VA ER care: Staab vs Shulkin. April 8, 2016 is the important date

The Secretary now has an inkling of what it feels like to have a bucket of  excrément  thrown at him by the VA.  I’ve read the VAOIG’s completely one-sided overblown gossipy report (LINK), and his lawyers worthy rebuttal.  Nevertheless, his Chief of Staff has resigned.  Will the result be greater empathy and identification with veterans who have endured the same VA treatment or will he walk?

Perhaps this event is karmic payback for the new emergency reimbursement rules enacted by Sec. Shulkin in response to the Staab lawsuit.   

Shulkin stand-in for this post…

A few dates….

“In December 2009, section 1725 was amended to its present form, 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.” H.R. REP. 111-55, at 3.1″ StaabRW_14-957

The Emergency Care Fairness Act (ECFA) was passed by Congress in 2010.  For the next 6 +/- years, the VA misinterpreted its intent by refusing to be secondary payer if a vet had another insurance program, such as Medicare.

According to Tom Philpott, “… pending claims for non-VA emergency care were filed as far as back as 2010 and were kept alive by appeal.” (LINK)

Enter Mr. Staab and his team at the National Veterans Legal Services Program (NVLSP) who  fought the false interpretation by appealing to the CAVC.  Their original brief to CAVC (LINK) Vet.App. No. 14-0957 is dated  on 8/10/15

Stars and Stripes writes, “from Feb. 1, 2010, the effective date of the law that expanded VA payment obligations, to April 8, 2016, the date of Staab appellate decision affirming that intent — can’t be re-filed or reimbursed.” (see Philpott)

The Secretary appealed, but a year later, dropped VA’s objections.

By September 29, 2017, VA was holding almost 822,000 unpaid ER claims–trashing vets’ credit scores no doubt.

The Interim final rule was published in 1/9/18, the effective date.

Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Rules and Regulations

(LINK) To clarify the applicability of this
regulation change, judicial decisions
invalidating a statute or regulation, or
VA’s interpretation of a statute or
regulation, cannot affect prior final VA
decisions. See, Jordan v. Nicholson, 401
F.3d 1296 (Fed. Cir. 2005); Disabled
American Veterans v. Gober, 234 F.3d
682, 697–98 (Fed. Cir. 2000). Therefore,
VA will not retroactively pay benefits
for claims filed under § 17.1002(f) that
were finally denied before April 8, 2016,
the date of the Staab decision. In other
words, VA can only apply the new
§ 17.1002(f) to claims pending on or
after April 8, 2016. 

So April 8, 2016 is the magic date and going forward if you have a ER medical bill that needs to be paid.  And it looks as if community hospitals are out of luck for patients who can’t meet that time frame.  I don’t believe that this is immutable based on the CAVC decision but perhaps there will be no collective will to bring the date back to 2010 so that Mr. Staab, other veterans, their representatives, and community hospitals can be compensated properly.

The community hospitals should sue.

If you see any errors in this post, please let me know because there are many complicated issues involved.  The VA has a special hotline to call:

“A dedicated hotline is available at 1-877-466-7124 to speak to customer service representatives specifically about this issue, Monday through Friday, between the hours of 8:00 a.m. to 5:00 p.m. (EST). “

Previous articles about Staab on Asknod:

6/27/17 (LINK)

11/20/16  (LINK)




This entry was posted in All about Veterans, Call David, CAVC/COVA Decision, Complaints Department, Food for thought, Future Veterans, General Messages, Guest authors, Important CAVC/COVA Ruling, non-va care, OIG Entertainment, Uncategorized, VA Attorneys, VA Health Care, vA news and tagged , , . Bookmark the permalink.

2 Responses to VA ER care: Staab vs Shulkin. April 8, 2016 is the important date

  1. Excellent and extremely TIMELY! Error however in your fourth sentence; Will the result will (possible dupenstein?). Appreciate this posting; truly.

    • Kiedove says:

      Thanks for the correction. I’m awful at proofing my own work, and can’t spell worth a damn either!
      I am going to attempt to comment soon on this ruling–on the regulations website–very briefly–for the first time. I don’t like seeing vets and community hospitals getting scammed due to this regulation so that the VA can not meet their true obligations as secondary payers. Hospitals have bills to pay too. They can’t be expected to write-off five years of invoices; vets shouldn’t have to face collection letters hospitals. The language in the original ER Fairness Act is very very clear.

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