Wolfe v. Wilkie*
On September 9, 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) ruled in a case styled Wolfe v. Wilkie, that VA’s 2018 reimbursement regulation violates 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 veterans for all of their past and future out-of-pocket emergency medical expenses not covered by the veteran’s private insurance other than copayments. The class action petition was filed on behalf of veterans Amanda Wolfe and Peter Boerschinger by the National Veterans Legal Services Program (NVLSP) and Sidley Austin LLP on a pro bono basis.
This ruling is the second time the CAVC struck down the VA regulation governing reimbursement of emergency medical expenses. Five years ago, NVLSP appealed to the CAVC on behalf of veteran Richard Staab after the VA declined to reimburse him for any of the $48,000 he incurred for emergency open heart surgery purely because Medicare covered part of the emergency care bill. In the CAVC’s 2016 landmark precedential decision in Staab v. Shulkin, it invalidated the VA regulation that prohibited reimbursement for any of the veteran’s emergency medical expenses merely because some, but not all of those expenses, were covered by the veteran’s insurance. The Court held in the Staab case that Congress intended in the ECFA for 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 and the regulation violated this statute. Yesterday’s ruling struck down the regulation that VA promulgated in 2018 to replace the regulation struck down by the CAVC in Staab.
Based on the VA’s past estimates, compliance with this decision will require VA to pay from $1.8 billion to $6.5 billion in reimbursements to hundreds of thousands of veterans with reimbursement claims filed or pending during the period from 2016-2025.
This is only the second time in the CAVC’s 30-year history that it has granted a class action. In June 2019, CAVC certified its first class action in Godsey v. Wilkie, also brought by NVLSP.
History (Updated May 2020)*
On October 30, 2018, NVLSP filed a class action lawsuit in the U.S. Court of Appeals for Veterans Claims on behalf of veteran Amanda Wolfe. NVLSP asks the court in this lawsuit to overturn the thousands of VA decisions issued since January 9, 2018 that deny Ms. Wolfe and thousands of other veterans reimbursement of the emergency medical expenses they incurred in 2018 or before in a non-VA facility. All of these cases involve veterans who have insurance that covers some, but not all of the emergency medical expenses, and the VA denies reimbursement for the expenses that are not covered by the veteran’s insurance.
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.
According to the class action filed on Oct.30, 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.”
On New Year's Day 2019, NVLSP filed a class action lawsuit in the U.S. Court of Appeals for Veterans Claims (CAVC) on behalf of of Peter E. Boerschinger. NVLSP accuses the U.S. Department of Veterans Affairs (VA) of sending false information throughout 2018 to tens of thousands of veterans who had applied for VA reimbursement of emergency medical expenses they incurred at non-VA facilities. The lawsuit asserts that the VA has a practice and policy of informing these veterans – falsely – that they cannot qualify for any reimbursement if they have partial coverage for their emergency medical expenses under a health plan contract. This VA representation is inaccurate, according to NVLSP, because it directly violates the binding decision issued by the CAVC in 2016 in Staab v. Shulkin, which invalidated a VA regulation because it prohibited reimbursement if the veteran had partial coverage under a health care plan. As part of Mr. Boerschinger’s lawsuit, NVLSP also seeks to compel the VA to provide corrected information to all veterans who received the inaccurate communications and to reinstate their reimbursement claims.
*On April 6, 2020, the U.S. Court of Appeals for Veterans Claims (CAVC) granted the Motion for Enforcement of the Court’s Sept. 9, 2019 decision in Wolfe v. Wilkie filed by NVLSP, which serves as counsel for the class of veterans who have applied to the VA for reimbursement of their emergency medical expenses incurred at non-VA facilities that are not covered by the veteran’s private insurance. The April 6th Order requires the VA to begin one week later, on April 13th, to mail more than 1 million corrective notices to veterans who had applied for reimbursement, but whom VA had misinformed about what emergency medical expenses the VA can reimburse. VA had admitted earlier in the Wolfe case that these inaccurate notices could have deterred the veterans from pursuing their reimbursement claims. The Court rejected VA’s argument that it should not send any of the corrective notices until the appeal VA contemplates filing is finally decided by the U.S. Court of Appeals for the Federal Circuit.
The April 6th Order also requires VA to begin, no later than May 28, 2020, to re-decide the more than 72,000 VA decisions denying reimbursement that were invalidated by the Veterans Court because they violated the statute that governs VA reimbursement of the emergency medical expenses incurred by veterans at non-VA facilities. The Veterans Court rejected VA’s plea that it should not have to redecide these cases or make payments until the appeal VA contemplates filing is finally decided by the Federal Circuit.
If you are a member of the class in the Wolfe case, and have questions about the case, you can submit your questions to NVLSP by clicking on the form here: “ Wolfe Class Member Information Page". If you are a member of the class in the Wolfe case, and have questions about the case, you can submit your questions to NVLSP by using the “Wolfe Class Member Form”
Background on Wolfe and Boerschinger v. Wilkie
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 Wolfe v. Wilkie
10/30/18 Wolfe v. Wilkie Petition for Class Relief
10/30/18 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