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VA Finalizes Rule Requiring Payments for Non-VA Emergency Claims Under NVLSP Court Victory in Staab

Released 1/17/18 | Tags:

VA Finalizes Rule Requiring Payments on as many as 748,000 Claims for Reimbursement of Non-VA Emergency Medical Expenses Under NVLSP’s Court Victory in Staab 

The Department of Veterans Affairs (VA) finalized a rule on January 9th that requires the VA to reimburse veterans for non-VA emergency medical expenses under the National Veterans Legal Services Program’s (NVLSP’s) court victory in the case Staab v. Shulkin. The VA estimated NVLSP’s legal triumph would require payment of tens of millions of dollars in medical expenses incurred by hundreds of thousands of veterans over the last seven years. 

VA revised its regulations to comply with the April 2016 U.S. Court of Appeals for Veterans Claims decision that invalidated the VA regulation prohibiting any reimbursement when other health insurance pays a portion of the treatment expenses. Prior to this decision, the VA had informed Mr. Staab and hundreds of thousands of other veterans seeking reimbursement for non-VA emergency medical care that the department would not cover any costs for such care if they had a portion covered by other health insurance. Because Medicare paid a portion of Mr. Staab’s emergency care costs, he was forced to cover approximately $48,000 in unpaid private hospital bills after emergency surgery in 2010.

The January 9th rule expands eligibility for reimbursement to veterans who are partially, but not fully covered by a private or government health care insurance plan for non-VA emergency treatment and establishes a corresponding reimbursement methodology. The rulemaking additionally extends the eligibility criteria so that veterans who incur emergency transportation expenses in order to receive that treatment can be reimbursed for that transportation. VA will now begin processing as many as 748,000 past claims for non-VA emergency care under these revised regulations.

By law, VA claims it cannot reimburse for co-pays, cost shares or deductibles required by other health insurance veterans have.

The VA rule notice can be read in its entirety here

After Mr. Staab’s request for reimbursement of $48,000 was denied by the VA Medical Center in Minnesota, he filed an appeal to the Board of Veterans’ Appeals in May 2012. After the Board denied the appeal, he then further appealed to the Court of Appeals for Veterans Claims (CAVC), where he was represented by NVLSP. In April 2016, a unanimous decision by a three-judge panel of the CAVC struck down the VA regulation that VA had been relying on to deny reimbursement requests from veterans like Staab, who had incurred emergency medical care costs outside the VA healthcare system.

In the decision, the appellate court rebuked VA and confirmed the VA ignored the “plain language” of the 2009 law requiring “VA to reimburse a veteran for that portion of expenses not covered by a health plan contract.”

After the 2016 court win, 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.

Last June, over a year after VA appealed the case, VA Secretary David Shulkin decided to voluntarily withdraw the appeal in Staab and stated the regulation would be revised to comply with the court’s decision.

The January 9th rule states that when a judicial decision nullifies a VA regulation or how it interprets the law, it “cannot affect prior final VA decisions.” For that reason, the VA will not retroactively pay benefits for claims whose denial became final before the Staab decision on April 8, 2016. However, the VA will retroactively reimburse veterans based on claims that were pending on or filed after the Staab decision on April 8, 2016. 

More information about the Staab case is highlighted in a recently featured NVLSP video.


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: Pamela Goldsmith, 202.621.5698, Pamela@nvlsp.org

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