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Vets Expand Scope Of Landmark Benefits Class Action

By Emma Cueto | January 6, 2019, 8:02 PM EST

When Navy veteran Peter Boerschinger, 79, required emergency treatment for pneumonia and congestive heart failure, he assumed that the U.S. Department of Veterans Affairs would pick up the cost of the emergency room visit that his private insurance didn’t pay for.

But when he filed his claim, he instead received a letter telling him that having private insurance meant the VA wouldn’t cover anything, according to court documents.

On New Year’s Eve, Boerschinger joined a novel class action in the U.S. Court of Appeals for Veterans Claims alleging that the VA is flouting both the letter and the spirit of a federal law designed to ensure that veterans don’t have to pay out of pocket for emergency medical care. His additional claims mark an expansion of an already groundbreaking case.

The suit was originally filed in October by U.S. Coast Guard veteran Amanda Wolfe, whose claim for partial reimbursement after an emergency appendix removal was denied, and is one of the first class actions filed against the VA after a landmark 2018 ruling opened the door to veteran class actions — suits that allow one person to bring a case that could benefit hundreds of unnamed individuals in similar situations.

And with the addition of Boerschinger, the expanded suit is not only taking aim at claim denials, but also at letters that Boerschinger says contain false information about veterans' right to reimbursements.

“By misinforming so many veterans of their eligibility for reimbursement of non-VA medical expenses, the VA is once again failing to live up to its obligations to those who served our country,” Bart Stichman, the executive director of National Veterans Legal Services Program, which represents Boerschinger and Wolfe, said in a statement.

“How VA officials could allow these false boilerplate letters to be sent to tens of thousands of veterans seeking reimbursement lies beyond my comprehension,” Stichman added. “This campaign is a systemic deception by the VA that must be stopped.”

The VA did not immediately respond to a request for comment. The government has not yet responded to the petition.

According to the NVLSP, the VA has estimated that picking up the tab for leftover emergency medical costs for veterans with other insurance would cost the agency $6.5 billion to $10 billion over 10 years, from about 68 million expected claims. The group argued that the VA should not be allowed to shift that expense onto veterans.

And by adding Boerschinger, the suit is broadening its scope and potentially expanding the number of veterans who could benefit. 

Stichman told Law360 that Boerschinger was one of several veterans that contacted the NVLSP with letters they had received about their coverage after the media coverage surrounding Wolfe’s initial petition. 

All the letters, Stichman said, had similar language that in his view was meant to prevent veterans from pursuing potential claims by suggesting they had no right to reimbursement, a position Stichman calls “dead wrong.”

Until recently, veterans had few options in the face of seemingly misguided widespread practices by the VA, but that changed in 2018 due to a case brought by Vietnam War veteran Conley Monk. In considering Monk’s case, which challenged the long delays on disability claim appeals, the U.S. Court of Appeals for Veterans Claims for the first time agreed that it had the authority to hear class actions.

Ultimately, the court declined to allow Monk’s particular proposed class action to move forward, but the ruling made it possible for more suits, including Wolfe and Boerschinger’s, to be filed.

Both Wolfe — who is hoping to represent a class of veterans whose emergency medicine claims were denied — and Boerschinger — who seeks to represent the interests of veterans who received the same type of allegedly misleading letter he did — maintain that the VA’s current regulations violate the Emergency Care Fairness Act of 2010.

The regulations, which state that veterans with private insurance cannot be reimbursed for emergency medical costs not covered by the primary insurer, go against both a plain reading of the statute and a 2014 decision by the CAVC in Staab v. McDonald , according to the revised petition. In that case, the court ruled that the ECFA did require the VA to pick up the bill in such cases, the petition argued.

The petition also argued that the VA’s regulations clearly went against the spirit of the law as well, citing remarks by lawmakers around the time of its passage that suggested the law was intended to ensure veterans weren’t on the hook for paying for emergency medical costs out of pocket.

Overall, Stitchman told Law360, it seemed that the VA was attempting to get out of its obligations under the ECFA.

“They don’t like the statute,” he said. “And it looks like they’re doing whatever they can do to make sure they don’t have to reimburse anybody.”

--Editing by Kelly Duncan.