Citation Nr: 1512719 Decision Date: 03/25/15 Archive Date: 04/01/15 DOCKET NO. 13-09 269A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Omaha, Nebraska THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at St. Francis Medical Center from January 31, 2011, to February 13, 2011. ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the United States Navy from November 1964 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2011, April 2011, July 2011, May 2012, and August 2012 decisions by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Omaha, Nebraska. The appellant requested a hearing at the RO before a Veterans Law Judge in an April 2013 VA Form 9. However, the appellant cancelled that request in March 2014. Therefore, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2014). A review of the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. At the outset, the Board notes that a claimant for payment or reimbursement under 38 U.S.C.A. § 1725 must be the entity that furnished the treatment, the veteran who paid for the treatment, or the person or organization that paid for such treatment on behalf of the veteran. 38 C.F.R. § 17.1004(a). In the present case, the appellant is the entity that furnished the treatment. FINDINGS OF FACT 1. As of January 31, 2011, the Veteran's medical condition at St. Francis Medical Center was stable for transfer to a VA facility. Nonetheless, the Veteran remained at St. Francis Medical Center beyond the point of stability from January 31, 2011, to February 13, 2011. 2. On and after January 31, 2011, St. Francis Medical Center made and documented reasonable attempts to request transfer of the Veteran to the VAMC in Omaha, Nebraska, but the transfer of the Veteran was not accepted by the VAMC due to a lack of beds available from January 31, 2011, to February 13, 2011. CONCLUSION OF LAW The criteria are met for payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at St. Francis Medical Center from January 31, 2011, to February 13, 2011. 38 U.S.C.A. § 1725, 5107 (West 2014); 38 C.F.R. §§ 17.1002(b), (c), 17.1005 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION On Friday, January 28, 2011, the Veteran was brought to the private emergency room of St. Francis Medical Center in Grand Island, Nebraska, after experiencing shortness of breath, chest pain, coughing, and anxiety. The onset was sudden - two hours earlier, after assisting an elderly lady with her groceries. He was driven by private vehicle to the hospital. Emergency room notes indicate that he was in "severe distress" and hypotensive. He was admitted to surgery immediately for a spontaneous pneumothorax. He had a chest tube placed in his chest. During his private hospitalization, the Veteran was also diagnosed with Pickwickian syndrome, hypertension, morbid obesity, sleep apnea, diabetes, anxiety, emphysema, and anemia, among other diagnoses. He remained hospitalized until February 13, 2011. He was then discharged and instructed to follow up at the VA. Initially, under 38 U.S.C.A. § 1703, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C.A. § 1703(a) (West 2014); 38 C.F.R. § 17.52(a) (2014). However, the Veteran and the appellant have never contended, and the evidence does not demonstrate, that he received prior VA authorization for his private hospitalization. Therefore, application of 38 U.S.C.A. § 1703(a) for reimbursement of authorized private hospitalization is unwarranted. In short, the issue of prior authorization is not applicable here. Regardless, when a veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment, specifically 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. The appellant has requested reimbursement for unauthorized medical expenses, contending that the private hospitalization from January 31, 2011, to February 13, 2011, was rendered in a medical emergency of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. Pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725 (West. 2014); 38 C.F.R. §§ 17.1000-17.1008 (2014). There is no dispute that the Veteran's private hospitalization was for a nonservice-connected disorder, as he was not treated for his service-connected hearing loss or tinnitus at the time of hospitalization. He also does not have permanent and total disability due to a service-connected disability. He has submitted several invoices from the private facility itself and other associated private medical providers. VA has already authorized reimbursement for the Veteran's private hospitalization expenses at St. Francis Medical Center for the time period from January 28, 2011, through January 30, 2011. See July 2011 VAMC decision. During this initial period of hospitalization at St. Francis Medical Center, VA has conceded this period of hospitalization was for a medical emergency and that VA facilities were not feasibly available during that time. See 38 C.F.R. § 17.1002(b), (c). It is not in dispute that these criteria for unauthorized emergency treatment are met. In addition, the appellant has already met many of the substantive and administrative criteria for payment or reimbursement of nonservice-connected medical care listed under 38 C.F.R. § 17.1002(a)-(h) (2014). That