New Hampshire Health Plan Reimbursement: Made-Whole and Common Fund

By the FigureMyTax Editorial Team · How we calculate

We did not find a New Hampshire statute that governs a health plan's reimbursement from your settlement. A compendium of subrogation law reports that medical subrogation is allowed by contract, that the common fund rule applies, and that decisions on the made-whole rule point different ways.

What the made-whole rule is

The made-whole doctrine says an insurer that paid your bills cannot be repaid from your recovery until you have been fully compensated for your losses. Some states enact it by statute; others leave it to courts. We found no New Hampshire statute for a health plan.

What a compendium reports

A law-firm compilation of New Hampshire subrogation law reports that an insurer has no equitable right of subrogation without a contract provision, that the common fund doctrine applies, and that the made-whole rule has been applied to health insurance in one decision but is described elsewhere as not applying, with a later decision treating a settlement within policy limits as covering the insured's medical expenses. We did not read the decisions, so treat these as leads and do not assume either outcome.

A worked example

Say a health plan paid $9,000 and you settle for $100,000 with a one-third fee and $3,000 in costs. If the common fund rule applies, the plan bears about 36.3 percent of its claim for fees and costs and recovers about $5,730. If it claims in full, it takes $9,000. The New Hampshire medical lien calculator offers those positions and does not apply a made-whole bar.

Medicaid and hospital liens are different

Medicaid has its own statute (RSA 167:14-a) and hospitals have a statutory lien (448-A:1); neither depends on whether you are made whole. See the Medicare and Medicaid post and how hospital liens work.

What to do

Ask for an itemized claim and the plan document, ask whether the plan is insured or self-funded, and ask it to reduce its claim for your fees and costs. A self-funded employer plan is governed by federal law.

This is general information, not legal advice, and the state comparisons above are illustrative, not an exhaustive survey. Confirm how New Hampshire's rules apply to your specific case with a licensed New Hampshire attorney.