1981).
“” Pursuant to that legislative license OPM adopted a regulation — 5 C.F.R. Section 890.106(a) — which reads: “OPM does not adjudicate individual claims for payment or service under health benefits plans.”
— 5 C.F.R. § 890.106(b)(1) — 1 case
— 5 C.F.R. § 890.106(h) — 1 case
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