Citation Nr: 18152555
Decision Date: 11/23/18	Archive Date: 11/23/18

DOCKET NO. 15-10 436A
DATE:	November 23, 2018
ORDER
Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Wellington Regional Medical Center from October 20, 2012, to October 24, 2012, is granted.
FINDINGS OF FACT
1. The Veteran was hospitalized for a nonservice-connected condition at Wellington Regional Medical Center from October 20, 2012, to October 24, 2012.
2. That hospitalization constituted emergency treatment and a VA facility was not feasibly available at the time.
2. The Veteran’s private health insurance, Medicare Part A, appears to have covered a portion of the medical expenses and costs for the Veteran’s private hospitalization from October 20, 2012, to October 24, 2012. 

CONCLUSION OF LAW
The criteria are met for payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Wellington Regional Medical Center from October 20, 2012, to October 24, 2012.  38 U.S.C. § 1725, 5107 (2012); 38 C.F.R. §§ 17.1001, 17.1002, 17.1005 (2018)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had active military service from December 1966 to November 1968.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in West Palm Beach, Florida.
Medical reimbursement
VA is authorized to reimburse veterans for emergency medical treatment under 38 U.S.C. § 1725 and 38 U.S.C. § 1728.  To be eligible for reimbursement under 38 U.S.C. § 1728, the treatment must have been for associated with a service-connected disability or the Veteran must be a participant in a vocational rehabilitation program.  38 U.S.C. § 1728 (a); 38 C.F.R. § 17.120 (2018).
The record does not show that the Veteran is service-connected for an altered mental status disability, nor that the Veteran is a participant in a vocational rehabilitation program.  Therefore, the Veteran did not meet the criteria for payment of authorized or unauthorized medical expenses of 38 U.S.C. § 1728 (2012); thus, the Veteran’s claim for payment must be considered under criteria for determining entitlement under the Veterans Millennium Healthcare and Benefits Act (Act), 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000 - 17.1008.
The criteria that must be met are as follows:
(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 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 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, 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).
38 C.F.R. § 17.1002.  Failure to satisfy any of the criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility.  See 38 U.S.C. § 1725 (b); 38 C.F.R. § 17.1002 (g).  The criteria are conjunctive, not disjunctive; thus, all of the criteria found in 38 U.S.C. § 1725 must be met before payment will be authorized.  See Melson v. Derwinski, 1 Vet. App. 334 (1991).
At the outset, the Board notes that a review of the relevant evidence demonstrates that the Veteran has already met many of the substantive and administrative criteria for payment or reimbursement of nonservice-connected medical care listed under 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002.  Specifically, there is no question that the services provided from October 20, 2012, through October 24, 2012, were provided in a hospital emergency department; that a VA or other Federal facility/provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; that the Veteran is financially liable to the private provider for treatment; that the nonservice-connected altered mental status was not caused by an accident or work-related injury for which the Veteran would have contractual or legal recourse against a third party such as state-mandated automobile reparations insurance; and that the Veteran is not eligible for reimbursement under 38 U.S.C. § 1728.  See 38 C.F.R. §§ 17.1002.  Moreover, VA has already determined that the Veteran’s treatment was emergent; that the claim was filed in a timely manner; and that there was no indication that the Veteran stayed in the private hospital past the time that he became stabilized.  Further, the evidence is at least in equipoise that 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 only remaining issue, and the central issue, is whether the Veteran has no coverage under a health-plan contract for payment or reimbursement.  The claim was denied on the basis of the Veteran having private health insurance.  Specifically, the Statement of the Case noted that the Veteran had Medicare part A.  Indeed, the Board finds that the Veteran did have Medicare part A during his medical treatment.
However, in April 2016 the Court of Appeals for Veterans Claims in Staab, 28 Vet. App. at 55 (2016) specifically examined the language of 38 C.F.R. § 17.1002 (f), and found the regulation to be invalid, as being incongruous with the intention of the applicable statute - 38 U.S.C. § 1725.  The Court found it clear from the plain language of 38 U.S.C. § 1725 (b)(3)(B) that it was Congress’s intent to reimburse a veteran for that portion of expenses not covered by a health-plan contract, to include Medicare, when the amount covered by the third party was less than total.  The Court determined that since the implementing regulation, 38 C.F.R. § 17.1002 (f), did not execute the language of the statute or the intent of Congress, it is “invalid and will be set aside by the Court.”  The Court noted that 38 C.F.R. § 17.1002 (f) was “wholly inconsistent with” the plain meaning of § 1725 and Congressional intent that veterans be reimbursed for portion of their emergency medical costs that was not covered by a third-party insurer and for which they were otherwise personally liable.  Id. 
Specifically, the applicable parts of the governing statute in the present case, 38 U.S.C. § 1725 (b)(3)(B) and (C), state that a veteran is personally liable for emergency treatment if the veteran has no entitlement to care or services under a health-plan contract or has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider.  Simply stated, reimbursement is prohibited only if the health-plan contract wholly extinguishes the Veteran’s liability. 
In addition, in January 2018, VA issued an interim final rule revising its regulations concerning payment or reimbursement for emergency treatment for non-service connection conditions at non-VA facilities.  In order to implement Staab, VA amended 38 C.F.R. §§ 17.1002, 17.1003, and 17.1005 to expand eligibility for emergency treatment and/or emergency transportation to include veterans who receive partial payment from a health-plan contract.  Reimbursement remains prohibited only if the health-plan contract wholly extinguishes the veteran’s liability.
Under the amended version of 38 C.F.R. § 17.1002 (f), payment or reimbursement under 38 U.S.C. 1725 for emergency treatment will be made if a Veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment.  The interim final rule became effective on January 9, 2018 and applies to all claims pending on or after April 8, 2016, which includes the Veteran’s particular claim.  Therefore, the amended regulation allows for payment or reimbursement through VA for the balance of medical expenses that remains when a third-party payer would extinguish only part of a veteran’s liability. 
As discussed above, the Veteran meets all the eligibility requirements for repayment by VA of the medical expenses he incurred during a private hospitalization with Wellington Regional Medical Center from October 20, 2012, to October 24, 2012.  The Court’s recent decision in Staab confirms that even though the Veteran had private health insurance coverage through Medicare, and such coverage paid for a portion (but not all) of his emergency care bill, he is not barred from payment or reimbursement of the balance of his hospital bills that remained unpaid after his private insurance made its payment.  Simply stated, partial coverage by a private health insurance company no longer renders a claimant ineligible for reimbursement under 38 U.S.C. § 1725.  In particular, VA should cover all the unreimbursed costs associated with the Veteran’s hospitalization at Wellington Regional Medical Center. 
Accordingly, the Board finds that payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Wellington Regional Medical Center from October 20, 2012 to October 24, 2012, is warranted.  38 U.S.C. §§ 1725, 5107.
However, on a side note, 38 U.S.C. § 1725 (c)(4)(D) does provide for certain payment limitations by VA, and those payment limitations were not set aside by the Court in Staab.  In this regard, VA is prohibited from paying the Veteran’s copayment or coinsurance or deductible payments to Medicare for which the Veteran is responsible under his private health-plan contract, for services provided during his private hospitalization with Wellington Regional Medical Center from October 20, 2012, to October 24, 2012.  Finally, payment or reimbursement of such private medical expenses is generally limited to no more than 70 percent of the amount payable under the applicable Medicare fee schedule for the treatment in question.  38 C.F.R. § 17.1005 (a).  As such, when implementing the award in the present case, the VA Medical Center should consider these limitations.
 
Kristin Haddock
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	I. Cannaday, Associate Counsel