NewsChannel 7 Investigates | VA denying nearly 1 out of every 3 veterans’ emergency claims | Complete Series

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(WSAW) -- Fearing the Department of Veterans Affairs would deny his claim, a disabled Pittsville Gulf War veteran avoided going to his nearest emergency department during a recent medical scare.

“My pillow was covered in blood,” said Jerry Zehrung, who has lived with a constant infection risk since having his hip resurfaced eight years ago.

“My wife looks at me and she's panicked,” Zehrung said. “Her first instinct was, 'let’s get you to the emergency room' and my first instinct was 'who's going to pay the bill?'”

NewsChannel 7 Investigates discovered a VA executive admitted there are a large number of denied veterans’ emergency treatment claims.

In February, VA Assistant Deputy Undersecretary for Health for Community Care, Dr. Baligh Yahia testified before a Veterans' Affairs subcommittee. Yahia told members of Congress that during the 2014 budget year approximately 30 percent of the 2.9 million emergency claims filed with the VA were denied.

Of those 870,000 denied claims, 7,000 came from Wisconsin veterans, according to a VA representative who confirmed the number with NewsChannel 7 Investigates.

Yahia broke down the denied claims during his February testimony. He said:
• 89,000 were late
• another 98,000 were not emergencies
• 140,000 were denied because a VA facility was determined to have been available
• 320,000 more claims were denied because the veteran was determined to have other health insurance that should have paid for the care.

In total, about one-out-of-every-three veterans’ emergency claims were denied during the 2014 budget year.

“Many of these denials are the result of inconsistent application of the “prudent layperson” standard from claim to claim and confusion among Veterans about when they are eligible to receive emergency treatment through community care,” Yahia testified on Feb 2, 2016.

While Zehrung did not know the exact numbers, he knew many of his fellow veterans had seen their emergency claims denied.

Fearing the possible billing risk, the morning of his medical scare Zehrung did not travel from his Pittsville home to the nearest emergency department about 15 miles away in Wisconsin Rapids. The closest VA approved ER Is more than 120 miles away in Madison.

Because he knew the bill would at least be covered more than 40 miles away at the Tomah VA's urgent care, Zehrung's wife drove him more than twice as far as the closest emergency care.

"I've heard too many horror stories by too many people and the stress that it creates for a family-- no veteran should face," Zehrung said. “The prospect of putting my family in that situation is untenable.”

ONE VETERAN'S NATIONAL APPEAL

One of those horror stories is retired Minnesota Airforce veteran Richard Staab. From 1952 to 1956 the now 84-year-old was a ground radio operator.

After a heart attack and a stroke left Staab unable to communicate, court documents tell the story of how the veteran ended up at several non-VA medical facilities between 2010-2011. Eventually, Stabb needed open heart surgery.

However, when it came time to pay $48,000 in bills, the VA countered that Staab should have received its permission before going to the non-VA facilities, and because he had Medicare, the VA took the position it did not have to pay.

“It depleted his life savings,” one of Staab’s lawyers Jacqueline Schuh said. “And he's on a very low fixed income, so he literally has nothing else."

Three appeals and nearly six years after Staab suffered his heart attack, the United States Court of Appeals for Veterans Claims agreed to hear his case.

In April, the three judge panel sided with the veteran, ruling the VA had violated federal law since 2009, by using an out of date regulation for years to deny veteran's emergency claims.

Whether or not Staab had Medicare, the judges said the VA should have paid his bills and would have to now have to reimburse Staab.

“Was very elated, as we both were, to see what the initial outcome was of the appeal," Staab said.

That victory would be short lived. This month, Staab learned the VA had appealed the decision to the United States Court of Appeals.

Schuh feels the VA’s repeated appeals are because the Staab case would set a precedent that could cost the VA and force it to repay a massive amount of denied claims.

During Yihia’s congressional testimony, the VA executive said the nearly one-out-of-three veterans’ emergency care claims denied during the 2014 budget year totaled $2.6 billion.

“I don’t think it’s his particular case so much as it is the ramifications of how many people will be opening up their cases from 2010 to the present to seek that reimbursement,” Schuh said.

"If the decision is affirmed, and it's not appealed further, and they pay him out, the question is going to be whether he is alive to receive the payment,” Schuh added. “If he's not alive to receive the payment there's no benefit to the family after either."

COLLECTING ON VETERANS UNPAID BILLS

A former collection agent, named Susan, says she was surprised at first, and then saddened to discover much of her job was spent calling veterans and their loved ones about unpaid bills.

"Most of the time it was the VA denying their medical benefits,” Susan said. “They'd take them in and assume the VA was going to take care of that and they come to find out the VA has stipulations. There's a 72 hour rule. You don't contact the VA within 72 hours they can deny that claim.”

“It was very sad,” Susan said. “Because my husband is a veteran.”

Susan is Susan Zehrung, Jerry Zehrung's wife. She found herself in a similar situation to all those veterans and loved ones she spent years on the phone with, the morning she thought her husband was in the middle of a medical emergency.

"And he was more concerned about wanting to call the VA, then wanting to go to an emergency room closer,” Susan Zehrung said. “And he seemed to get the run around. Speaking to the person on the phone she said, 'I'm not a doctor. I can't tell you not to go to the emergency room.'”

