PART 757—AFFIRMATIVE CLAIMS REGULATIONS Authority: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202. Source: 57 FR 5072, Feb. 12, 1992, unless otherwise noted. Subpart A—Property Damage Claims § 757.1 Scope of subpart A. Subpart A describes how to assert, administer, and collect claims for damage to or loss or destruction of Government property through negligence or wrongful acts. § 757.2 Statutory authority. (a) General. (b) Statute of limitations. [72 FR 53427, Sept. 19, 2007] § 757.3 Regulatory authority. The regulations published in 31 CFR Chapter IX control the collection and settlement of affirmative claims. This section supplements the material contained in those regulations. Where this section conflicts with the materials and procedure published in 31 CFR Chapter IX, the latter controls. [57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53427, Sept. 19, 2007] § 757.4 Claims that may be collected. (a) Against responsible third parties for damage to Government property, or the property of non-appropriated fund activities. (b) For money paid or reimbursed by the government for damage to a rental car in accordance with the Joint Federal Travel regulations (volume 1, paragraph U 3415-C and volume 2, paragraph C 2101-2). (c) Other claims. [72 FR 53427, Sept. 19, 2007] § 757.5 Assertion of claims and collection procedures. (a) General. (b) Officials authorized to pursue claims. (c) Dollar limitations. (d) Determining liability. (e) Assertion of a claim. (i) Reference to the statutory right to collect; (ii) A demand for payment or restoration; (iii) A description of damage and estimate of repair; (iv) A description of the incident, including date and place; and (v) The name, phone number, and office address of the claims personnel to contact. (2) See also 31 CFR part 901. (f) Full payment. (g) Installment payments. (h) Damage to nonappropriated-fund instrumentality (NAFI) property. (i) Damage to industrial-commercial property. (j) Replacement in kind or repair. (k) Release. [57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53427, Sept. 19, 2007] § 757.6 Waiver, compromise, and referral of claims. (a) Officials authorized to compromise claims. (b) Claims over $100,000.00. (c) Notification. (d) Litigation reports. [57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53428, Sept. 19, 2007] §§ 757.7-757.10 [Reserved] Subpart B—Medical Care Recovery Act (MCRA) Claims and Claims Asserted Pursuant to 10 U.S.C. 1095 § 757.11 Scope of Subpart B. Subpart B describes the assertion and collection of claims for medical care under the MCRA and 10 U.S.C. 1095. 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 who is legally liable for the injury or disease. Title 10 U.S.C. 1095 provides for the collection from third-party payers for the value of health care services incurred by the Government on behalf of covered beneficiaries. [72 FR 53428, Sept. 19, 2007] § 757.12 Statutory authorities. (a) Medical Care Recovery Act (b) Title 10 U.S.C. 1095 (c) Title 10 U.S.C. 1079a [72 FR 53428, Sept. 19, 2007] § 757.13 Responsibility for MCRA actions. (a) JAG designees. (i) Deputy Assistant Judge Advocate General (Claims and Tort Litigation Division) (Code 15); and the (ii) Commanding Officer, Naval Legal Service Command Europe and Southwest Asia (NLSC EURSWA), Naples, Italy, in its area of geographic responsibility. (2) JAG designee may assert and receive full payment on any MCRA claim. Code 15 may agree to compromise or waive claims for $100,000 or less. NLSC EURSWA may agree to compromise or waive claims for $40,000.00 or less. NLSC EURSWA claims in excess of $40,000.00 may be compromised or waived only with Code 15 approval. See Sec. 757.19 for further discussion of waiver and compromise. (b) Navy Medical Treatment Facility (MTF). (2) The MTF reports all potential MCRA/10 U.S.C. 1095 cases by forwarding a copy of the daily injury log entries and admission records to the cognizant JAG designee within 7 days of treatment for which a third party may be liable. The JAG designee makes the determination of liability. Recovery for the costs of MTF care is based on Diagnostic Related Group rates or a Relative Value Unit. Rates are established by the Office of Management and Budget and/or the DoD, and published annually in the Federal Register. (c) TRICARE Fiscal Intermediary. (d) Department of Justice (DoJ). [72 FR 53428, Sept. 19, 2007] § 757.14 Claims asserted. (a) General. (b) Independent cause of action. (c) Liable parties. (d) Reasonable value of medical care. (1) By using the rate set as described in § 757.13 (b)(2) in bills issued by the MTF; or (2) By the actual amount paid by the Federal Government to non-Federal medical care providers. (e) Alternate theories of recovery. (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. [57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53428, Sept. 19, 2007] § 757.15 Claims not asserted. In some cases, public policy considerations limit the DoN's