A U.S. Air Force veteran who served in Korea, Staab typically relied on the VA for care. He submitted a claim for the outstanding balance to the St. Cloud VA, expecting to be reimbursed. But his claim was denied. Jacqueline Schuh, a retired JAG attorney now in private practice with Engelmeier & Umanah, agreed to help Mr. Staab with his appeal. She took the case to the U.S. Court of Appeals for Veterans Claims, arguing that the VA regulation used to deny his claim violated the Emergency Care Fairness Act of 2009.
The denial was based upon the internal rule that the VA had been enforcing since 2010, but the internal rule was inconsistent with the law. When Congress passed the Emergency Care Fairness Act, it required the VA Secretary to cover qualified veteran's emergency medical bills for which the veterans were "personally liable." Schuh and NVLSP attorneys argued the law required VA to step in as a "secondary payer" when other health care insurers, such as Medicare, cover only a portion of the cost of a veteran's emergency treatment leaving the veteran "personally liable" for the rest.
In April 2016, the three-judge panel agreed. They ruled in Staab's favor, striking down the regulation the VA had been using to deny veterans emergency medical claims nationwide. The Court's decision rebuked the VA, emphasizing that VA's reimbursement regulation became "wholly inconsistent" with the governing statute when Congress amended it in 2009, but thereafter the VA unlawfully "declined to remedy this inconsistency." The VA appealed that decision and the matter was pending before the U.S. Court of Appeals for the Federal Circuit, when in June 2017, VA Secretary David Shulkin made a surprise announcement.
Shulkin said the VA would "voluntarily withdraw" its appeal of the Staab case. It was a huge victory – not just for Staab, but for veterans nationwide. And it has massive financial ramifications.
VA is now liable to pay 370,000 previously denied veteran's claims, which according to the government agency's own estimates totals more than $2 billion. In June, Secretary Shulkin announced that the VA has drafted a regulation to authorize payment for Staab-related claims, and has sent the regulation to the Office of Management and Budget (OMB). The VA says the draft regulations must clear OMB and be published in the Federal Register before VA can begin reimbursements. VA estimates that this process could take between 9 and 24 months. The NVLSP offers the following advice for veterans who also had their claims inappropriately denied because of the VA's unlawful regulation: