Veterans Court Also Rejects VA Plea to Delay Reimbursement Payments To 72,000 Veterans in NVLSP’s Class Action in Wolfe v. Wilkie
For Immediate Release - April 9, 2020
WASHINGTON - On April 6, 2020, the U.S. Court of Appeals for Veterans Claims (CAVC) granted the Motion for Enforcement of the Court’s Sept. 9, 2019 decision in Wolfe v. Wilkie filed by the National Veterans Legal Services Program (NVLSP), which serves as counsel for the class of veterans who have applied to the VA for reimbursement of their emergency medical expenses incurred at non-VA facilities that are not covered by the veteran’s private insurance. The April 6th Order requires the VA to begin one week later, on April 13th, to mail more than 1 million corrective notices to veterans who had applied for reimbursement, but whom VA had misinformed about what emergency medical expenses the VA can reimburse. VA had admitted earlier in the Wolfe case that these inaccurate notices could have deterred the veterans from pursuing their reimbursement claims. The Court rejected VA’s argument that it should not send any of the corrective notices until the appeal VA contemplates filing is finally decided by the U.S. Court of Appeals for the Federal Circuit.
The April 6th Order also requires VA to begin, no later than May 28, 2020, to re-decide the more than 72,000 VA decisions denying reimbursement that were invalidated by the Veterans Court because they violated the statute that governs VA reimbursement of the emergency medical expenses incurred by veterans at non-VA facilities. The Veterans Court rejected VA’s plea that it should not have to redecide these cases or make payments until the appeal VA contemplates filing is finally decided by the Federal Circuit.
The Veterans Court granted NVLSP’s enforcement motion as part of the ongoing class action filed by NVLSP on behalf of veterans Amanda Wolfe and Peter Boerschinger. NVLSP filed its motion with the assistance of pro bono counsel Sidley Austin LLP to enforce the CAVC ruling of September 9, 2019 that the VA’s 2018 reimbursement regulation violates the Emergency Care Fairness Act of 2010 (ECFA). The September 9th ruling also invalidated all VA decisions denying VA reimbursement for deductibles and coinsurance that were not covered by the veteran’s private insurance for the emergency medical expenses they incurred at non-VA facilities.
The Court’s April 6th Order also required that every 45 days after the Secretary has begun re-deciding the 72,000 wrongly denied reimbursement claims, the VA must submit a status report to NVLSP with an update on VA’s readjudication of those 72,000 claims. The Court also determined that it would enter judgment within two days of receiving notification from the VA that the notice process has begun, thereby allowing VA to appeal the Court’s decision to the Federal Circuit.
“We appreciate the CAVC’s prompt response to our enforcement motion to require the VA to quickly send corrective notices to veterans whom VA had misinformed and to readjudicate the reimbursement claims of veterans whose reimbursement claims were wrongly denied,” said NVLSP Executive Director Bart Stichman. “Hundreds of thousands of veterans affected by this class action have suffered far too long and endured severe financial hardships due to VA’s wrongful handling of their reimbursement claims.”
Based on the VA’s past estimates, compliance with Wolfe v. Wilke decision will require VA to pay from $1.8 billion to $6.5 billion in reimbursements to hundreds of thousands of veterans who have filed or will file reimbursement claims during the period from 2016-2025.
History
For nearly two years while the VA wrote a replacement regulation in an effort to comply with the 2016 ruling in NVLSP’s victory in the Staab case, the VA put a freeze on hundreds of thousands of pending emergency care reimbursement claims from veterans. Ultimately, in January 2018, the VA issued a regulation to replace the one invalidated inStaab , and began to resolve the backlog of reimbursement claims. But the replacement regulation created a new obstacle by forbidding the VA from reimbursing a veteran “for any copayment, deductible, coinsurance or similar payment” incurred during emergency treatment at non-VA hospitals.
The class action lawsuit filed at the CAVC in October 2018 by NVLSP on behalf of Ms. Amanda Wolfe (Wolfe v. Wilkie) claims that the new regulation violates the ECFA because in contrast to the ECFA, which limits the scope of non-reimbursable expenses to a copayment or “a similar payment,” the VA’s 2018 regulation added deductibles and co-insurance to the list of non-reimbursable expenses.
In its January 2019 filing, NVLSP amended the petition in Wolfe to add another class action lawsuit on behalf of petitioner, Peter E. Boerschinger, who sought to represent the hundreds of thousands of other veterans who, like him, received the inaccurate VA correspondence about the reimbursement criteria. As part of Mr. Boerschinger’s lawsuit, NVLSP also sought to compel the VA to provide corrected information to all veterans who received the inaccurate communications and to reinstate their reimbursement claims.
On Sept. 9, 2019, the CAVC ruled that the VA’s 2018 reimbursement regulation violated the Emergency Care Fairness Act of 2010 (ECFA) that requires VA to reimburse veterans for the emergency medical expenses they incur at non-VA facilities that are not covered by the veteran’s private insurance. The CAVC certified the case as a class action and ordered the VA to remedy its unlawful regulation by reimbursing veterans for all of their past and future out-of-pocket emergency medical expenses not covered by the veteran’s private insurance other than copayments.
On January 24, 2020, the CAVC unanimously denied the VA’s motion to stay VA’s obligation to implement the CAVC’s decision in Wolfe v. Wilkie requiring VA to reimburse veterans for emergency medical expenses incurred at non-VA facilities that are not covered by the veteran’s private insurance. The VA’s motion sought to allow it to withhold all reimbursement payments from veterans until the VA appeals the CAVC’s decision to a higher court and obtains a decision from that court -- a period that would llikely to take at least one year.
Background Information on the Wolfe and Boerschinger Lawsuits
01/24/2020- Veterans Court Rejects VA’s Motion to Postpone Reimbursing Veterans for Emergency Medical Expenses
09/10/2019 Federal Court Strikes Down VA Regulation Denying Veterans Reimbursement of Emergency Medical Expense
04/01/2019 - In Response to NVLSP’s Class Action Lawsuit, VA Admits It Misled Tens of Thousands of Veterans
1/02/2019 - NVLSP Files Class Action Lawsuit Accusing VA of Disseminating False Information To Veterans
10/30/18 - The 8-Year Battle Continues: NVLSP Again Sues VA Over Continued Refusal To Comply With 2010 Statute
Background Information on the Staab Decision
01/17/2018 – VA Finalizes Rule Requiring Payment for Non-VA Emergency Claims Under NVLSP Court Victory in Staab
11/29/2017 – Video: Staab v. Shulkin – A Pivotal Case for Veterans
06/16/2017 – NVLSP Wins $2 Billion in Medical Care Benefits for Hundreds of Thousands of Veterans, Applauds VA Secretary’s Decision to Voluntarily Withdraw VA Appeal in Staab v. Shulkin
04/11/2016 – Court Rules That VA Has Shortchanged Veterans Since 2009 By Refusing to Reimburse Them for Emergency Medical Expenses Not Covered by Insurance
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 to www.nvlsp.org.