assertion of claims against apparent third-party tortfeasors or a contract where the Government would be a third party beneficiary. Claims are not asserted against: (a) Federal Government agencies. (b) Injured service members, dependents, and employees of the United States. (c) Employers of merchant seamen. (d) Department of Veterans' Affairs care for service-connected disability. [57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53428, Sept. 19, 2007] § 757.16 Claims asserted only with OJAG approval. (a) Certain Government contractors. (b) U.S. personnel. [72 FR 53429, Sept. 19, 2007] § 757.17 Statute of limitations. (a) Federal. (b) Claims asserted under 10 U.S.C. 1095. [72 FR 53429, Sept. 19, 2007] § 757.18 Asserting the claim. (a) Initial action by the JAG designee. (1) When DoN has reimbursed a non-Federal provider for health care, or when TRICARE has made payment for a Navy health care beneficiary, the JAG designee will assert any resulting claim. (2) When care is provided in a Federal treatment facility, the status of the injured person will determine the agency that will assert a resulting claim. Cost of treatment provided or paid for by an MTF is deposited in that MTF's account, regardless of which service is making the collection. (i) Where DoN members, retirees, or their dependents receive medical treatment from another Federal agency or department, the DoN will assert any claim on behalf of the United States based on information provided by the treating agency or department. (ii) Similarly, where a DoN MTF provides care to personnel of another Federal agency or department, that other agency or department will assert any claim on behalf of the United States. (3) If the claim is 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 or 10 U.S.C. 1095. (b) Investigating the claim. (c) Notice of claim. (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 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; (d) Administering the claim. (2) An effort should be made to coordinate collection of the Federal government's interest with the injured person's action to collect on a claim for damages. (i) Attorneys representing an injured person may be authorized to include the Federal government's claim 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 the 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 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 brings 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 Government's interests are not being represented by the injured person or his/her attorney, and independent collection efforts have failed, the JAG designee will refer the claims to the DoJ for possible suit. (e) Access to DoN records and information. (2) Requests for testimony of any Navy employees will be processed in accordance with DoD Directive 5405.2, 32 CFR part 725, and SECNAVINST 5820.8A. If the injured person, or his or her attorney has signed an agreement to protect the Government's interest and is requesting the testimony of a locally available physician who treated the injured person, however, this request falls within an exception to the regulations. See 32 CFR 725.5(g)(3). In this situation, the injured person or the attorney need only ask the JAG designee for assistance in scheduling the testimony of the treating physician and the JAG designee will coordinate with the physician's command to determine availability. Such testimony is limited to factual issues. The definition of factual issues is slightly different under the regulations than it is in civil litigation. Opinions that are formed prior to, or contemporaneously with, the treatment at issue and are routinely required in the course of the proper performance of professional duties constitute essentially factual matters. For example, the physician will have opined at the time of treatment if further treatment will be necessary. The physician may testify to that as factual, not opinion, testimony. Opinions that are formed after treatment and are not required for continuing treatment, especially those that respond to hypothetical questions, are not factual and are considered to be expert testimony. This expert testimony, regardless of who requests it, will be processed in accordance with 32 CFR part 725, and must be forwarded to OJAG Code 14, General Litigation Division. Requests for expert testimony are rarely granted. [72 FR 53429, Sept. 19, 2007] § 757.19 Waiver and compromise. (a) General. (b) Waiver and compromise. (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 or contract insurer; and (7) Any other factors which objectively indicate fairness requires waiver. [57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53430, Sept. 19, 2007] § 757.20 Receipt and release. The JAG designee will execute and deliver appropriate releases to third parties who have made full or agreed upon compromised payments. A copy of the release will be kept in the claims file. [72 FR 53430, Sept. 19, 2007]