NVLSP Seeks to Compel VA to Decide Claims of Over 67,000 Veterans relating to Reimbursement for Emergency Medical Expenses They Paid Between 2016 and 2019
Veterans Say that VA Has Unreasonably Delayed in Deciding Claims Pending for Over 3 ½ Years
FOR IMMEDIATE RELEASE: May 16, 2023
ARLINGTON, VA – Today, the National Veterans Legal Services Program (NVLSP) filed a motion in the U.S. Court of Appeals for Veterans Claims (CAVC) requesting that the Court compel the U.S. Department of Veterans Affairs (VA) to decide the long-pending claims for reimbursement of certain emergency medical expenses paid by 67,000 veterans. The VA was ordered to readjudicate these claims as a result of a class action filed in 2018 but VA never completed them. The motion filed today is the most recent effort in an epic legal battle trying to compel the VA to fulfill its lawful obligation to reimburse veterans with private health insurance for any coinsurance they had to pay for emergency expenses incurred at non-VA facilities. NVLSP and pro bono counsel at Sidley Austin LLP serve as class counsel in the 2018 case.
In the filing, NVLSP seeks a judicial remedy for veterans for what it says is VA’s unreasonable delay in acting on pending claims for two groups of veterans whom the Veterans Court certified as class members in 2019 in Wolfe v. Wilkie. Although the U.S. Court of Appeals for the Federal Circuit last year reversed the CAVC’s decision in Wolfe, it also upheld the CAVC’s ruling that “eligible veterans have a ‘clear and indisputable’ right to relief with respect to coinsurance” payments incurred by the veterans. A subsequent lawsuit, Kimmel v. Secretary of the Department of Veterans Affairs, forced VA to change its regulation to comply with the court’s ruling in Wolfe.
Nevertheless, VA has still not decided the claims of approximately 67,000 Wolfe class members, even though VA sent letters to each of them in 2020 stating that their claims would be readjudicated and that they did not need to take any action. NVLSP’s filing seeks to amend the 2018 class action petition to add six veterans as representatives of two classes of veterans for whom VA has either failed to issue a decision or failed to adequately assist claimants to obtain the documents necessary to substantiate their claims.
“The VA’s continued failure to timely reimburse veterans for emergency expenses at non-VA facilities is a gross miscarriage of justice for veterans and their families, many of whom have been experiencing both health and financial setbacks as a result of the VA’s unreasonable delay in adjudicating their claims,” said NVLSP Co-Founder and Special Counsel Bart Stichman. “The 67,000 veterans whose reimbursement claims have been pending now for many years are likely to be owed millions of dollars in aggregate to reimburse them for the emergency medical expenses they were forced to pay between 2016 and 2019.”
The six petitioners seeking to amend the 2018 class action petition have all waited over three and a half years for VA to decide their claims. For example, Petitioner Douglas Redwood is a veteran of the U.S. Army who received emergency care at a non-VA facility from February 15-16, 2018. He had private insurance which did not cover all his expenses for his emergency care. As a result, to date he has paid for $4,357.78 to health care providers.
In 2020, VA sent Mr. Redwood a letter informing him that the VA “will redecide your claim(s) and will issue a new decision. There is no need for you to take any action at this point.” Yet in the three years following this letter, Mr. Redwood has received no decision, payment or communications from the VA regarding reimbursement.
Mr. Redwood is joined by Mr. Terrance Fowler, a veteran of the U.S. Marine Corps, Mr. John Jelen, a veteran of the U.S. Coast Guard, and Messrs. James LePant, Kenneth Schmidt, Mr. Steven Butler, veterans of the U.S. Army.
Veterans who may be affected by this lawsuit and who have questions can contact NVLSP by emailing email@example.com.