is, it has been already determined by the VAMC that the claims for reimbursement were timely filed by the appellant and other providers; the Veteran is financially liable to the private providers of treatment; the Veteran is without health insurance; the Veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; the Veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided; and the services in question were provided in a hospital emergency department. See 38 C.F.R. §§ 17.1002(a)-(h), 17.1005 (2014). However, VA did not authorize payment or reimbursement of his medical expenses for his private hospitalization at St. Francis Medical Center for the time period from January 31, 2011, to February 13, 2011. The basis of the denial was that the Veteran was stable for safe transfer to a VA facility for continued treatment by January 31, 2011. In other words, his claim was only approved for authorization of payment up until the point the medical condition had stabilized, which in this case appears to have been until January 31, 2011. Both the VA and private medical providers do not dispute the conclusion that the Veteran was stable and ready for transfer on January 31, 2011. However, the appellant provider has appealed the VAMC's denial of reimbursement, contesting that VA should make payment here beyond the point of stabilization for the Veteran's unauthorized hospitalization from January 31, 2011, to February 13, 2011. See 38 U.S.C.A. § 1725(f)(1); 38 C.F.R. § 17.1005(c). Effective October 10, 2008, the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). This bill made various changes to veteran's mental health care and also addresses other health care related matters. The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of "emergency treatment" beyond the point of stabilization. In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C.A. § 1725 and § 1728. The Board will apply the more liberal amended law in this case because the Veteran's private treatment occurred in January and February of 2011, subsequent to the October 2008 effective date of the amendments. Specifically, the amended statutes expand the meaning of "emergency treatment" under section 1725(f)(1) and section 1728(c) by stating: (1) The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary-- (A) When Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (C) Until-- (i) such time as the Veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) such time as a Department facility or other Federal facility accepts such transfer if-- (I) at the time the Veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and (II) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the Veteran to a Department facility or other Federal facility. See 38 U.S.C.A. § 1725 (West 2014). With regard to the issue of stabilization, amended VA regulation provides the term "stabilized" means that no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to occur if the veteran is discharged or transferred to a VA or other Federal facility that VA has an agreement with to furnish health care services for veterans. 38 C.F.R. § 17.1001(d). With regard to the issue of stabilization, VA regulation provides that VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. For this purpose, VA considers that an emergency ends when the designated VA clinicians at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: (1) could have been transferred from the non-VA facility to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment, or (2) could have reported to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment. 38 C.F.R. § 17.1005(b). However, claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergent treatment (that is, beyond the point of stabilization), only if: (1) the non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans) and the transfer of the veteran was not accepted, and (2) the non-VA facility made and documented reasonable attempts to request transfer of the veteran to VA (or request transfer of the veteran to VA (or to another Federal facility that VA has an agreement with to furnish health care services for veterans), which means the non-VA facility contracted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients at a local VA (or other Federal facility) and documented such contact in the veteran's progress/physicians' notes, discharge summary, or other applicable medical record. 38 C.F.R. § 17.1005(c). Finally, under VA regulation, if a stabilized veteran who requires continued non-emergency treatment refuses to be transferred to an available VA facility (or other Federal facility that VA has an agreement with to furnish health care services for Veterans), VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the veteran up to the point of refusal of transfer by the veteran. 38 C.F.R. § 17.1005(d). In short, under the new version of 38 U.S.C.A. § 1725, effective October 10, 2008, and its implementing regulation, 38 C.F.R. § 17.1005, VA is authorized to make payment beyond the point of stabilization if certain criteria are met. The public policy behind the change in law is that, if VA fails to promptly accept transfer of a veteran to a VA facility upon request once he has stabilized, it is unjust to make the veteran liable for additional expense at the non-VA facility due to no fault of his or her own. In determining the claim at issue, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upon review of the evidence, the Board finds that the requirements for payment or reimbursement for unauthorized emergency medical treatment at St. Francis Medical Center from January 31, 2011, to February 13, 2011, under the amended version of 38 U.S.C.A. § 1725, are met. In the instant case, the Board acknowledges that both VA and private providers have indicated that the Veteran's condition was stable for transfer from January 31, 2011, to February 13, 2011. See 38 C.F.R. § 17.1005(b). The Veteran remained at the private facility, St. Francis Medical Center, through February 13, 2011. It is the VAMC's position that, although the Veteran was stable on January 31, 2011, the private facility made no attempts to contact VA for transfer until February 9, 2011. See January 2013 Statement of the Case (SOC). However, the Board finds that the evidence of record confirms that the private facility made and documented reasonable attempts to request transfer of the Veteran to the VAMC in Omaha, Nebraska, but the transfer of the Veteran was not accepted by the VAMC due to a lack of beds available from January 31, 2011, to February 13, 2011. See 38 C.F.R. § 17.1005(c). A February 4, 2011, private hospital progress note indicated that the Veteran informed VA that he was at St. Francis on the day after his admission. It was also noted that the social worker at St. Francis called the VAMC in Omaha, Nebraska, but no beds were available at that time. The Veteran stated to the social worker that he would like to be transferred to VA as soon as a bed is available. A February 8, 2011 private hospital progress note indicated that the Veteran was put on a VAMC transfer list, but no bed was available at that time. A February 9, 2011, private hospital progress note reflected that a hospital social worker spoke to a VA bed coordinator, but no bed was available. A February 10, 2011, private hospital progress note recorded that the Omaha VAMC stated that they had no room for the Veteran at the current time. Several February 11, 2011, private hospital progress notes again indicated that, when contacted, the Omaha VAMC stated that no beds were available. One of the staff at St. Francis even wrote "[c]an't believe still without beds." A February 13, 2011, discharge report from St. Francis, in discussing the Veteran's medical history from January 28, 2011, to February 13, 2011, stated that "[t]hroughout all of this, contact with the Omaha VAMC was maintained, and they never developed a bed for him to be transferred. I continued to manage, and eventually tubes were pulled, and he was felt stable for discharge." A July 2012 physician letter from Internal Medical Associates expressed "great frustration" with how VA handled the Veteran's situation. The private physician stated that it was commonplace for VA not to have beds available. The physician pleaded that she would have sent the Veteran to the VAMC on the first day of admission in January 2011 if VA had beds available, which they were not. The physician added that oral contact was made with VA from the beginning of the Veteran's hospitalization, but that written progress notes would not generally document that contact with VA, unless VA actually had beds available. An April 2013 VA Form 9 from the appellant further describes the 13 days of treatment for the Veteran as very difficult and medically complex. It was noted that the lack of available beds at VA is an issue the private providers continually face when caring for veterans. The appellant also opined that the bureaucratic red tape of the VA had become a tremendous burden and must be lifted. If the VA simply provided written confirmation from the beginning as to the availability or unavailability of its beds, this would eliminate the confusion regarding stabilization issues. Finally, a February 2013 VA clinical tracking record clarified that there was a VA note in CPRS dated January 31, 2011, from the Veteran to the VA Clinic informing VA that he was hospitalized at St. Francis Medical Center. Therefore, it is apparent from this record that VA was aware of the Veteran's situation as early as January 31, 2011, which was the date he was deemed stable. Nonetheless, it does not appear from the record that VA had any beds available in order to accommodate a transfer. Accordingly, the Board finds that payment or reimbursement of unauthorized medical expenses incurred during the Veteran's hospitalization at St. Francis Medical Center Hospital from January 31, 2011, to February 13, 2011, is warranted. 38 U.S.C.A. §§ 1725, 5107 (West 2014). In making this determination, the Board emphasizes that the factual circumstances present in this case are precisely the type of situation the amended statute was designed to remedy. ORDER Payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at St. Francis Medical Center from January 31, 2011, to February 13, 2011, is granted. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs