Emergency Medical Care Reimbursements – Wolfe v. Wilkie and Kimmel v. Secretary of Veterans Affairs
Updated: December 2022
On October 25, 2022, the U.S. Court of Appeals for the Federal Circuit ruled that VA’s 2018 reimbursement regulation violates 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. Under the court’s order in the case, called Kimmel v. Secretary of Veterans Affairs, the VA must reimburse veterans for coinsurance costs associated with emergency medical care. The court also required VA to issue a new regulation reflecting the court’s decision within 120 days, or February 22, 2023.
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If you received emergency medical care at a non-VA facility and you or the non-VA facility submitted a reimbursement claim to VA between January 1, 2016, and December 31, 2020, but have not received a decision from VA on your claim
Or, if you received a notice from VA under Wolfe v. Wilkie that VA was readjudicating your claim for reimbursement and VA has not decided your claim after that notice, Please fill out this questionnaire so NVLSP can determine if we can assist you. |
The Federal Circuit’s October 2022 decision in Kimmel v. Secretary of Veterans Affairs was the latest in a long line of courts striking down the VA’s rules governing reimbursement of emergency medical expenses.
In 2014, NVLSP appealed to the CAVC on behalf of veteran Richard Staab after the VA declined to reimburse him for any of the $48,000 he incurred for emergency open heart surgery purely because Medicare covered part of the emergency care bill. In the CAVC’s 2016 landmark precedential decision in Staab v. Shulkin, it invalidated the VA regulation that prohibited reimbursement for any of the veteran’s emergency medical expenses merely because some, but not all of those expenses, were covered by the veteran’s insurance. The Court held in the Staab case that Congress intended in the ECFA for VA to step in as a “secondary payer” where other health care insurers cover only a portion of the cost of the veteran’s emergency treatment and the regulation violated this statute.
VA then issued a new regulation to replace the rule struck down in Staab. The new regulation, however, still effectively prohibited reimbursement for any emergency medical expenses incurred by a veteran whose costs were partially covered by health insurance. Therefore, in 2018, NVLSP and pro bono counsel at Sidley Austin LLP filed a class action lawsuit in the U.S. Court of Appeals for Veterans Claims (CAVC) on behalf of veteran Amanda Wolfe, and another related class action in 2019 on behalf of Peter E. Boerschinger. These petitions asked the court to overturn the thousands of VA decisions issued since January 9, 2018, that denied Ms. Wolfe and tens of thousands of other veterans reimbursement of the emergency medical expenses they incurred in 2018 or before in a non-VA facility.
In September 2019, the CAVC agreed that the regulation violated the law and ordered VA to reimburse veterans for emergency medical expenses, other than co-pays, they incur at non-VA facilities that are not covered by the veteran’s private insurance. Under the court’s orders, and after additional motions from class counsel to require VA to comply with the CAVC decision, the VA began readjudicating over 74,000 claims under the CAVC’s decision. However, VA also appealed the CAVC’s decision.
In March 2022, the Federal Circuit held that—although the law required VA to reimburse coinsurance expenses and therefore the regulation was unlawful—the procedure by which Ms. Wolfe had filed her case was improper. The court therefore dismissed the case but noted that Ms. Wolfe or others could file a petition directly in the Federal Circuit to overturn the regulation.
In Kimmel v. Secretary of Veterans Affairs, Ms. Wolfe and Joshua Kimmel filed just that petition, again with the pro bono assistance of NVLSP and Sidley Austin LLP. The Federal Circuit’s October 25, 2022 order granted petitioners’ motion for summary disposition based on the court’s decision in Wolfe, and ordered VA both to immediately comply with the law and reimburse coinsurance expenses and to issue a new regulation on an expedited basis.
Based on the VA’s past estimates, compliance with this decision will require VA to pay over a billion dollars in reimbursements to hundreds of thousands of veterans with reimbursement claims filed or pending during the period from 2016-2025.
Background Documents on Kimmel v. Sec’y of VA and Wolfe and Boerschinger v. Wilkie
10/25/2022 – Federal Court Invalidates Regulation Prohibiting VA From Reimbursing Veterans For Certain Emergency Medical Expenses at Non-VA Facilities Not Covered By Veteran’s Health Insurance
05/05/2022 – Petitioners’ Motion for Summary Affirmance
04/29/2022 – Petition filed in Kimmel v. Wilkie
03/17/2022 – Federal Circuit Decision in Wolfe v. Wilkie
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
01/02/2019 – NVLSP Files Class Action Lawsuit Accusing VA of Disseminating False Information To Veterans
10/30/2018 – The 8-Year Battle Continues: NVLSP Again Sues VA Over Continued Refusal To Comply With 2010 Statute
10/30/2018 – Wolfe v. Wilkie Petition for Class Relief