My old Marine recently received emergency treatment (LINK) at a non-VA hospital.  He is enrolled in Medicare and VA health care. We want to know who is legally obligated to pay what portion of the bills when they start rolling in but there is significant bewilderment on this issue. 

Richard W. Staab (AF-52-56, Korea) and his attorneys (George, Berkshire, and Stichman) from the National Veterans Legal Services Program (NVLSP LINK) took this issue to the United States Court of Appeals for Veterans Claims (CAVC).  On 4/8/16, the court found that some improper VA regulations have been applied to the Emergency Care Fairness Act for years;  they were, in fact, “…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Title: services provided at non-VA medical facilities  StaabRW_14-957 pdf.

Please note that I have no legal or medical training whatsoever.  I am merely sharing a few of my notes, the notes of a puzzled layperson.

Page 2:

•  Mr. Staab had emergency open heart surgery at a private hospital.  A stroke rendered him unable to communicate with the VA (St. Cloud).  Nor was his family made aware of any need to seek treatment pre-approval from the VA.  His uncovered costs were about $48,000 after Medicare.

Page 3:

• Mr. Staab “…sought reimbursement for the portion of medical expenses not covered by Medicare,” but was told to go away since he had partial coverage.
• Section 1725 was amended to its present form (12/09), to “allow the VA to reimburse veterans for treatment in a non-VA facility if they have a third-party insurer that would pay a portion of the emergency care.”

Page 4

• Because the Secretary made a rule disallowing reimbursement if veterans had any health coverage, “…the Court agrees with the appellant’s contention that the Board’s application of 38 U.S.C. § 1725 frustrates the intent of Congress to reimburse veterans who “…are not wholly covered by a health-plan contract or other third-party recourse.”
• Medicare is a “third-party” insurer.
• The statute establishes that VA reimbursement is warranted when coverage by a third-party is less than total.  But VA does not have to pay co-payments and similar cost-sharing amounts as per contract.

Page 6

• Re: 2009 amendment to section 1725 “…Congress clearly intended that “…VA [be] responsible for the cost of the emergency treatment which exceeds the amount payable or paid by the third-party insurer.”
• “Secretary’s regulation became wholly inconsistent with the statute, and the Secretary declined to remedy this inconsistency. Congress intended that veterans be reimbursed for the portion of their emergency medical costs that is not covered by a third-party insurer and for which they are otherwise personally liable, and because the regulation does not execute the language of the statute or the intent of Congress, it is invalid and will be set aside by the Court.”

Page 7

• “The Board’s December 6, 2013, decision is VACATED; the determination that the appellant’s partial Medicare coverage is a bar to eligibility under 38 U.S.C. § 1725 is REVERSED; and the matter of reimbursement for the appellant’s claimed emergency medical care costs is REMANDED for readjudication. Further, 38 C.F.R. § 17.1002(f) is held invalid and SET ASIDE.”

If a vet has Original Medicare Part A, or Part A and Part B, and no expensive Medigap policy, uncovered expenses could be as high as 20%.  Similarly, cheaper Medicare Advantage plans will also result in large bills after an emergency, although they have an annual OOP cap.

In this article (LINK), According to Court of Appeals, Veterans Affairs improperly rejected vets’ emergency medical reimbursements, veterans like Mr. Nolsheim of Arizona (LINK) will be able to appeal past denials (showing CUE) when the regulations are corrected.

Really can’t transfer now. PD Image: Open clip art

Many questions remain.  Does the VA still have to act as secondary payer if a vet declines transfer to a VHA? After all, numerous hardships could exist. Geographical.  VHA inpatient fees based on ridiculous income/asset rules may be prohibitive. Should the 72-hour notification rule still play a role in emergencies now? What about service-connection/non-service connection factors?

This wise decision by judges Lance, Pietsch, and Greenberg, offers financial safety net for some veterans, their families, and regional acute care community hospitals.  It advances the cause of quality health care close to veterans’ residences and the co-ordination of care between the private and VA sector. It exposed the regulations in question to be intentional errors.  True disrespect; perhaps even true hate.

Other resources:

Article: Court rules for veterans to receive medical payments (LINK).

Cornell  LII–38 U.S. Code § 1725 – Reimbursement for emergency treatment.  Read the amendments.  (LINK)

CAVC homepage (LINK)–at this time, fewer than a dozen hits have been recorded on the webpage.

NVLSP Brief for Appellant  Vet. App. No. 14-0957  (LINK to pdf)