COURT RULES THAT VA HAS BEEN SHORTCHANGING VETERANS SINCE 2009 BY REFUSING TO
REIMBURSE THEM FOR EMERGENCY MEDICAL EXPENSES NOT COVERED BY INSURANCE
U.S. Court of Appeals for Veterans Claims
Agrees with National Veterans Legal Services Program Argument That VA Failed to Revise Its
Reimbursement Regulations to Comply with 2009 Congressional Mandate
FOR IMMEDIATE RELEASE – April 11, 2016
WASHINGTON – On Friday, a unanimous three-judge panel of the U.S. Court of Appeals for Veterans
Claims struck down a Department of Veterans Affairs (VA) regulation that VA had been relying upon
since 2009 to deny reimbursement requests from veterans who incurred emergency medical care costs
outside the VA healthcare system. The Court’s decision rebuked the VA, emphasizing that VA’s
reimbursement regulation became “wholly inconsistent” with the governing statute when Congress
amended it in 2009, but thereafter the VA unlawfully “declined to remedy this inconsistency.”
The case, Richard W. Staab v. Robert A. McDonald, was brought by the National Veterans Legal Services
Program (NVLSP) on behalf of an Air Force veteran who had a heart attack in 2010 and was rushed to a
non-VA hospital, where he underwent open heart surgery and incurred approximately $48,000 in
emergency medical expenses. Medicare covered a portion of this medical bill, and the veteran sought
VA reimbursement for the portion of the medical expenses not covered by Medicare.
“This is a major win for veterans, and their families, ” said Bart Stichman, joint executive director of
NVLSP and one of the attorneys in the case. “Often veterans have to seek emergency medical care
outside the VA healthcare system, and for years the VA has refused to reimburse these veterans for any
of the expenses incurred simply because secondary insurance covered a portion of the medical bill. This
practice has violated federal law since at least 2009. The court’s ruling means the VA will have to
amend the unlawful regulations it should have amended in 2009 and do right by these veterans. It’s not
just a win for one veteran. Veterans who have pending claims for reimbursement will benefit. Plus,
veterans whose reimbursement requests were turned down years ago may now be able to get paid by
claiming that the previous denial contained “clear and unmistakable error.”
For many years, the VA denied reimbursement claims for emergency medical care for veterans who had
partial or secondary insurance, even though VA was required by federal statute to pay these claims. In
2009, Congress passed the Emergency Care Fairness Act to confirm the congressional intent to require
the VA Secretary to step in as a “secondary payer” where other health care insurers, such as Medicare,
cover only a portion of the cost of a veteran’s emergency treatment.
Even after Congress clarified its intent in 2009, the VA refused to change its regulation to make it
consistent with what Congress said. VA continued to deny requests for reimbursement from veterans
for emergency medical expenses, if they had other insurance that covered a portion of the medical bill.
Oddly, the VA did pay emergency medical expense claims for veterans who had no insurance.
Plaintiff Richard W. Staab is an Air Force veteran who served honorably from November 1952 to
November 1956. He received the National Defense Service Medal, the Korean Service Medal, the United
Nations Service Medal, and the Good Conduct Medal. His case is typical of many of the denied claims.
In December 2010, Staab suffered a heart attack that was followed by a stroke. He received
cardiovascular treatment, open heart surgery, and rehabilitative care from December 27, 2010, through
December 31, 2011. He incurred expenses of $48,000 which were not covered by Medicare.
Staab’s request for reimbursement of $48,000 was denied by the VA Medical Center in St. Cloud, Minn.
because he had partial insurance coverage through Medicare. The veteran filed a Notice of
Disagreement in May 2012. He said that he was incapacitated due to his heart attack and stroke and was
unable to secure pre-authorization for non-VA treatment, and neither he nor his family were advised to
seek pre-approval.
His case then went through a variety of appeals and made it to the Court of Appeals for Veterans Claims.
Friday’s court win remanded Staab’s case back to the Board of Veterans Appeals, which was essentially
told by the court to authorize payment for the $48,000 for his emergency medical expenses.
The judges at the Court of Appeals for Veterans Claims also ruled the VA’s regulation, which had been
used for years to deny veterans reimbursement, is invalid, saying in its opinion, “Further, 38 C.F.R. §
17.1002(f) is held invalid and SET ASIDE.”
“The court overturned and set aside the VA’s own regulation. This means that the Department of
Veterans Affairs will be forced to amend its regulations and re-train its staff on the rules, so other
veterans who needed emergency medical care outside the VA system are not denied reimbursement,
simply because they have partial secondary insurance,” said Stichman. “This is a big victory for veterans
and their families who have not received the reimbursement that they are legally entitled to for
emergency medical expenses.”
For veterans who filed reimbursement claims in the past for emergency medical care outside the VA
system and were denied because they had partial secondary insurance, the ruling does not require the
VA to go back to reopen past reimbursement denials. Stichman believes that the veteran would have to
take action to file a new claim and argue that the past denial was based on clear and unmistakable error.
Stichman believes that cases currently pending before the VA will directly benefit from the Court’s
decision.
FULL COURT DECISION is available at:
SOURCE: https://assets.documentcloud.org/documents/2800137/Staab-Veterans.pdf