In Response to NVLSP’s Class Action Lawsuit, VA Admits It Misled Tens of Thousands of Veterans

WASHINGTON, April 1 -- The National Veterans Legal Services Program issued the following news release:

In response to the National Veterans Legal Services Program (NVLSP) class action lawsuit, Wolfe and Boerschinger v. Wilkie, the U.S. Dept. of Veterans Affairs (VA) admitted that it misled tens of thousands of veterans who had applied for reimbursement of the emergency -care expenses they incurred at non-VA facilities. The admission came in VA's March 15, 2019 court-ordered response to the lawsuit that NVLSP filed on behalf of Peter E. Boerschinger. Mr. Boerschinger seeks to represent the tens of thousands of other veterans who, like him, received VA correspondence inaccurately informing them that they could not qualify for reimbursement if their expenses were partially covered by private insurance. Under the law, veterans can qualify for reimbursement even if their emergency medical expenses are partially covered by private insurance. As part of Mr. Boerschinger's lawsuit, NVLSP seeks to compel the VA to provide corrected information to all veterans who received the inaccurate communications and to reinstate their reimbursement claims.

"NVLSP is gratified that our class action lawsuit has forced the VA to admit to the widespread systematic errors in its emergency-care reimbursement system and to provide corrected information to tens of thousands of veterans who received the false information," said NVLSP Executive Director Bart Stichman. "NVLSP's fight for veterans is far from over. NVLSP will continue to pursue our class action lawsuit with full vigor to correct the other claim in our lawsuit -- VA's continued policy of denying reimbursement for the deductibles and co-insurance payments they are required to pay to their private insurer."

According to the VA, the Veterans Health Administration (VHA) will begin to take several steps to remedy the false information that was sent to veterans. VHA stated that on Feb. 8, 2019, it stopped adjudication of all emergency-care reimbursement claims that were missing needed information or that did not meet criteria for reimbursement. The VHA announced a three-tiered corrective action plan that involves corrected notice letters, new adjudications, and renewed appellate rights to all veterans whose claims are denied after they are re-adjudicated. The VHA's three categories of corrective actions are:

* Category A veterans are those whose claims were denied based on the presence of other health insurance. VHA will advise them by letter of the erroneous adjudication and notify them that their claims will be reopened and re-adjudicated. VHA stated that these letters will be issued beginning in April 2019, but did not address when it will complete these mailings. Nor did VHA address when these cases will be redecided. Once decided, Category A veterans will ultimately be informed via letter of the re-adjudication results and the new one-year period to appeal any adverse decision.

* Category B veterans are those whose claims were denied for reasons other than the presence of other health insurance. They will be treated similarly to Category A veterans. VHA stated that it will begin to send letters notifying them that their claims will be reopened and redecided in May 2019.

* Category C veterans are those whose claims were rejected as incomplete. VHA will begin to mail corrected notices in May 2019. These corrected notices will advise Category C veterans of the correct eligibility criteria for reimbursement.

Additionally, VHA will also institute some global organizational changes for its reimbursement claims system. This includes revising all of its letter templates to remove the erroneous other-health-insurance criterion.

Background

On Jan. 1, 2019, NVLSP amended the class action lawsuit it filed two months earlier in the U.S. Court of Appeals for Veterans Claims (CAVC) to accuse the VA of sending false information throughout 2018 to tens of thousands of veterans who had applied for VA reimbursement of emergency medical expenses they incurred at non-VA facilities. The lawsuit, filed with the pro bono assistance of Sidley Austin LLP, asserts that the VA has a practice and policy of informing these veterans - falsely - that they cannot qualify for any reimbursement if they have partial coverage for their emergency medical expenses under a health plan contract. This VA representation is inaccurate, according to NVLSP, because it directly violates the binding decision issued by the CAVC in 2016 in Staab v. Shulkin, which invalidated a VA regulation precisely because it prohibited reimbursement if the veteran had partial coverage under a health care plan.

NVLSP has filed suit three times over VA's failure to comply with the Emergency Care Fairness Act of 2010 (ECFA). NVLSP represented veteran Richard Staab (Staab v. Shulkin) in the first landmark case filed in 2014 after the VA declined to reimburse him for any of the $48,000 he incurred for emergency open heart surgery purely because secondary insurance covered part of the emergency care bill. In that lawsuit, the CAVC nullified the VA regulation that prohibited reimbursement for any of the veteran's emergency medical expenses merely because some, but not all of those expenses were covered by the veteran's insurance. In that watershed ruling in 2016, the CAVC ruled that 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 and invalidated VA's regulation.

Twenty-one months later, the VA issued a new regulation in an effort to comply with the Staab decision. According to the second class action lawsuit filed at the CAVC in October 2018 by NVLSP on behalf of Ms. Amanda Wolfe (Wolfe v. Wilkie), the new regulation violates the ECFA because it takes the narrow provision in the ECFA allowing VA not to reimburse veterans for copayments or "similar payments," and adds deductibles and co-insurance payments to the list of non-reimbursable expenses, which are not similar to copayments at all.

About NVLSP

The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law. NVLSP's success in these lawsuits has resulted in more than $5.2 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation's definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go towww.nvlsp.org.