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The 8-Year Battle Continues: NVLSP Again Sues VA Over Continued Refusal To Comply With 2010 Statute

Released 10/30/18 | Tags: Class Actions, Court of Appeals for Veterans Claims, Supporters, Veteran's Benefits

NVLSP Again Sues VA Over Continued Refusal To Comply With the 2010 Statute Requiring VA To Reimburse Veterans For Emergency Medical Expenses Incurred At Non-VA Facilities
Latest salvo is a class action, in ongoing 8-year battle to get VA to comply with the law

FOR IMMEDIATE RELEASE - October 30, 2018

WASHINGTON – The National Veterans Legal Services Program (NVLSP) filed a class action lawsuit today in the U.S. Court of Appeals for Veterans Claims (CAVC) against the Secretary of Veterans Affairs, Robert Wilkie.  The suit, filed with the pro-bono assistance of Sidley Austin LLP, is the latest chapter in an 8-year saga to get the VA to honor its obligations to reimburse veterans for emergency medical expenses incurred at non-VA facilities. 
NVLSP represents petitioner, Amanda Jane Wolfe, who seeks to represent the tens of thousands of other veterans who, like her, have been denied reimbursement by the VA over the last 10 months. 

This is the second time that NVLSP has filed suit in the CAVC over VA’s failure to comply with the Emergency Care Fairness Act of 2010 (ECFA). In the first lawsuit, filed in 2014, NVLSP represented Richard Staab after the VA refused to reimburse him for any portion of the $48,000 he was billed for emergency open-heart surgery simply because secondary insurance covered part of the emergency care bill. That lawsuit resulted in the CAVC invalidating the VA regulation that prohibited reimbursement for any of the veteran’s emergency medical expenses simply because some, but not all of those expenses were covered by the veteran’s insurance.  According to the CAVC, Congress intended the VA to step in as a “secondary payer” where other health care insurers cover only a portion of the cost of the veteran’s emergency treatment.

During the next 21 months, the VA put a moratorium on deciding the tens of thousands of pending reimbursement claims.  Finally, in January 2018, the VA issued a regulation to replace the one struck down in Mr. Staab’s case, and immediately began to decide the backlog of reimbursement claims. But the replacement regulation introduced a new hurdle by forbidding the VA from reimbursing a veteran “for any copayment, deductible, coinsurance or similar payment” incurred during emergency treatment at non-VA hospitals.

According to the class action filed today by Ms. Wolfe, the new hurdle violates the ECFA because that statute limits the scope of non-reimbursable expenses to only copayments or “similar payments.”

“It is a travesty to see the VA continuing to deny these benefits to needy veterans,” said attorney Bart Stichman, executive director and co-founder of NVLSP.  “The limited exception for copayments refers to a form of cost-sharing that is typically a minimal, fixed amount. Coinsurance, on the other hand, typically requires the veteran to pay a relatively high percentage of the remaining portion of the bill. The VA is trying to drive a Mack truck through the narrow phrase ‘copayments or similar payments’ to once again avoid its legal obligations.”     

The petitioner – Amanda Wolfe
Plaintiff Amanda Wolfe is a veteran of the U.S. Coast Guard who served for six years, with postings in Washington and Michigan, as well as service during Hurricane Katrina response and recovery.

She underwent an emergency appendectomy in September 2016 after becoming suddenly ill. With the nearest VA hospital at least three hours away, Wolfe drove herself to the closest emergency room and had life-saving emergency surgery immediately. Wolfe recovered and filed a claim with the VA for reimbursement for $2,558.54, which was the amount of her $22,348.25 hospital bill not covered by her employer-sponsored health insurance.

With the hospital threatening to send her bill to collections in fall 2016, Wolfe had to pay it with savings that she had intended to use for post-adoption expenses later in 2016. The VA completely denied Wolfe’s claim for reimbursement in February 2018, one month after issuing its replacement regulation, because the remaining $2,558.54 was what Wolfe owed under her insurance policy for copayments, deductibles, and coinsurance.  

Wolfe noted that had she not signed up for employer-sponsored health insurance, the VA would have paid the entire $22,348.25 hospital bill without trouble. She says the VA’s decision to place new obstacles to reimbursement deters veterans from getting other health insurance. “If I needed emergency care, I thought the VA would still take care of me. But the VA didn’t do that and left me hanging,” said Wolfe. “There’s power in numbers and I hope other veterans feel that way and will step forward if they have also been denied. This is not right, and many of the veterans who need this help from the VA are old and sick and not able to fight this battle.”

Veterans Denied the Benefits to Which They Are Entitled
Between 2010 and 2016, the VA denied as many as 748,000 veteran requests for reimbursement because the veteran’s health insurance paid a portion of the treatment expenses. After the 2016 decision in Mr. Staab’s case, the VA Secretary estimated that the VA would need to pay $2 billion in reimbursements to veterans in its current budget cycle, and in prior court filings the VA estimated it would have to reimburse veterans for $6.5 billion in emergency medical expenses over the next decade due to the Court’s ruling.

"It is telling that with the new hurdles VA introduced in its 2018 regulation, the VA now estimates it will basically pay veterans pennies on the dollar in reimbursements compared with what it had previously estimated it would have to pay under the CAVC's interpretation of the ECFA," said Stichman.  "This is a violation of the law."

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

About NVLSP
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 benefits they have earned through their service to our country. 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 contacts:
For NVLSP: Patty Briotta, office 202-621-5698, cell 703-517-1796, patty@nvlsp.org
For NVLSP: Ami Neiberger-Miller, cell 703-887-4877, ami@steppingstoneLLC.com

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