Behind the Mission Act and non-VA provider care is a regulation lie regarding payout at a non-VA facility. for emergency treatment.
Statute 38 USC 1725 (c) (4) (D) states “The Secretary may not reimburse a veteran under this section for any copayment or similar payment that the veteran owes the third party or for which the veteran is responsible under a health-plan contract."
The statute means: When the veteran’s insurance company pays a provider the insurance’s share of copayment, the VA will not pay back a veteran for the money insurance paid to a provider. That is all it means, that is all it can mean.
The VA created CFR 17.1005 (5) "VA will not reimburse a veteran under this section for any copayment, deductible, coinsurance, or similar payment that the veteran owes the third party or is obligated to pay under a health-plan contract.”
The statute is correct, the regulation is a lie. A follow-the-money analysis reveals the truth.
With any insurance, the insured contracts with insurance company to reduce the insured payout on claims against the insured. When insurance pays out, the money belongs to the insured. Without the statute, the veteran can claim the insurance share of the copay is the veteran's money and the veteran can invoice for reimbursement. The statute is specific, third party (veteran, provider, insurance) means the insurance company and the veteran is responsible for the insurance contract. That responsibility means the veteran has title to the payout.
The regulation twisted the statute to mean the insured copay and the provider as the 3rd party. VA policy uses a self-centric relationship with other parties by claiming to be the 1st party (VA, vet, provider). The Law defines third-party as an insurance company. The third-party definition includes "A person or entity obligated to provide or to pay the expenses of, health services under a health-plan contract." The expense of insurance is the premium cost.
Title38 grants benefits to veterans and charge the VA as an agent of Congress to use the Federal Budget to pay the costs for the benefit. The veteran owns the benefit and in relations with VA the veteran is always the 1st party. Also, reimbursement requires an invoice, the submitter is the 1st party. The VA can only be the 2nd party which disconnects the VA from other patient private contracts.
Basically, the statute prohibits double-dipping by the veteran claiming that any insurance payout is the veteran's money. The veteran cannot file for reimbursement using the insurance copay as the veteran's money.
38 USC 1725 first statement is for the VA to either pay-the-provider or reimburse-the-veteran. If the veteran does not invoice for reimbursement, the rest of the statue cannot apply. The VA regulation contrived a business condition that cannot occur for either pay-the-provider or reimburse-the-veteran. If for some reason the Veteran did pay the provider, the most the VA will payback is the maximum allowable amount (MAA) which is the same as the Medicare fee.
The current regulations state that a veteran, under adverse conditions and eligibility requirements, has emergency care treatment at a non-VA facility has two possibilities for payment of the medical expense. If the veteran has no private insurance, the VA pays the maximum allowable amount. If the veteran has private insurance and the insurance deductible is not met or the medical expense has a patient copay, the VA claims that by law the VA cannot pay the copay or deductible.
Title 38 uses the term deductible only when the VA uses private insurance for cost recovery. The regulation contrived a false fact about the law.
The regulation did not change with the Mission Act.
The VA demands the insurance’s explanation of benefit from the provider or the VA will not pay. This is extortion. The relationship between the patient, provider and insurance company is a private contract. The law does require the provider to reconcile other payouts before invoicing the VA. The Law does not grant the VA authority to demand private information.
When the veteran has authorized medical treatment at a non-VA provider, the provider is an agent of the VA. As an agent, the VA's payout follows 38 USC 1729 for private insurance at a VA facility. The VA has no provision that defines non-VA ER providers to be an agent. When the veteran follows VA protocols and has ER treatment, that episode of care should be an expressed agency and 1729 payout applies not 1725. However, 1725 does apply as the definition for the agency.
From a business analysis perspective, Title 38 is a set of business rules that assign the VA to be Congress’s agent to use money from the Federal Budget to pay the costs of the benefits. As a business necessity, the VA requires veterans to register with the VA to receive the payout which includes service and distributions. The veteran is a client of the VA, not a member.
Headline: Title 38 grants lifetime medical treatment for all veterans. The grant provides an out of pocket limitations on medical expenses. A medical expense is a medical service for a fee. The limitation is the maximum allowable amount (MAA) and the same as the Medicare fee. Payment of the MAA exhausts other fees for the same service. If the veteran registers with the VA, the VA pays the MAA. If a veteran does not register with the most any provider can charge is the MAA. If the veteran pays the MAA, the payment exhausts other fees service in an episode of care service the same as if the VA paid.
The Goodwill Grant: If a veteran has a private health plan contract for medical insurance, the Goodwill Grant is the veteran's volunteered permission of the veteran's private health insurance for VA's direct cost recovery at VA facilities. 38 U.S. Code § 1729 - Recovery by the United States of the cost of certain care and services.
The Grant only applies to VA facilities. Because permission to use the Grant is voluntary, permission to use the Grant can be withdrawn at any time for any cause. The veteran can withdraw the Grant for the non-VA facility episode of care, the VA cannot use the Grant information with the provider. From the VA perspective, the veteran would not have private insurance. The regulation cannot apply.
Title 38 as a set of business rules allows a follow-the-money analysis. Contract law and primary law supersede the title and under 1725 the business requires at least 5 contracts
- VA & veteran,
- provider & VA,
- patient & provider,
- patient & insurance,
- insurance & provider.
When the episode of care is at a non-VA facility, the VA does not have a contract with private insurance. A simple contract is between two principals. A third-party may affect the transaction between the principals, but the third-party is not a contract principal.
The Law does not give the VA legal permission to demand a third-party explanation of benefits. VA Form 10-7078 requires medical expense information. By Law, the provider or the veteran, in the case of reimbursement, must reconcile other payouts before invoicing the VA.
The MAA bureaucratic negligence is the VA not providing the provider or the veteran an explanation of benefits as soon as the provider submits the invoice. Instead, the VA uses the Goodwill Grant to determine the status of the private insurance payouts. If the insurance deductible is not meet or the policy has copays, the VA because of the regulation, immediately denies payment to the provider. Without the EOB neither the provider nor the veteran can establish financial obligations.
VA Form 10-7078 does not include a data field for the money total the provider receives from other payees. The data is legally necessary to calculate the MAA. By Law, if the amount paid by other payees (POP) exceed the MAA, the veteran owes nothing, and the VA has no payout. Because the form does not include POP data, the VA breaks privacy laws by demanding the insurance EOB.
Fix the form, fix the MAA standing.
Remember regulations are not the Law.
I am bewildered to not find a challenge on CFR 17.1005 (5) based on simple English alone not to be compliant with the Law. Without a reimbursement invoice, the rest of the statute is meaningless.
38 CFR § 17.1005 - Payment limitations.