VA PREDICTS EMERGENCY CARE CLAIM TSUNAMI IF RULING UPHELD
More than two million claims for private sector emergency healthcare services provided to VA-enrolled veterans since February 2010 could be eligible for VA reimbursement if a recent ruling by the U.S. Court of Appeals for Veterans Claims is allowed to stand, the VA general counsel has warned.
The counsel also has warned in court documents that over the next decade VA could be swamped with an estimated 68.6 million additional claims for emergency care reimbursements, which could drive up VA health costs over that period by as much as $10.6 billion.
Despite these alarms, and VA introducing a new legal argument, a full panel of judges on the claims court voted six-to-one last month to deny VA’s motion to rehear the case, and instead made final its ruling of last April in the case of Richard W. Staab v. Robert A. McDonald.
VA has 60 days, until September 20, to appeal the decision to the U.S. Court of Appeals for the Federal Circuit, a near certainty given what’s at stake. Meanwhile, VA officials say they are unable to begin to pay any of the emergency healthcare claims that the Staab decision requires until they can prepare new regulations to support the complex review process.
“Even if the Staab decision is upheld,” VA officials explained in a statement Wednesday, “the statutory authority [cited by the court] does not set forth a payment methodology or payment limitations necessary for VA to implement the decision. Therefore, VA must follow legal procedures to [draft, publish for public comment and] implement regulations that would allow it to process payments for claims impacted by Staab.”
In Staab, the court agreed with lawyers for an 83-year Air Force veteran that the Department of Veterans Affairs wrongly ignored “plain language” of a 2010 statute meant to protect VA-enrolled veterans from out-of-pocket costs when forced to use outside emergency care. So VA should not have turned down Staab’s claim for roughly $48,000 in healthcare costs he was forced to pay following open-heart surgery in December 2010.
For many years VA has maintained that, by law, it can reimburse VA-enrolled veterans for outside emergency care only if they have no alternative health insurance. That includes Medicare, TRICARE, employer-provided health insurance or contracted health plans of any kind. The practical effect is that veterans with other health insurance often are stuck paying hefty out-of-pocket costs that their plans won’t cover, while veterans with no other insurance see VA routinely pick up their entire emergency care tab.
The logic of this offended some lawmakers and in 2009 they persuaded Congress to clarify the law on VA coverage of outside emergency care. A single provision was changed to say VA could “reimburse veterans for treatment in a non-VA facility if they have a third-party insurance that would pay a portion of the emergency care.”
To ensure colleagues understood the change, Staab’s attorneys noted, Sen. Daniel Akaka, then-chairman of the Senate Veterans Affairs Committee, said in a floor speech that it would “modify current law so that a veteran who has outside insurance would be eligible for reimbursement in the event that the outside insurance does not cover the full amount of the emergency care.”
The change took effect Feb. 1, 2010. But in preparing new regulations, VA officials interpreted the revised law as still preserving its way of screening most emergency care claims. The revised regulation said VA would continue to cover outside emergency care only if the “veteran has no coverage under a health-plan contract.”
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