Today’s motion follows the ruling on October 25, 2022 by the U.S. Court of Appeals for the Federal Circuit that invalidated the VA’s regulation that prohibits VA from reimbursing veterans with private health insurance for out-of-pocket coinsurance expenses that the veteran was required to pay to the insurance company for their emergency medical care at non-VA facilities (marking the third time that a court had invalidated this VA regulation). The Court held that VA is required to reimburse veterans for coinsurance for which the veteran is responsible under their private insurance policies. The Court ordered the VA to engage in expedited rulemaking and issue a new rule by February 22, 2023. The Court also ordered VA to immediately process pending individual claims and make reimbursement payments to veterans for coinsurance amounts not covered by the veteran’s other health insurance.
In 2016, in NVLSP’s Staab lawsuit, the CAVC struck down VA’s regulation prohibiting reimbursement of veterans for any non-VA emergency medical expenses not covered by their private health care policy. For nearly two years after NVLSP’s victory in the Staab case, the VA put a freeze on deciding hundreds of thousands of pending emergency care reimbursement claims from veterans. Ultimately, in January 2018, the VA issued a regulation to replace the one invalidated in Staab. But the replacement regulation created a virtually identical obstacle to reimbursement by forbidding the VA from reimbursing a veteran “for any copayment, deductible, coinsurance or similar payment” incurred during emergency treatment at non-VA hospitals.
The class action lawsuit filed by NVLSP at the CAVC in October 2018 on behalf of Ms. Amanda Wolfe (Wolfe v. Wilkie) claimed that the 2018 regulation still violated the applicable statute. Although the statute allowed the VA to deny reimbursement for a copayment or “a similar payment,” the VA’s 2018 regulation added deductibles and co-insurance to the list of non-reimbursable expenses.
On Sept. 9, 2019, the CAVC ruled that the VA’s 2018 reimbursement regulation violated the Emergency Care Fairness Act of 2010 (ECFA) that requires VA to reimburse veterans for certain emergency medical expenses they incur at non-VA facilities that are not covered by the veteran’s private insurance. The CAVC certified the case as a class action and ordered the VA to remedy its unlawful regulation by reimbursing nearly 75,000 veterans for all of their past out-of-pocket emergency medical expenses not covered by the veteran’s private insurance other than copayments.
For more details on NVLSP’s case history on the issue of emergency reimbursement, go to https://www.nvlsp.org/what-we-do/class-actions/emergency-medical-care-reimbursements/.
Background Information on the Kimmel and Wolfe Lawsuits
10/27/2022 - Federal Court Invalidates Regulation Prohibiting VA From Reimbursing Veterans For Certain Emergency Medical Expenses
01/24/2020 - Veterans Court Rejects VA’s Motion to Postpone Reimbursing Veterans for Emergency Medical Expenses
09/10/2019 - Federal Court Strikes Down VA Regulation Denying Veterans Reimbursement of Emergency Medical Expense
04/01/2019 - In Response to NVLSP’s Class Action Lawsuit, VA Admits It Misled Tens of Thousands of Veterans
1/02/2019 - NVLSP Files Class Action Lawsuit Accusing VA of Disseminating False Information To Veterans
10/30/18 - The 8-Year Battle Continues: NVLSP Again Sues VA Over Continued Refusal To Comply With 2010 Statute
Background Information on the Staab Decision
01/17/2018 – VA Finalizes Rule Requiring Payment for Non-VA Emergency Claims Under NVLSP Court Victory in Staab
11/29/2017 – Video: Staab v. Shulkin – A Pivotal Case for Veterans
06/16/2017 – NVLSP Wins $2 Billion in Medical Care Benefits for Hundreds of Thousands of Veterans, Applauds VA Secretary’s Decision to Voluntarily Withdraw VA Appeal in Staab v. Shulkin
04/11/2016 – Court Rules That VA Has Shortchanged Veterans Since 2009 By Refusing to Reimburse Them for Emergency Medical Expenses Not Covered by Insurance
The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law. NVLSP’s success in these lawsuits has resulted in more than $5.4 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP 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.
For NVLSP: Patty Briotta, office 202-621-5698 or email: firstname.lastname@example.org