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Court Rules That VA Has Shortchanged Veterans Since 2009 by Denying Reimbursement

Released 4/11/16 | Tags: Court of Appeals for Veterans Claims


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


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.

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 to decide Mr. Staab’s claim under the correct criteria.

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.  

Read the brief in the case
Read the court decision in the case

About the National Veterans Legal Services Program
The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1980. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the federal benefits they have earned through their service to our country. NVSLP offers training for attorneys and other advocates, connects veterans and active duty personnel with pro bono legal help when seeking disability benefits, publishes the nation's definitive guide on veteran benefits, and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org.

Media contact: Ami Neiberger-Miller, 703-887-4877 (for working journalists only), ami@steppingstoneLLC.com


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