Articles & Updates

Congressional Grant of Authority to VA May Lead to Trouble for Employers and Insurers

by James Kennedy and Samuel Newman

On September 28, 2016, The US Senate passed a continuing resolution (CR), which included a number of permanent provisions. Among these provisions is Section 211 which addresses the issue of the Veterans Administration’s (VA) payment of medical services for non-service-connected disabilities. The CR will now require a reporting of “accurate third-party reimbursement information”. Furthermore, the CR provides specific new authority for the VA to recover reasonable charges for such services from any person who does not make the required disclosures. It would seem that such legislation could serve to broaden the VA’s authority with respect to shifting medical costs to other disability and insurance plans, including of course, workers’ compensation.

On its face, the CR seems directed only towards requiring the veteran to fully disclose their other sources of medical coverage or responsibility at the risk of having to reimburse the VA for the cost of treatment which should have been covered by some other payer. Mindful of the nightmare which has been created by the aggressive enforcement of the Medicare Secondary Payer Act which began in 2001, our concern is the possibility that Section 211 will give the VA authority to determine that other forms of coverage are primary and the VA’s treatment responsibility secondary. Specifically, in a situation where the cost of medical care stems from dual causes – one which is service-related, while one isn’t – that the VA would be able to shift responsibility for treatment.

The reporting requirement of this legislation could also potentially lead to other consequences. First, it is unclear whether the duty to report is extended to those responsible for workers’ compensation plans, in addition to the injured individual. Secondly, the VA’s authority with respect to these requirements is also unclear; as it is possible that the VA will now have access to CMS Section 111 reports.

This new federal authority seems to – somewhat ambiguously – enlarge the VA’s ability to shift responsibility for medical services. Therefore, it will be important to monitor administrative interpretations as well as any proposed rules released by the VA moving forward.

The ultimate questions then are: what will the VA do with the information that the CU is compelling the VA’s patients to provide; and are we headed towards another bureaucratic nightmare akin to Medicare compliance?

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