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The Department of Veterans Affairs (VA) plans to revise its regulations concerning payment or reimbursement for emergency treatment for non-service-connected conditions at non-VA facilities to implement the requirements of a recent court decision.

Statement of Need:

This rulemaking will clarify eligibility for payment or reimbursement to include veterans who receive partial payment from a health-plan contract for non-VA emergency treatment and establishes a corresponding reimbursement methodology.

Summary of the Legal Basis:

38 U.S.C. 1725 authorizes VA to reimburse veterans for the reasonable value of emergency treatment for non-service connected conditions furnished in a non-VA facility, if certain criteria are met. One requirement is that the veteran must be personally liable for the emergency treatment. As originally enacted in 1999, the statute provided that a veteran is personally liable if the veteran has no entitlement to care or services under a health-plan contract, and no other contractual or legal recourse against a third party that would, in part or in whole, extinguish such liability to the provider. 38 U.S.C. 1725(b)(3)(B) and (C) (1999).

In Staab v. McDonald, 28 Vet. App. 50 (2016), the U.S. Court of Appeals for Veterans Claims (the Court) reversed a Board of Veterans’ Appeals (the Board) decision denying a claim under section 1725. The Board had applied 17.1002(f) to conclude that partial payment of the emergency treatment by the veteran’s health-plan contract barred VA reimbursement. On appeal, the veteran challenged 17.1002(f) as inconsistent with section 1725. The Court agreed, and in a precedential decision, held invalid and set aside 17.1002(f) and remanded the case.

Alternatives:

This rulemaking is a result of a court order invalidating 38 CFR 17.1002(f).  This rulemaking will amend the pertinent VA regulations to comply with the holding of this Court decision. It will make other amendments that are also needed to ensure consistent application of its authority to reimburse Veterans for emergency treatment in light of the court order.

Anticipated Costs and Benefits:

VA has determined that there are transfers costs associated with this rulemaking.  Total transfer costs are estimated to be from a low estimate of $45.0 million to a high estimate of $97.3 million in FY 2018 and a low estimate of $234.4 million to a high estimate of $517.7 million over a five year period.  This rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 to 3521).

Risks: