Non-VA Emergency Care Coverage for Veterans
The following was contributed by James H. Martin, MD / Life Member, NAVAPD
The letter below was sent to VA Secretary McDonough in February by VSOs. It concerns two veterans that sued the VA for non-VA emergency care and won. However the VA has yet to pay either of them and Richard Staab died on May 12th, 2021.
What message does this send to the veterans? Congress passed a law in 2010 allowing for veterans to have access to non-VA emergency care, the court supported the veteran's claims, and the VA is still appealing. Veterans should never hesitate when experiencing symptoms of a stroke or heart attack and proceed to the nearest hospital where interventions can be initiated. The VA is sending the wrong message with the potential of causing harm.
A contributing factor to the situation is that Medicare and VA systems are entirely separate with no coordination of benefits. We should advocate for this to change. Medicare and VA benefits need to be seamlessly available for veterans at any hospital, including the VA. Deductibles and co-pays should not be the responsibility of the veteran. The deductibles and co-pays should be considered as having been earned by the veterans prior service and paid in full.
If there ever was a justifiable argument for not allowing the VA to bill Medicare, it does not currently serve our patients' best interests. Importantly, coordinating Medicare and VA benefits will allow for the VA to more effectively compete in a very competitive healthcare market.
Mr. Secretary,
Now that you have assumed your new leadership role, we hope you will put into practice the philosophy you espoused during your recent confirmation hearing. Specifically, you stated that as Department of Veterans Affairs (VA) Secretary “every decision I make will flow from two principles: Does the decision increase access for veterans and does it improve outcomes for vets?" We hope this is certainly true when it comes to the VA’s reimbursement of emergency medical expenses by veterans at non-VA facilities.
Congress directed the VA to reimburse expenses that veterans participating in the VA’s healthcare system incur when obtaining emergency treatment at non-VA healthcare facilities for non-service-connected conditions through the Emergency Care Fairness Act of 2010 (ECFA, codified at 38 U.S.C. § 1725). Yet, for years the VA has defied this statute and two judicial decisions (Staab v. Shulkin and Wolfe v. Wilkie) from the U.S. Court of Appeals for Veterans Claims (CAVC) to illegally deny veterans’ legitimate emergency health care claims. 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.
In the September 2019 ruling in Wolfe v. Wilkie, the Court was unequivocal and ruled that the Emergency Care Fairness Act of 2010 prohibits the VA from denying reimbursement for deductibles and coinsurance that veterans owed under their health insurance policy for emergency medical expenses incurred at a non-VA facility. Yet, the VA has appealed the Wolfe decision to the Federal Circuit. As a result, hundreds of thousands of veterans continue to suffer severe financial and medical hardships as they wait to be reimbursed, which have only been exacerbated during the COVID-19 pandemic.
We are writing to ask that you direct the VA to voluntarily withdraw its appeal and finally pay the veterans their long overdue emergency medical expenses. Additionally, we request that based on the Court’s ruling, you immediately correct the VA’s policy to refuse to reimburse veterans for deductibles, and coinsurance payments they owed under their private health care insurance policy. Withdrawing the VA’s appeal and correcting the VA’s policy on reimbursement would certainly improve veterans’ outcome in this matter.
The lawful reimbursement of the emergency medical expenses at non-VA facilities is an issue that is supported by leading veterans service organizations including the Disabled American Veterans (DAV), the Paralyzed Veterans of America (PVA), and the Veterans of Foreign Wars
(VFW). In their recent report, The Independent Budget: FY 2022-2023 for the Department of Veterans Affairs, Budget Recommendations, cited the Staab case and “continue to call on the VA to fulfill its responsibility to fully implement this decision .”
We, the undersigned veterans service organizations, who represent millions of veterans, service members and their families, respectfully request that you resolve this matter for veterans who have been unjustly suffering the consequences of the VA’s illegal denial of legitimate emergency health care claims at non-VA facilities.
Sincerely,
James W. “Bill” Oxford National Commander The American Legion
Edward R. Reese, Jr. Executive Director Washington Headquarters DAV (Disabled American Veterans)
Barton F. Stichman, Executive Director National Veterans Legal Services Program
Carl Blake, Executive Director Paralyzed Veterans of America
Harold “Hal” Roesch, II Commander-in-Chief Veterans of Foreign Wars
John Rowan National President/CEO Vietnam Veterans of America
cc: Chairman Jon Tester, Senate Committee on Veterans’ Affairs Ranking Member Jerry Moran, Senate Committee on Veterans’ Affairs Chairman Mark Takano, House Committee on Veterans’ Affairs Ranking Member Mike Bost, House Committee on Veterans’ Affairs Members of Senate Committee on Veterans’ Affairs Members of House Committee on Veterans’ Affairs