U.S. Department of Veterans Affairs in Washington, D.C.  April 9, 2013.  Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

U.S. Department of Veterans Affairs in Washington, D.C. April 9, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

The U.S. Court of Appeals for Veterans Claims recently held that the Department of Veterans Affairs had been using an invalid regulation since 2009 to deny reimbursement to veterans for emergency medical costs incurred outside of the V.A. health care system.
“This is a major win for veterans, and their families,” said Bart Stichman, joint executive director of National Veterans Legal Services Program and an attorney in the case. “This practice has violated federal law since at least 2009. The court’s ruling means the V.A. will have to amend the unlawful regulations it should have amended in 2009 and do right by these veterans.”
He added that the ruling was “not just a win for one veteran,” but that “veterans who have pending claims for reimbursement will benefit. Plus, veterans whose reimbursement requests were turned down years ago may now be able to get paid by claiming that the previous denial contained ‘clear and unmistakable error.’ “
The unanimous three-judge panel decision on April 8 came in Staab v. McDonald, an appeal from the Board of Veterans’ Appeals by Richard Staab who served in the U.S. Air Force from November 1952 to November 1956 as a ground radio operator.
In December 2010, Staab suffered a heart attack and one or more strokes and was transported to a non-V.A. hospital where he underwent emergency open heart surgery. He was discharged in June 2011. Staab sought reimbursement of his expenses that were not covered by Medicare—approximately $48,000. In December 2013, the Board of Veterans’ Appeals denied Staab’s request for reimbursement of the non-V.A. medical costs.
In its April 8 ruling, the panel noted that Congress in 2009 passed the Emergency Care Fairness Act to “allow the V.A. to reimburse veterans for treatment in a non-V.A. facility if they have a third-party insurer that would pay a portion of the emergency care.” The plain language and the history of the statute, wrote Judge William Greenberg for the panel, make clear that Congress intended the V.A. to reimburse a veteran for that portion of expenses not covered by a health-plan contract.
But the V.A. had adopted a regulation that said a veteran was ineligible for reimbursement if he or she had health care coverage “in whole or in part” for emergency treatment. In 2012, the V.A. refused to remove the “or in part” language from the regulation, according to the court.
In its brief to the court, the V.A. argued that Staab’s argument for reimbursement was “implausible” and “inconsistent with the plain language of the statute, at odds with the principles of statutory construction, and a false indictment of V.A.’s implementing regulation.”
However, the panel, in a thorough examination of the statute and regulation, rejected all of the V.A.’s arguments.
“After Congress amended [38 U.S.C] section 1725 in 2009, however, the Secretary’s regulation became wholly inconsistent with the statute, and the Secretary declined to remedy this inconsistency,” Greenberg wrote. “Congress intended that veterans be reimbursed for the portion of their emergency medical costs that is not covered by a third party insurer and for which they are otherwise personally liable, and because the regulation does not execute the language of the statute or the intent of Congress, it is invalid and will be set aside by the Court.”
Greenberg was joined by judges Alan Lance Sr. and Coral Pietsch. As a panel ruling, the decision in Staab has precedential effect—particularly important to veterans who have complained of the many nonprecedential rulings by single judges of the court.
Staab’s appeal was decided without oral argument. The panel remanded Staab’s claim to the Board of Veterans’ Appeals for “proper application” of the law. It also directed the board to provide “expeditious treatment,” noting a 1792 Supreme Court decision which said: “[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”
The department will be forced to amend its regulations and retrain its staff on the rules, so other veterans who needed emergency medical care outside the V.A. system are not denied reimbursement, simply because they have partial secondary insurance, Stichman said.
Stichman said he doesn’t yet know how many veterans in the past seven years were denied reimbursement of emergency medical costs not covered by their secondary insurer (it would require researching all of the board’s denials of those costs, “a lot of legwork,” he said). But he noted that the National Veterans Legal Services Program has four other cases pending in the court raising the identical issue as in Staab. “And we don’t see all of the cases,” he added. “It would seem fairly common.”
Note from RALPH HUTTO, local Veterans Service Officer: “This will take some time to get put into the federal regulations, but in the meantime veterans can get their records and receipts ready to submit as an appeal. Call Karen or me for an appointment at 727-7929 and we will be glad to help you with this.
“I had a veteran that came by my office a month or so ago. He had lost his life savings and his home. I need for him to contact me. I don’t remember his name, but at that time we couldn’t help him. We can now.”