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NVLSP Wins $2 Billion in Medical Care Benefits for Hundreds of Thousands of Veterans

Released 6/16/17 | Tags: Court of Appeals for Veterans Claims, Veteran's Benefits

Court of Appeals for Veterans Claims ruling will stand, NVLSP offers advice for veterans with prior denials for emergency medical care reimbursement


WASHINGTON – The National Veterans Legal Services Program (NVLSP) has won $2 billion for hundreds of thousands of veterans who received emergency medical care outside the Department of Veterans Affairs (VA) and were wrongfully denied reimbursement by the VA for the emergency medical expenses they incurred.

In a congressional hearing on Wednesday, June 14, 2017, VA Secretary David Shulkin announced that the VA would “voluntarily withdraw” its appeal in the legal case, Staab v. Shulkin, that required VA to reimburse these veterans.

“We applaud Secretary Shulkin for his decision to put veterans first, to comply with the ruling, and to pay these outstanding claims for reimbursement of emergency medical expenses,” said Bart Stichman, lead attorney for the Staab case and joint executive director of NVLSP.

“This is a huge win – not just for Mr. Staab, an Air Force veteran who was left with $48,000 in medical bills after a heart attack, but for all veterans and their families,” said Stichman. “An estimated 373,000 veterans have waited as long as seven years for reimbursement in emergency medical care claims. In a hearing last week, Secretary Shulkin estimated the VA will need to pay $2 billion in reimbursements to veterans in this budget cycle, and in prior court filings the VA has estimated it will have to reimburse veterans for  $6.5 billion in emergency medical expenses over the next decade due to NVLSP’s victory in the Staab case.”

“I would like to thank Senator Mike Rounds, Senator Richard Blumenthal, and other members of the Senate Veterans Affairs Committee, for their diligence in pursuing this issue, as well as our pro bono counsel, Sidley Austin LLP. I would like to thank the American Legion for filing a friend of the court brief in support of our petition and their lawyers at Jones Day who drafted their brief,” said Stichman. In his announcement, Shulkin said Sen. Rounds and Sen. Blumenthal, were right to sharply criticize VA’s decision to appeal.

Also on Wednesday, Secretary Shulkin announced that the VA has drafted a regulation to authorize payment for Staab related claims, and has sent the regulation to the Office of Management and Budget (OMB). Draft regulations must clear OMB and be published in the Federal Register before VA can begin reimbursements. VA estimates that this process could take at least 9 months.

“While the regulation is going through its required review process at OMB, we suggest veterans with claims for reimbursement of emergency medical expenses that were previously and finally denied because they had additional insurance, should prepare a new claim,” said Stichman. “Veterans may find it helpful to talk with a veterans service officer or advocate in preparing their claim.

Veterans have one year to appeal a denial of reimbursement for emergency medical expenses they incurred outside the VA system. If the claim was denied because they had partial secondary insurance, they should keep their claim alive by appealing to the Board of Veterans’ Appeals. Veterans in this situation should file VA Form 21-0958. Veterans who have not yet filed a claim for reimbursement should file a formal written claim with the VA’s Veterans Health Administration. 

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 emergency medical care claims that VA has denied.

Staab 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.

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.

His case then went through a variety of appeals and made it to the Court of Appeals for Veterans Claims (CAVC), where he was represented by NVLSP. The case was known as, Richard W. Staab v. Robert A. McDonald (later re-named Staab v. Shulkin).

In April 2016, a unanimous three-judge panel of the CAVC struck down the VA regulation that VA had been relying upon to deny reimbursement requests from veterans like Staab, who had 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 with the Emergency Care Fairness Act, but thereafter the VA unlawfully “declined to remedy this inconsistency.”  

After the 2016 court win, the VA appealed to the Court of Appeals for the Federal Circuit and filed legal briefs with the Federal Circuit in an attempt to overturn the ruling of the CAVC.  At the same time, the VA mounted two unsuccessful efforts  to “hotline” legislation that would have invalidated the court win.

In February 2017, the VA also filed a motion to stay the precedential effect of the CAVC’s decision. In its written argument, the VA said it had suspended adjudication of 373,000 claims for reimbursement of emergency, private health services until it could determine how to deal with the effect of the Staab decision. The VA estimated that the Staab decision would result in a financial cost of up to $273 million in 2017, and over $6.5 billion over the next decade. Two business days later the court summarily denied the motion. The VA continued to appeal the case.

The announcement by Secretary Shulkin indicating the VA will “voluntarily withdraw” its appeal means that the 2016 court ruling will stand.

Senate Testimony – June 14, 2017 (start at 1:10:23)
Senate Testimony – June 7, 2017 (start at 1:07:00)
NVLSP news release on the Staab court win – April 2016
Original Staab decision – April 2016

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, ami@steppingstonellc.com


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