"To me, America should be taking care of their veterans. They're the ones who will run into any fire fight for their country,” Susan added. “And to not have the American people and the government backing them on their health care costs is ludicrous.”

BUYING A SAFETY PLAN

Before his medical scare, Jerry Zehrung thought if an emergency ever happened he would buy an extra insurance plan.

While that is allowed under the federal health care law, VA care meets the requirement for having health insurance. That means veterans are not eligible for assistance to lower a second plan's cost.

"All I'm asking for is every vet in our country get the same rights, and get treated the same way as every other American,” Zehrung said.

In late June, NewsChannel 7 Investigates was there as Zehrung took that concern to staff from the offices of Sen. Tammy Baldwin, D-Wisconsin, Sen. Ron Johnson, R-Wisconsin and Rep. Sean Duffy, R-Wisconsin.

During the meeting Zehrung was presented with a possible law change. Known as the Improving Veterans Access to Care in the Community Act, which Baldwin is sponsoring, Baldwin's representative told him the legislation includes creating a cost-sharing system for emergency care.

However, Zehrung said the bill does not address his concern.

"If you obtain health insurance from the Veterans Administration, the way the legislation reads now, you cannot purchase a health insurance plan for yourself,” Zehrung said. “And I don't quite understand that."

Like many veterans, Zehrung is confused by a system that cannot guarantee those who served a grateful nation will have their emergency bills paid.

"Unfortunately sometimes the definition of thanks and grateful get lost in translation," Zehrung said

In his case he is grateful his bleeding ear was not an emergency. But with gratitude comes the daunting realization: if he had gone to his closest hospital, today he would likely be looking at have to pay the bill out of his own pocket.

"How often do you think these veterans are suffering life threatening emergencies?” Zehrung asked. “And their first thought isn't I need help. It’s how is the bill going to be paid."

Media representatives for Baldwin and Johnson did not return NewsChannel 7 Investigates request for comment.

In a statement to NewsChannel 7 Investigates, Duffy said, “"The VA is a broken system, but the answer is not to expose our veterans to the disaster that is Obamacare. We need a VA that actually follows through on that promise. That's why I'm fighting to reform the VA and hold its leaders accountable."

THE VA RESPONSE

In a response to NewsChannel 7 Investigates questions, VA spokesperson Sabrina Owen released the following responses to our questions on behalf of VA representatives:

Question 1: According to Dr. Yehia’s February 2016 testimony, in FY2014 30% of the 2.9 million emergency treatment claims filed with VA were denied. Of those 30 percent denied claims, what percentage and number of Veterans represent the state of Wisconsin?

Response 1: Of the 30% emergency treatment claims filed that were VA denied in FY14, approximately 3% were from the state of Wisconsin. There were approximately 7,000 unique Veterans within this 3% population.

Question 2: Why won’t the VA simply pay for Veterans Emergency Care at non-VA facilities?

Response 2: VA’s authority to reimburse for unauthorized emergency care furnished by non-VA facilities is established in statute. Even if the Staab decision is upheld, the statutory authority does not set forth a payment methodology or payment limitations necessary for VA to implement the decision. Therefore, VA must follow legal procedures to implement regulations that would allow it to process payments for claims impacted by Staab, i.e. claims for reimbursement where a Veteran has coverage under a health-plan contract. Further, the case is in active litigation and may be appealed to the Federal Circuit, which could overturn the Staab decision.

Question 3: Does the VA have an official response to the Richard Staab case?

Response 3: VA’s position is set forth in its filings before the Veterans Court.

Request 4: Reporter would like clarification from the VA on if his understanding of the Richard Staab case is accurate – please provide a statement summarizing the VA response. Here is the reporter’s summary of understanding:“ In April the judges sided with Mr. Staab, saying the VA failed to revise their emergency medical expense reimbursement regulations, according to a 2009 congressional mandate. It now appears, the VA is appealing this decision. For quick background the VA would not pay Mr. Staab’s $48,000 bill for emergency care when he had a heart attack/stroke and ended up having open heart surgery because he did not receive the VA’s pre-approval for this non-VA hospital care while Mr. Staab was incapacitated.”

Response 4: VA denied Mr. Staab’s claims for reimbursement under 38 U.S.C. § 1725(b)(3)(B) and 38 C.F.R. §17.1002(f) because he was covered by Medicare. Because this is an active litigation matter, we decline to state more at this time.

Question 5: Why is the VA fighting the ruling of the Richard Staab case?

Response 5: VA’s position is set forth in its filings before the Veterans Court. Because this is an active litigation matter, we decline to state more at this time.

Question 6: Also a point of clarification – we have heard from veterans who say when they call the VA they’re told to go to the ER – only to be told later the VA determined their emergency care bill would not be reimbursed. Who is the “they” making the reimbursement decision? What is the official name of that position?

Response 7: When a Veteran calls, he/she may receive a recorded message which advises him/her to call 911 or report the closest emergency if he/she is experiencing a life threatening emergency. This statement is to ensure that the Veteran takes the necessary steps to receive emergency care. It is also the same message found in the community when a patient receives a recorded line at his/her physician’s office. Such a message does not commit VHA to payment of any associated claim. VHA Office of Community Care must still make an eligibility determination for emergent care based on current regulatory authorities.

Because of the ongoing litigation, VA representatives declined to comment to NewsChannel 7 Investigates on their appeal of the Staab Case, other than citing what is detailed in their appeal.