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Court: VA wrongly withheld money from vets, must reimburse them for emergency care costs

By NIKKI WENTLING | STARS AND STRIPES Published: September 11, 2019

WASHINGTON — A federal court ruled Tuesday that the Department of Veterans Affairs wrongly denied reimbursements for some veterans who received emergency medical treatment at non-VA facilities — a ruling that could cost the agency billions of dollars.

The U.S. Court of Appeals for Veterans Claims approved the case, Wolfe v. Wilkie, as a class action and ordered the VA to reimburse the affected veterans. Attorneys for the plaintiffs in the case, citing past VA estimates, said the agency would be responsible for paying anywhere between $1.8 billion and $6.5 billion to hundreds of thousands of veterans.

“All of this is unacceptable,” wrote Judge William S. Greenberg, who authored the opinion of the three-judge panel. “Such an extraordinary situation demands extraordinary relief.”

A VA spokesman said Wednesday that the agency “is aware of this decision and reviewing it.”

Tuesday marked the second instance in which the court ruled the VA must reimburse veterans for emergency medical expenses that they incurred at non-VA facilities that are not covered by their private insurance.

In 2016, the same court struck down a VA regulation that kept the agency from reimbursing veterans’ emergency medical expenses when a portion of the cost — but not all of it — was covered by their private insurance.

The VA created a new regulation following the 2016 decision, but it also excluded many expenses from reimbursement if the veteran had other insurance. The court said Tuesday that the new regulation was “startling” — it mimics the old one and is also unlawful.

“The agency has effectively rolled back the clock and, with no transparency, essentially readopted a position we have authoritatively held inconsistent with Congress’ command,” Greenberg wrote.

Moreover, the VA had sent notices to veterans after the 2016 ruling that contained incorrect information about what kind of emergency medical care the VA would reimburse.

“In other words, the agency was telling veterans that the law was exactly opposite to what a federal court had held the law to be,” Greenberg wrote. “Who knows how many veterans relied on such a misrepresentation — for that is what it was — in deciding not to appeal VA decisions that denied reimbursement for non-VA emergency medical care.”

The issue was brought to the court by the National Veterans Legal Services Program, a nonprofit that represents veterans in their attempt to secure VA benefits. The lawsuit was filed on behalf of Amanda Wolfe and Peter Boerschinger, both veterans who had their claims for reimbursement denied by the VA.

Wolfe submitted a claim for $2,558.54 after she drove herself to the closest emergency room for lifesaving surgery in 2016. Her total bill amounted to $22,348.25, but most of it was covered by her private insurance through her employer.

Boerschinger’s VA claim totaled $1,340 after he received emergency treatment for pneumonia and congestive heart failure in 2018. He was forced to use non-VA care because the VA hospital nearest him had closed its emergency room.

Wolfe’s and Boerschinger’s cases represent thousands of other veterans who were denied reimbursements because portions of their treatment were covered by private insurance, according to their attorneys. The court ordered the VA submit a plan within 45 days about how it would notify veterans affected by the ruling.

“The court’s decision rights a terrible injustice and its order ensures that veterans who were unjustly denied reimbursement for critical emergency treatment at non-VA facilities will finally be reimbursed,” Bart Stichman, executive director of the National Veterans Legal Service Program, said in a statement. “It is a hard-won victory for hundreds of thousands of veterans.”

wentling.nikki@stripes.com
Twitter: @nikkiwentling

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