Loophole leaves veterans liable for ER bills
By MAX FILBY AND MATTHEW SIMON | The Dayton Daily News | Published: May 7, 2019
DAYTON, Ohio (Tribune News Service) — Department of Veteran Affairs representatives said only a single $12 reimbursement has been paid under a law meant to stop the VA from denying payment for non-VA emergency care, said a congressional aide familiar with specifics of a meeting between congressional staff and the VA.
Part of that VA emergency care regulation is also known as the "Staab Rule."
The Staab Rule established the standards that the Veterans Administration must follow when reimbursing veterans for emergency medical care when they have other insurance and receive ER treatment at a non-VA hospital.
Today, Richard Staab, 86, the veteran behind the national case that changed the rule’s language, still remains without a refund from the U.S. Department of Veterans Affairs.
Staab hopes his story reaches every U.S. veteran as a warning about the medical debt he feels they could be left with if the emergency care rule in his name is not changed.
“It’s wrong. I think it’s wrong,” the Minnesota Air Force veteran said. The exclusive interview comes nearly one decade after Staab’s long legal struggle began — on a day in December 2010.
“Well, the heart was pounding. And I thought if I would sit down and rest, it would go away. But it didn’t. So they called the ambulance,” Staab said.
It would end up being life-threatening. Staab would survive emergency open-heart surgery at a non-VA hospital in St. Cloud, Minn., after suffering a heart attack and a stroke. He could not communicate for months.
“They told me I’d be lucky if I got out in a year when I was in the nursing home. I said, ‘Oh no, I’ll be out of here in six months.’ And I was,” Staab said.
The military and veterans have a large presence in Ohio, specifically in the Dayton region.
Wright-Patterson Air Force Base is the largest single-site employer in Ohio, with about 29,300 civilian employees and military personnel with an estimated economic impact of more than $15.54 billion. Ohio is also home to more than 864,000 veterans, according to the U.S. Census Bureau.
When it came time to pay his bills, the VA cited the federal Veterans Emergency Care Fairness Act. The law includes directing how the agency is expected to reimburse veterans for non-VA emergency care.
Under their interpretation of that law, the VA said because Staab had Medicare as other insurance covering part of his non-VA emergency care, they would not reimburse him for any of the remaining $48,000 in bills.
“It’s wrong what happened. And I don’t see how all the GIs would know what you need to do to be covered,” Staab said.
Looking back at some of his basic training pictures from 1952, as the Korean War veteran recalled his current VA struggle, he also remembered the promise his country made to him.
“You enlist with us. You get to have all health care taken care of. And this, and that. That was the big thing back then,” Staab said.
A large part of Staab’s story can be seen symbolically in the office f Staab’s lawyer Jackie Schuh’s office. Schuh is a veteran herself. This mission is personal. Multiple legal filings, medical records, and appeal pleadings show the journey of VA denials representing the Staab case for most of the last eight years.
“There’s nobody that should be put in the position that he’s been put in where they have to come up with $48,000 to pay for emergency fees,” Schuh said, “when they are promised when they sign the dotted line or do their 20 years, that they’re going to be free from that result. It’s ridiculous.”
“So it’s got to be fixed. I mean, it’s sad to say what has been promised to Dick, and all the other veterans who have that vested benefit, is not what they’re receiving,” the lawyer added.
After years of legal fights, in 2016 the United States Court of Appeals for Veterans Claims ruled in Staab’s favor.
Judges said in 2010, when Congress had changed the law, they intended for the VA to act as a “secondary payer,” when veterans’ other health insurance only covered part of their non-VA emergency treatment.
Last year, what was thought to be a final clarification of this statute called the ‘Staab Rule,’ named after Richard Staab, was finally put into the VA’s rule book.
“And so the Staab Rule made it unconstitutional, or perhaps illegal is a better way to say it, to have the VA implement denials internally when the law required they grant the request for coverage,” Schuh said.
VA’s history: not answering refund questions
During the course of a three-year investigation by Dayton, Ohio, television station News Center 7's I-team, a House Veterans Affairs Committee spokesperson confirmed in January 2018, more than one million Staab Rule-related veterans’ claims were waiting to be processed.
However, that number differs from what VA spokesperson Randal Noller said in February 2018. Noller said 217,000 veterans are impacted nationally. Refunds, Noller said at that time, would add between $165 million and $298 million to their budget during the next five calendar years.
However, when answering questions in October 2018, an unnamed VA Public Affairs spokesperson said once the Staab Rule was published, and all claims were processed, they could not answer how many veterans had been refunded.
“These claims became part of our normal workload,” the VA Public Affairs email said. “They are not tracked separately.”
In February 2018, Noller could not answer how many veterans waiting for refunds had died.
“The VA is unable to determine how many Veterans with denied claims since 2010 have died,” Noller wrote.
Staab’s story is also personal for National Veterans Legal Services Program, or NVLSP Executive Director Bart Stichman.
He previously was part of the team representing Staab nationally, and is now fighting the VA’s emergency care denials with a class action lawsuit.
While Staab’s court victory specified the VA has to pay the remainder of a non-VA emergency bill, even if a veteran has other insurance, the NVLSP claims that is not happening and says the VA is rejecting claims anyway.
“The problem with the new regulation is the VA came up with a different reason for why they shouldn’t reimburse veterans who have some private insurance,” Stichman said.
The class action suit also claims the VA circumvented Congress by adding the words “deductibles and coinsurance” to the part of the Staab Rule allowing the VA to not cover copayments.
“And the VA is trying to drive a Mack truck through that minor exception. So that everything you could possibly reimburse a veteran for, is not subject to reimbursement,” Stichman said.
Responding last month to the NVLSP suit, the VA claimed that because Congress used the term "similar payments" when referencing copayments, the agency was allowed to interpret the language to mean they are allowed to insert deductibles and coinsurance into the statute.