Monday, September 30, 2019

Veteran: Comment on the Wolfe vs VA case

Comment on the Wolfe versus VA case

Wolfe & Boerschinger v. Wilkie, No.18-6091(DATED: September 9, 2019 PER CURIAM); 38 C.F.R. § 17.1005(a)(5) is invalid because it is contrary to 38 U.S.C. §1725; reimbursement of emergency medical care at non-VA facilities

References below.

The Court's opinion and the process leave me with big questions and that the VA can be ordered in a direction that will fix the problem.

The Court and NVLSP have the entire basis for the case wrong. The estimated cost does appear more sensational than factual. Unless the basis changes the DVA will not change its business rules. 

The Law says:

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 wording is exact. 

Without the statue, the veteran can claim the money from insurance belongs to veteran and invoice for reimbursement.   The statute prohibits double-dipping where insurance and the VA pay for the same medical expense. The VA does not have a regulation to prevent double-dipping.

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 fictitious.  The VA abuses the term reimbursement to include payment to the provider. 

Furthermore, the VA inappropriately uses the regulation to demand an explanation of benefits confidential business information from the patient and the provider. The Law defines third party to be the insurance company (patient, provider, insurer).  The VA switched the third party to mean (VA, veteran, provider).

The correct wording for CFR 17.1005 (5) is “The VA will not reimburse the veteran for a copay or coinsurance money paid under a health plan contractor.” ( A health plan contract can payout to either the medical services provider or to the insured.)  Or better: CFR 17.1005 (5) should be “The VA will not reimburse the veteran for an episode of care payments made to the provider or the veteran for episode’s medical expenses. “

Unless the regulation is like the above, the veteran can double-dip on payments made to the provider by asking to be reimbursed for payments made directly to the provider. In the case of medical insurance copayments, the title for the money belongs to the veteran patient. Medical insurance payment is exactly the same as if the veteran patient wrote at check to the provider.

Copay and coinsurance are terms specific to pay for a medical expense where the insurer pays some and the insured pays some. The definition of a medical expense is a fee for a medical service. 

The VA has no legal right to demand an episode of care explanation of benefits from the provider, the insurance company, or the patient. The patient, insurance, and provider have a private contract. By demanding the EOB and refusing to pay benefit is bureaucratic extortion. The Law requires the provider to reconcile all payout before invoicing the VA. That is all the information the VA needs.

The VA’s limit on medical expense payout is the maximum allowable amount (MAA) which is the same as the Medicare fee. Once the MAA is paid by any party, the Law exhausts further charges for the medical expense. I suspect the large cost estimate is calculated for the unpaid insurance payout rather than the MAA. 

If the VA suspects the provider being dishonest about reconciling payouts, the provider commits fraud in which case the problem belongs to legal and not a reason to deny veteran’s benefits.

The Court and the DVA treat reimbursement as a gratuitous act and not a formal business process. 38 USC 1725 instructs the VA to either pay the provider or reimburse the veteran. This statute defines the existence of 3 contracts and to make a payment the contracts require an invoice and a payment. Contracts: 
  • Veteran & VA, 
  • VA and Provider, 
  • Veteran & Provider. 
Elsewhere in 1725, 2 other contracts exist. 
  • Provider and The Veteran Patient, 
  • Veteran Patient (insured) & The Patient Medical Insurance company (insurer)
  • Note: no contract exists between the VA and the insurance company. A reimbursement requires an invoice before payment.  Unless the veteran files a Form 10-7078 (or equal)   invoice, the VA cannot make rules that bypass the Form.
Statute 38 USC 1725 (c) (4) (D) states “The Secretary may not reimburse …” Without a reimbursement invoice, the rest of the statue is void.  The VA regulation completely ignores the Law's reimbursement requirement.

Contract law and privacy law supersede Title 38.

To help understand Title 38, these are some of the first principles:
  • Title 38 is Congress’s life grant of benefits to all veterans for the veteran’s national service.
  • The Department of Veteran Affairs is Congress’s agent to pay veteran’s benefit expenses from the Federal Budget.
  • Title 38 defines the veteran’s benefits and the business rules the DVA uses for operation and payout.
  • A veteran’s benefit is a fee for a Title 38 service.
  • By Congress’s grant, the veteran owns the benefit, the DHA has the responsibility to provide services and payout from the Budget.
  • The DVA is not a veteran. The DVA is an agent of Congress, and cannot own benefits.
  • The veteran owns all benefits.
  • To receive Federal Budget benefits, the veteran must register with the DVA.
  • The DVA likes to market itself as a benefits organization. While pleasant-sounding, the words misspeak its authority and responsibility.
  •  Section 38 USC 1725 The Law instructs the Secretary to either pay-the-provider or reimburse-the-veteran.
  • Pay-the-provider and reimburse-the-veteran is a formal business process of invoice and payment.
  • Contract law and privacy law are the frameworks of business rules.
If NVLSP represented me with the Court of Veteran's Appeals, this is a list of conduct I would not expect the attorney to allow. 
  • NVLSP allowed the VA to use the terms copayment, coinsurance, and deductibles in defense arguments.  These terms copay and coinsurance mean two payers, the insurer copay and the insured copay.  The VA created a regulation for the insured copay; however, the Law applies only to insurer copay.   The term deductible is not in 38 USC 1725.   If the DVA does follow the Court, the veteran can double-dip on other payments made directly to the provider. It is simple, the medical insurance payout is the property of the insured. When insurance pays a provider, the insurer acts as a broker for the insured to pay the bill for the insured.
  • NVLSP allowed the VA to use the explanation of benefits (EOB) information to deny the veteran benefits. In a community provider episode of care, the EOB is private information, and the VA has no legal right or authority to demand.
  • NVLSP allowed the VA to claim itself as the first party in separate contracts. The Law defines the veteran as the first party.
  • NVLSP allowed the VA to substitute medical expense (fees for a medical service)  for insurance expense (cost of insurance)
  • NVLP allowed the VA to limit the meaning of copay and coinsurance to mean the patient's share rather than the insurer's share.
  • The CAVA, NVLSP,  and the VA tend to use the term reimbursement as a gratuitous act and not as a formal business process.

United States Court of Appeals for Veterans Claims Docket Case Number:18-6091


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