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Gathered by Bob Kinsler, SSG (ret), US Army, DAV, VFW District Four- Dept. of Ok, PRO/Editor
The VA’s obligations to pay for a veteran’s emergency treatment at a non-VA facility.
Published on September 19, 2016 by Michael Angelotti, Attorney at City of Philadelphia Law Department
Sometimes, however, veterans who are enrolled in the VA health care system need emergency treatment. In these circumstances, it is not always possible to reach the nearest VA health care facility. In those cases, does the VA provide any financial assistance to the veteran who had to seek emergency treatment?
The answer is yes. Veterans who are actively involved with the VA healthcare system may be eligible for reimbursement for emergency treatment they receive in non-VA facilities. The veteran’s right to reimbursement comes from a federal statute, 38 U.S.C. §1725. There are two main requirements for eligibility, that the veteran be enrolled in the VA healthcare system, and that the veteran must be personally liable for the emergency treatment he received.
The VA is liable for reimbursement even where part of the cost of the treatment is covered by Medicare.
There are instances where a veteran’s emergency care is partially covered by a third party agency, such as Medicare. A veteran may still be personally liable for the cost of the emergency treatment, and thus be eligible for reimbursement by the VA, even if some of the cost of the treatment is covered by Medicare. The VA is liable to reimburse the veteran for the remainder.
This may seem like a common sense approach to reimbursement, simply to apportion the cost of the treatment not covered by a third party to the VA. However, it was not always so. The Secretary of Veterans Affairs had published a regulation that held specifically to the contrary. It would take a case before the Court of Appeals for Veterans Claims to resolve the issue.
The Court decided the case of Staab v. McDonald, 20 Vet. App. 50 (2016) earlier this year. At issue was a VA regulation, 38 C.F.R. §17.1007(f). The VA, citing the regulation, denied reimbursement to a veteran who had received emergency treatment at a non-VA facility. Part of the cost of the Veteran’s treatment was covered by Medicare. The regulation held that the VA would reimburse the veteran if he had no coverage that would pay for the treatment in whole or in part. Because Medicare paid for part of the veteran’s treatment, the VA argued that it was not reliable for the remainder.
The veteran in Staab served in the Air Force from 1952 to 1956. In 2010, he suffered a heart attack and at least one stroke. He sought emergency treatment at a non-VA facility, where he had open heart surgery. He was finally discharged about six months later. While Medicare covered a portion of the veteran’s treatment, he was left with a bill of $48,000.
The veteran appealed the VA’s denial of his request for reimbursement. The Court looked to the statute and examined what Congress intended when it passed the law. The purpose of the law is to reimburse the veteran when he is personally liable for the treatment. This happens when the veteran has no entitlement to care or services under a health-plan contract (such as Medicare), the Court reasoned. “Entitled,” as used in the law, meant an “absolute right” to the benefit, the Court said. The partial coverage by Medicare did not wholly extinguish the veteran’s liability to the facility, and thus did not bar reimbursement for the veteran under the statute.
The regulation upon which the VA relied conflicted with the law. As a result, the Court held that the regulation was invalid. The veteran was entitled to reimbursement.
A veteran’s eligibility for reimbursement applies to emergency treatment. But this does not mean that the veteran needs a medical certification that the treatment that he received was emergent. The standard is whether a prudent layperson would feel that a delay in seeking treatment would be hazardous to her health or life.
The case of Swinney v. Shinseki, 23 Vet. App. 257 (2009) also examined 38 U.S.C. §1725 in analyzing whether a veteran should be reimbursed for care she received at a non-VA facility. Ms. Swinney was an Army veteran, serving from 1997 – 1998. She had a service connected disability and was actively enrolled in the VA health care system.
In December 2005, she experienced severe gastrointestinal issues. She was admitted to a hospital due to excessive vomiting, and discharged about a week later. Soon after, she was re-admitted to an emergency room with similar issues, and discharged three days later. Immediately after her discharge, she experienced vomiting again, and was re-admitted to an emergency room. She stayed in the hospital for nearly a week before her discharge. Ultimately, the veteran had incurred a $55,000 medical bill. She submitted the bill to the VA for reimbursement.
The VA refused to reimburse her for the medical bills. They argued that the treatment was non-emergent. Further, the veteran had not received pre-authorization for the treatment.
The Board of Veteran’s Appeals affirmed the VA’s denial. They cited a certification by a physician that said that the veteran’s treatment was not “emergency treatment.” The Board discounted the veteran’s own statements that she was “still sick” each time she was discharged from the hospital, causing her to seek readmission.
The Court of Appeals for Veterans Claims reversed the Board’s decision. The Board erred because it failed to apply the “prudent layperson” standard. The law does not require a physician’s statement that treatment was an emergency in order for a veteran to be eligible for reimbursement.
Instead, the Court pointed to another section of the regulations, this time 38 C.F.R. §17.1007(b). When analyzing a case under the statute and the regulation, the issue is whether, under the circumstances, at the time that the veteran sought treatment (and thus not in hindsight), a prudent layperson (not a medical expert) would reasonably expect that her condition was such that a delay in seeking treatment would be hazardous to her health or life. Here, a totality of the circumstances is taken into account: not just a physician’s opinion, but the veteran’s own belief as well.
38 U.S.C. §1725 was passed for a specific purpose. It was the intent of Congress to ensure that veterans have access to emergency treatment when it is needed. Regulations that have conflicted with this intent have been declared invalid.
The statute is an important tool in veterans’ health care. There are times, especially during a medical emergency, when a veteran is not able to travel to a VA health care facility to receive treatment. In such cases, a veteran enrolled in the VA health care system should reasonably expect to be reimbursed by the VA for the emergency treatment at a non-VA facility.