Citation Nr: 1315472 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-48 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Brecksville, Ohio THE ISSUE Entitlement to payment for unauthorized medical expenses incurred at EMH Regional Medical Center on October 10, 2009. ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to March 2005. The appellant is EMH Regional Medical Center, the entity that treated the Veteran on October 10, 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision of the Department of Veterans Affairs (VA) VA Medical Center (VAMC) in Brecksville, Ohio. The record before the Board consists of a paper file and an electronic file known as Virtual VA.. FINDINGS OF FACT 1. The Veteran is not service connected for any disability. 2. Neither the Veteran nor EMH Regional Medical Center approached third parties for reimbursement of medical expenses incurred on October 10, 2009. 3. EMH Regional Medical Center's claim seeking payment of unauthorized medical expenses for treatment provided to the Veteran on October 10, 2009, was received more than 90 days after the Veteran was discharged from the facility. CONCLUSION OF LAW The criteria for payment of unauthorized medical expenses at EMH Regional Medical Center on October 10, 2009 have not been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.121, 17.1000-1008 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As a preliminary matter the Board notes that the provisions of 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159 (2012) concerning VA's duties to notify and assist claimants are not applicable to this claim because the claim in this case is governed by the provisions of Chapter 17 of Title 38 of the United States Code. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). Legal Criteria The Veterans Millennium Health Care and Benefits Act, Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556 (1999), provides general authority for the reimbursement of non-VA emergency treatment for nonservice-connected disabilities. See 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-1008 (2012), as amended by 68 Fed. Reg. 3401 -04 (Jan. 24, 2003) (effective March 25, 2003). The final regulation at 38 C.F.R. § 17.1002(a) through (i) provides a list of nine separate prerequisites, which must be met, before VA may advance payment or reimbursement for emergency services provided for nonservice-connected disabilities in non-VA facilities. To be eligible for payment or reimbursement under this authority, the following criteria must be 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 was not feasibly available and an attempt to use them before hand 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 that 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 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 or in part, 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 (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). See 38 C.F.R. § 17.1002. VA regulations also provide that a claim under the Millennium Bill must be filed within 90 days after the latest of the following: (1) July 19, 2001; (2) the date that the Veteran was discharged from the facility that furnished the emergency treatment; or (3) the date the Veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. See 38 C.F.R. § 17.1004(d). Under 38 C.F.R. § 17.1004(e), if after reviewing a claim the decisionmaker determines that additional information is needed to make a determination regarding the claim, such official will contact the claimant in writing and request additional information. The additional information must be submitted to the decisionmaker within 30 days of receipt of the request or the claim will be treated as abandoned, except that if the claimant within the 30-day period requests in writing additional time, the time period for submission of the information may be extended as reasonably necessary for the requested information to be obtained. 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 makes various changes to veterans' mental health care and addresses other health care related matters. Relevant to the instant case, the new law amends 38 U.S.C.A. § 1725 and § 1728 to make the payment or reimbursement by VA of private treatment mandatory as opposed to discretionary, if all of the pertinent criteria outlined above are otherwise satisfied. Specifically, the word "shall" in both statutes was changed from the word "may." Additionally, this amendment added a provision, which essentially expands one of the criteria that defines the meaning of "emergency treatment" to include treatment rendered (1) until such time as the Veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer; or . . . (2) until such time as a Department facility or other Federal facility accepts such transfer if: (A) 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 (B) 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. The regulations do not require that a Veteran's treatment actually be proven emergent from a purely medical standpoint in order to qualify for payment or reimbursement. Rather, it need be demonstrated only that the initial evaluation and treatment were 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, that is, placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. 38 C.F.R. § 17.1002(b); see Swinney v. Shinseki, 23 Vet. App. 257 (2009) (to the effect that both medical and lay evidence may be considered in a prudent-layperson evaluation and that neither 38 U.S.C.A. § 1725 nor 38 C.F.R. § 17.1002 required a medical finding of an emergency). Analysis The appellant, EMH Regional Medical Center, argues that it is entitled to payment of unauthorized medical expenses that the Veteran incurred because of treatment provided for a non-service connected condition on October 10, 2009. Briefly, the claims file does not indicate that the Veteran has any service-connected disabilities. Hence, the provisions of 38 U.S.C.A. § 1725 are applicable to this claim. Initially the Board must determine whether the appellant filed its claim in a timely manner. The regulation, 38 C.F.R. § 17.1004(d), is clear that the beginning of the 90 days commences with, as applicable here, the date that the Veteran was discharged from the facility that furnished the emergency treatment; or the date the Veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. In this case, the Veteran was treated at EMH Regional Medical Center on October 10, 2009 for a nonservice-connected injury. On April 8, 2010, EMH Regional Medical Center filed a claim seeking payment from VA for medical services provided on October 10, 2009. Treatment and billing records submitted in support of the claim show that the Veteran did not have health insurance. Since the Veteran did not have health insurance and the evidence does not otherwise show that attempts were made to obtain payment of medical expenses from third parties, the Board finds that the appellant and/or Veteran had 90 days from October 10, 2009, to submit a claim for payment or reimbursement of unauthorized medical expenses. Since the appellant's claim was not received within 90 days after the treatment date and discharge from EMH Regional Medical Center, the Board must deny the claim as a matter of law. Briefly, in the notice of disagreement, EMH Regional Medical Center said it obtained insurance information from the Veteran on November 13, 2009, and promptly billed VA for services rendered. Unfortunately, the appellant did not provide proof that a claim for payment of unauthorized medical expenses had been filed within 90 days after the Veteran was discharged from the facility. In summary, since EMH Regional Medical Center's claim for payment of unauthorized medical expenses was filed on April 8, 2010, and not within the 90-day period provided for filing such claims under 38 C.F.R. § 17.1004(d), the claim must be denied as a matter of law. (CONTINUED ON NEXT PAGE) ORDER Entitlement to payment for unauthorized medical expenses incurred at EMH Medical Center on October 10, 2009 is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs