Citation Nr: 1312745 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-45 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Brecksville, Ohio (Cleveland, Ohio VA Medical Center) THE ISSUE Entitlement to reimbursement or payment of unauthorized private medical expenses incurred from April 30 through May 6, 2009 and from August 26 through August 29, 2009. ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to June 1978. This matter came before the Board of Veterans' Appeals (Board) from an October 2009 determination by the Department of Veterans' Affairs Medical Center (VAMC) in Brecksville, Ohio (Cleveland VAMC), that the appellant was not entitled to payment or reimbursement for unauthorized non-VA medical expenses. FINDINGS OF FACT 1. Prior authorization by VA for private medical care provided by North Ohio Gastroenterology, Inc. (NOGI) during April, May and August 2009, was not given. 2. At the time of the April, May and August 2009 medical treatment, the Veteran was not service connected for any disability. 3. The Veteran had Medicare insurance, which covered all but residual costs of his April, May and August 2009 private medical treatment by NOGI. CONCLUSION OF LAW The criteria for payment or reimbursement to NOGI for unauthorized private medical expenses incurred in April, May and August 2009, have not been met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.54, 17.1000-17.1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION NOGI contends that it is entitled to reimbursement for medical expenses for care provided to the Veteran in April, May and August 2009. Specifically, NOGI claims that it provided on-call gastroenterologist care while the Veteran was treated in St. John's Medical Center on April 30, 2009, May 1, 2009, and August 26, 28, and 29, 2009. The appellant asserts that it was not their decision as to where the Veteran was treated, but that they were paged by the hospital to consult, evaluate, and treat the Veteran's gastrointestinal bleeding, anemia, and liver symptoms. The Veteran died in September 2009. The proper claimant for these claims includes the Veteran who received the services (or his or her guardian), the hospital, clinic, or community resource that provided the services, or a person or organization other than the Veteran who paid for the services. 38 U.S.C.A. §§ 1725(a)(1), (2)(A)-(B), 1728(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.123, 17.1004(a) (2012). The Board notes that, in adjudicating a claim for reimbursement of medical expenses, VA must initially make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the Veteran received in a private facility. See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54. This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555 (1994). In this case, the medical records do not reflect, nor has it been claimed that the VA was contacted for authorization prior to the private treatment in question. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application for authorization is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. Here, there is no evidence that the Veteran made an application to VA within 72 hours after the hour of admission; nor has this been asserted. No evidence of record confirms any communication between the VA and the private medical facility within the applicable 72-hour time frame. Accordingly, the Board must conclude that prior authorization for the private treatment in question was not obtained pursuant to 38 C.F.R. § 17.54, and payment is not warranted for expenses incurred in conjunction with the treatment. As such, the Board will consider whether the Veteran is eligible for payment or reimbursement for services not previously authorized. See Hennessey v. Brown, 7 Vet. App. 143 (1994). Congress has authorized the reimbursement for unauthorized emergency medical treatment under two statutory provisions. 38 U.S.C.A. §§ 1725, 1728. There is no indication from the record, nor has the appellant alleged, that the Veteran had a total disability, or, treatment at the private medical facility was for an adjudicated service-connected disability, a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or for any treatment of a veteran who is participating in a rehabilitation program. See 38 U.S.C.A. § 1728; 38 C.F.R. §§ 17.120 (2012). Consequently, he did not qualify under § 1728. The Board must turn to the law regarding reimbursement for emergency services for nonservice-connected conditions in non-VA facilities. Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may also be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008 (2012). Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177. The provisions of the Act became effective as of May 29, 2000. Under 38 U.S.C.A. § 1725, a veteran is only considered to be 'personally liable' for treatment if he/she (1) is financially liable to the provider of emergency treatment for that treatment (2) has no entitlement to care or services under a health-plan contract (3) has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider; and (4) is not eligible for reimbursement for medical care or services under section 1728 of this title. 38 U.S.C.A. § 1725(b)(3) (West 2002). In addition, the provision at 38 U.S.C.A. § 1725(f)(2)(A) (West 2002) defines a health-plan contract to include an insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or similar arrangement under which health services for individuals are provided or the expenses of such services are paid. This definition includes an insurance program described in section 1811 of the Social Security Act (42 U.S.C. 1395c) or established by section 1831 of that Act (42 U.S.C. 1395j). See 38 U.S.C.A. § 1725(f)(2)(B). That is, 42 U.S.C. 1395c refers to Medicare Part A and 42 U.S.C. 1395j refers to Medicare Part B. In essence, the law and regulations specifically exclude payment under the Millennium Act if the Veteran has coverage under either Medicare Part A or Medicare Part B. VA regulations provide substantive conditions for payment or reimbursement as follows. Payment or reimbursement under 38 U.S.C. 1725 for emergency treatment (including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged)) will be made only if all of the following conditions are met: (a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (b) The claim for payment or reimbursement for the initial evaluation and treatment is for a condition 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 (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part); (c) A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for Veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a Veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non-VA medical center); (d) At the time the emergency treatment was furnished, 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; (e) The Veteran is financially liable to the provider of emergency treatment for that treatment; (f) The Veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the Veteran has coverage under a health-plan contract but payment is barred because of a failure by the Veteran or the provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); (g) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the Veteran or provider against a third party for payment of such treatment; and the Veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole, the Veteran's liability to the provider; and (h) The Veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (as noted above, 38 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of Veterans, primarily those who receive emergency treatment for a service-connected disability). 38 CFR § 17.1002 (2012). The Board notes that changes were made to 38 C.F.R. §§ 17.1001, 17.1002, in December 2011 that were effective as of January 20, 2012. See 76 Fed. Reg. 79,067-79,072 (Dec. 21, 2011). The changes implemented certain provisions of the Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. 110-387. However, the changes in the regulations do not affect the adjudication of this claim. Effective May 21, 2012, VA amended its regulations regarding payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities to conform with amendments made to 38 U.S.C. § 1725 by the Expansion of Veteran Eligibility for Reimbursement Act, Pub. L. No. 111-137, 123 Stat. 3495 (2010). See 38 C.F.R. §§ 17.1001, 17.1002, 17.1004, 17.1005. The amendments expand the qualifications for payment or reimbursement to Veterans who receive emergency services in non-VA facilities, and establish accompanying standards for the method and amount of payment or reimbursement. The amendments also state that VA will provide retroactive payment or reimbursement for emergency treatment received by a Veteran in certain circumstances. See 77 Fed Reg 23615-23618 (2012). However, the amendments simply add 38 C.F.R. § 17.1002(f) (formerly enumerated at 38 C.F.R. § 17.1002(g)) and do not affect the previously established prohibition against VA paying or reimbursing for emergency medical treatment where the Veteran had a health-plan contract in place. Id. The evidence submitted by NOGI includes statements showing charges for the medical services provided to the Veteran during the time in question. These statements clearly show that Medicare covered a portion of the Veteran's medical expenses incurred and owed to NOGI. The evidence in this case is unequivocal. The Veteran had a health-plan contract as defined by the statute. The appellant has not disputed this fact. While they argue that the VA should cover the remaining charges incurred by the Veteran, the law is dispositive. That the Veteran had Medicare coverage is a bar to payment by VA. See 38 U.S.C.A. § 1725(b)(3)(B); 38 C.F.R. § 17.1002(f). ORDER Entitlement to reimbursement or payment of unauthorized private medical expenses incurred from April 30 through May 6, 2009, and from August 26 through August 29, 2009, is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs