7 Investigates: Veterans’ emergency care loophole remains as candidates campaign on veterans' records

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PITTSVILLE, Wis. (WSAW) – More than two years after 7 Investigates witnessed a disabled north central Wisconsin veteran tell his congressional representatives about U.S. Department of Veterans Affairs loopholes leaving veterans liable for their own emergency medical bills, some of those same lawmakers are now seeking reelection as the loopholes remain.

In the summer of 2016, disabled Pittsville Gulf War veteran Jerry Zehrung told staff for Sen. Tammy Baldwin, Sen. Ron. Johnson, and Rep. Sean Duffy about VA leaders not guaranteeing emergency bill payments if veterans are treated at their closet non-VA emergency room. And veterans not being able to purchase extra health insurance at a discount, like every other eligible American, in case VA insurance does not cover their emergency bill.

"Everyday this legislation is delayed is another day another veteran has to ask themselves 'should I go the ER or should I wait?" Zehrung said in February.

Zehrung said the loopholes kept him from going to the ER twice over the last couple years, after he dislocated his hip that was injured during his war service, and back in 2016, when he woke up with blood on his pillow.

"I wasn't worried about my heath at that moment. I was worried about is my family's financial future going to be destroyed," Zehrung said in 2016.

What Zehrung did not know is his, and so many other veterans’ stories, are tied into 86-year-old Minnesota Air Force veteran Richard Staab's story.

In 2010, the VA secretary was ordered to cover emergency medical bills veterans are "personally liable" for. However, the VA denied Staab's claim one year later because he went to his closest non-VA ER when a heart attack and stoke almost killed him. In the end, he was left with a $48,000 out-of-pocket bill.

"And for the VA to call that non-emergent, that's just ridiculous," Staab’s lawyer Jacqueline Schuh said in January.

Staab became the face of this loophole when he sued and won his appeal. However, the VA kept appealing until last year.

In January, Schuh thought the legislative fix, now called the ‘Staab Rule,’ meant thousands of veterans could finally be reimbursed for their emergency room bills. Wisconsin lawmakers also told 7 Investigates they hoped veterans would not have future billing problems.

"And so there is a process going forward to pay those bills," former VA Sec. David Shulkin told 7 Investigates in January.

However, today, Schuh said Staab still has not been reimbursed. And another one of Staab's emergency medical bills, from last year, is now tied up in a lawsuit.

As Staab, again, faced denials, this summer a new video showed up on the VA's emergency medical care webpage. There, the VA laid out what emergency bills they will cover under the Staab Rule.

For veterans whose emergencies are related to a disability from their service, the VA now says they will pay, "As long as the VA was not reasonably available."

In the past, however, national VA call centers can end up telling Wisconsin veterans "reasonable" emergency care is located hours away from where they live.

"Emergency room care within the VA system for me is Pittsville to Madison. Pittsville to Madison is over 120 miles away,” Zehrung said in 2016. “So, while I'm having a massive heart attack, I should go to Madison for ER care?"

For veterans, whose emergencies are not related to an injury from their time in service, there is more fine print, including requiring the veteran to have received, “Care at a VA facility in the last 24 months.”

If the veteran also has extra, private health insurance, the VA says it cannot pay "similar payments" to "co-pays, coinsurance, and deductibles."

Sen. Baldwin’s office tells 7 investigates as a result of the Trump Administration’s Veterans Affairs Department’s interpretation of what is “similar payment,” the VA is denying emergency medical reimbursements.

Sen Baldwin told 7 Investigates the VA’s interpretation, "Is severely limiting reimbursements to our veterans."

Sen. Baldwin, and six other senators expressed their frustration about how the VA is interpreting the Staab Rule in a letter sent to VA Office of Regulatory Policy and Management Director Michael Shores back in March.

During her Feb. interview with 7 Investigates, Baldwin hinted another law may eventually be necessary if the Staab Rule did not work like lawmakers feel it should.

"Given the bi-partisan group of senators I'm working with, I think there will be a commitment to introduce legislation," Baldwin said in Feb.

In an anonymous VA Public Affairs statement, department staff reiterated how they are, “Prohibited by law from reimbursing an otherwise eligible Veteran’s copay, cost share or deductible he or she owes to a health-care plan.”

For the VA to make those payments, the staff member said, “Congress would need to amend this section of the law.”

While the statement did not address the use of the VA’s use of the term “similar payments” in denying payments, they did say veterans have to provide, “Documentation that their remaining financial liability for a claim is other than a copay, cost share or deductible.”

7 investigates has learned the MISSION Act, which Baldwin, Duffy and Johnson all supported when it became law in June, might be a potential starting point for fixing future payments.

Part of the current law allows veterans to receive walk-in care at urgent care-type clinics, if that medical facility receives federal funding.

“I am continuing my work with a bipartisan group of Senators to build off of the MISSION Act and move a legislative fix forward that can pass with support from both parties,” Baldwin told 7 Investigates.

Sen. Ron Johnson has not said if he would support that, but his spokesperson Aaren Johnson tells 7 Investigates the senator does support extending emergency room reimbursements back to 2010, when the Emergency Care Fairness Act was signed into law.

Rep. Sean Duffy’s spokesperson Mark Bednar did not offer comment on using the MISSON Act as a framework for an emergency care billing fix, but did say, “The congressman supports providing comprehensive emergency care coverage for veterans when the VA is a secondary payer.”

While Duffy's Democratic opponent Margaret Engebretson said she would support expanding the MISSION Act to including emergency care, the campaign manager for Baldwin’s Republican challenger, state Sen. Leah Vukmir, did not answer that question, only saying she supports more options.

Full Statements

From Sen. Tammy Baldwin: “We need to make sure that when our nation’s veterans need emergency care, they can get the care they need. If they need emergency care they should be able to go to any emergency room to get it, and I believe their VA health care should cover it. I strongly disagree with the way the VA is implementing the Staab rule and unfortunately, the Trump Administration is severely limiting reimbursements to our veterans. Given the fact that the VA refuses to implement the final rule as it should be, I am continuing my work with a bipartisan group of Senators to build off of the MISSION Act and move a legislative fix forward that can pass with support from both parties.”

From Sen. Ron Johnson’s Deputy Press Sec. Aaren Johnson:
- Senator Johnson supported the VA MISSION Act. This law includes language that directs the VA Secretary to improve veteran access to walk-in/urgent care (became law in June).
- Senator Johnson’s staff has reached out to the VA for an update on the status of the January 2018 Staab rule and emergency care coverage for veterans. The senator supports the VA extending its January 2018 rule on emergency room reimbursements to apply to claims that have been filed since the Veterans’ Emergency Care Fairness Act was signed into law in 2010.

From Rep. Sean Duffy’s spokesperson Mark Bednar:
- Congressman Duffy applauds the Trump administration for finally ending the Obama administration’s lawsuit to avoid paying for Veterans’ emergency care. Congressman Duffy and his staff have been in contact with the VA for an update on the Staab rule, including swift implementation of the reimbursement policies that are now fully in place. Congressman Duffy has also reiterated to the VA that he supports further changes to provide reimbursement for Veterans prior to the April 2016 court case.
- The VA’s secondary-payer laws are clear about the VA’s inability to pay things like co-pays, deductibles, and co-insurance for Veterans who hold other health insurance (OHI), and the Staab rule is not related to that.
- The VA already covers emergency room care for Veterans at non-VA facilities if the Veteran does not have other health insurance (OHI), and Congressman Duffy supports that. Congressman Duffy also supports providing comprehensive emergency care coverage for Veterans when the VA is a secondary payer, which is now the law thanks to the new Staab Rule.

From Duffy Democratic Challenger Margaret Engebretson: "The intent of the Congress is clear - individuals with VA care should be reimbursed for expenses incurred when receiving necessary treatment at community emergency rooms. I will join with bipartisan efforts to close any remaining loopholes in VA rules regarding reimbursement for emergency room visits, and I will support legislation to accomplish this goal, if needed."

From State Sen. Leah Vukmir Campaign Manager Jess Ward: “As a military mom, Leah Vukmir knows our veterans deserve high quality emergency care. Right now, there are only two VA emergency departments in Wisconsin, and it is ludicrous to think a veteran from Superior should receive emergency care in Madison or Milwaukee. Unfortunately, too much federal red tape gets in the way, and Leah is committed to ensuring our veterans have more access and more options in emergency situations.”

VA Public Affairs statements
Q: What is your response to Sen. Baldwin’s statement?
A: Based on VA’s interpretation of Title 38 United States Code 1725(c)(4)(D), Reimbursement for Emergency Treatment, VA is prohibited by law from reimbursing an otherwise eligible Veteran’s copay, cost share or deductible he or she owes to a health-care plan. For VA to make such payments, Congress would need to amend this section of the law.

Q: When are veterans eligible for Staab Rule reimbursements?
A: Veterans may receive reimbursement for emergency claims when it is determined that their episode of care meets the eligibility criteria outlined in 38 Code of Federal Regulations 17.1002, Substantive Conditions for Payment or Reimbursement. Additionally, Veterans will need to provide documentation that their remaining financial liability for a claim is other than a copay, cost share or deductible. When this occurs, VA will be able to reimburse as secondary payer to a Veteran’s other health insurance.

Q: How many reimbursement requested under the Staab rule have been received in total since Feb. 1, 2010. Of this number, how many requests have been denied? What is that specific breakdown for the state of Wisconsin.
A: Once the rulemaking published and the pending claims processed, these claims became part of our normal workload. They are not tracked separately.

Q: How many Staab rule reimbursement requests have been received since January of this year? Of this number, how many requests have been denied? What is that specific breakdown for the state of Wisconsin.
A: Once the rulemaking published and the pending claims processed, these claims became part of our normal workload. They are not tracked separately.

Q: Are cases dating back to Feb. 1, 2010, when the Veterans Emergency Care Fairness Act of 2009 was signed into law, eligible for reimbursement? Or are you only reimbursing claims after April 8, 2016, when an appeals court ruled in favor of Richard Staab.
A: Following the court’s decision in the Staab case, VA held claims pending from the date of the decision, April 8, 2016, to the date VA published the interim final regulation, January 9, 2018, when processing for these claims began. All of the held claims were processed earlier this year. At this point, VA will process any claims received and will consider them under the revised authority.