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NVLSP Win: Federal Court Invalidates Reg Prohibiting VA Reimbursing Vets Certain Emergency Expenses

Released 10/27/22 | Tags: Class Actions, Veteran's Benefits

Federal Court Invalidates Regulation Prohibiting VA From Reimbursing Veterans  For Certain Emergency Medical  Expenses at Non-VA Facilities Not Covered By Veteran’s Health Insurance

- VA Directed to Process Reimbursement Claims and Pay Eligible Expenses -


WASHINGTON- On October 25, 2022, the U.S. Court of Appeals for the Federal Circuit invalidated a Department of Veterans Affairs (VA ) regulation that prohibits VA from reimbursing veterans with health insurance for certain out-of-pocket expenses for emergency medical care at non-VA facilities.  The Court held that VA is required to reimburse veterans for coinsurance payments for which the veteran would be responsible under their private insurance policies for emergency care.

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 health insurance.

“The Court’s ruling today is a huge victory for veterans and their families. It finally puts to rest any ambiguity regarding reimbursement of coinsurance expenses for emergency care at non-VA facilities,” said National Veterans Legal Services Program (NVLSP) Co-Founder and Special Counsel Bart Stichman. “We greatly appreciate the Court directing the VA to process claims during the rulemaking process.  Veterans have waited long enough and endured great financial hardships waiting to be reimbursed for these expenses.” 

In April 2022, NVLSP, with the assistance of pro bono counsel Sidley Austin LLP, filed a petition on behalf of Joshua Kimmel and Amanda Wolfe challenging VA’s regulation that prohibits reimbursement for emergency medical care expenses at non-VA facilities, the same VA rule that was at issue in Wolfe v. Wilkie. The petition argued that prohibiting reimbursement of coinsurance was unlawful and inconsistent with the statute that authorizes reimbursement.

“Based on prior VA estimates regarding compliance with Wolfe v. Wilkie, this ruling will require VA to pay hundreds of thousands of dollars per year to veterans who file reimbursement claims for emergency medical care reimbursements,” said Stichman.

The Federal Circuit’s decision marks the third time a court has invalidated a VA regulation prohibiting reimbursement of a veteran’s liability to non-VA emergency health care providers for coinsurance payments not covered by insurance.  In NVLSP’s Staab lawsuit, the U.S. Court of Appeals for Veterans Claims (CAVC) acted in 2016 to strike 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 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, and began to work through some of the backlog of reimbursement claims. 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 replacement regulation violated the same statute the Court relied upon in Staab.  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 the 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.

On June 12, 2020, VA appealed the CAVC decision to the U.S. Court of Appeals for the Federal Circuit.  On March 17, 2022, the Federal Circuit Court agreed that the VA rule was unlawful insofar as it allowed VA to deny reimbursement for coinsurance, but held that VA was within its rights to deny reimbursement for deductibles.  Nonetheless, the Federal Circuit reversed the CAVC’s Wolfe decision because Ms. Wolfe had filed initially her claim with the wrong court (that is, the CAVC, where she asked for a writ of mandamus). The proper course for challenging a VA regulation, the Federal Circuit stated, was to file a petition directly in the Federal Circuit. Two months later, Ms. Wolfe, and another veteran, Joshua Kimmel, filed the petition suggested by the Federal Circuit and in  its October25, 2022 decision, the Federal Circuit again ruled that the VA rule was unlawful insofar as it allowed VA to deny reimbursement for coinsurance.  This time, however, the Federal Circuit formally invalidated the VA regulation, ordered an expedited rulemaking to replace the invalidated rule, and directed VA to process claims and pay reimbursement for coinsurance.   

Background Information on the Wolfe and Boerschinger Lawsuits
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 $5.2 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.

Media contact:
For NVLSP: Patty Briotta, office 202-621-5698 or email: patty@nvlsp.org

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