William H. Heino v. Eric K. Shinseki

24 Vet. App. 367, 2011 U.S. Vet. App. LEXIS 777, 2011 WL 1345062
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 11, 2011
Docket09-0112
StatusPublished
Cited by5 cases

This text of 24 Vet. App. 367 (William H. Heino v. Eric K. Shinseki) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
William H. Heino v. Eric K. Shinseki, 24 Vet. App. 367, 2011 U.S. Vet. App. LEXIS 777, 2011 WL 1345062 (Cal. 2011).

Opinions

MOORMAN, Judge:

The pro se appellant, veteran William H. Heino, appeals a December 24, 2008, decision of the Board of Veterans’ Appeals (Board) that determined that he is obligated to pay VA a copayment for each 30-day or less supply of medication provided by VA on an outpatient basis in an amount established under 38 C.F.R. § 17.110. The [368]*368appellant filed an informal brief, and the Secretary filed a brief. Panel consideration is required to determine whether 38 U.S.C. § 1722A, the statute under which the Secretary is required to charge a veteran a copayment for medication (1) allows the Secretary to set a copayment amount that requires veterans to pay the same copayment amount for “each 30-day supply of medication” but results in some veterans receiving a supply with fewer pills; and (2) whether 38 C.F.R § 17.110, the regulation implementing section 1722, interprets the statute’s language regarding “the cost to the Secretary” in a manner consistent with the statute. This appeal is timely, and this Court has jurisdiction under 38 U.S.C. §§ 7252(a) and 7266(a). For the following reasons, the Court will affirm the Board’s December 2008 decision.

I. BACKGROUND

The facts are not in dispute. Mr. Heino has an ongoing prescription for Atenolol pills. He is prescribed a 12.5 mg daily dose. The lowest strength available for prescription is dosed in 25 mg tablet form. Because the medication is not dispensed in a 12.5 mg tablet, his physician instructed him to split a 25 mg tablet in half to achieve the proper daily dosage. See Record (R.) at 118, 121. VA required Mr. Heino to pay a $7 copayment for a 30-day prescription supply of 15 tablets. See R. at 118. Mr. Heino complained that he was being overcharged, in light of the fact that he is required to split his pills, and requested that his copayment charge of $7 be reduced because the copayment amount exceeds the cost to the Secretary to dispense his medication. See R. at 118-19.1 In a letter dated February 11, 2005, the VA Office of Regional Counsel determined that the copayment charge of $7 for Mr. Heino’s 30-day supply of medication was correct according to applicable law and regulation. R. at 118-19 (citing 38 U.S.C. § 1722A and 38 C.F.R. § 17.110). Mr. Heino filed a Notice of Disagreement. R. at 104-17. In March 2005, the director of a VA medical center issued a Statement of the Case (SOC) on the issue of the interpretation of section 1722A, determining that Mr. Heino’s copayment for medication should not be decreased to less than $7. R. at 91-95. The SOC noted that the decision was based on the regulation implementing section 1722A, 38 C.F.R. § 17.110, and stated that for the period from February 4, 2002, through December 31, 2002, the copayment amount is $7. R. at 95.

In the December 24, 2008, decision on appeal, the Board discussed the applicable law and regulations and concluded that the appellant was required to pay the $7 co-payment set forth in the regulation. Supplemental (Suppl.) R. at 7A-9A.2 The Board found that the Secretary’s “cost of [369]*369filling [Mr. Heino’s] 30-day prescription exceeds the $7 eo[]payment established under 38 C.F.R. § 17.110,” and that, as a matter of law, he was obligated to pay VA the copayment for each 30-day supply of medication provided by VA on an outpatient basis. Id. at 9A.

II. ANALYSIS

A. Parties’ Contentions

On appeal, the appellant essentially argues that he is being charged more than other veterans simply because he must split his pills: While he must pay $7 for 15 tablets for a 30-day supply, other veterans are charged only $7 for 30, 60, or 90 tablets for their 30-day supply of the same pills. Although he argues that he is being required to pay more for his pills because he is required to split them, it appears that his argument is that his copayment cost for 30 pills ($14) is more than the copayment cost of other veterans ($7) who receive 30 pills in their 30-day supply. In this regard, he maintains that the Secretary is violating 38 U.S.C. § 1722A(a)(2) because the Secretary requires that he pay a copayment amount “in excess of the cost to the Secretary” in dispensing the medication. See Appellant’s Informal Brief (Br.) at 2. He asserts that his “[s]plit pill supplies at the time of dispensing, are the same, and have the same actual cost as all other pill supplies.” Id.

The Secretary argues that 38 U.S.C. § 1722A “clearly requires a co[]payment for ‘each 30-day supply of medication’ ” and the supply is “not based upon the number of pills prescribed during the 30 day period of time.” Secretary’s Br. at 9-10. Relying on the regulatory history of 38 C.F.R. § 17.110, which implements the statute, the Secretary argues that the manner in which VA determines the co-payment is reasonable. Id. at 10-11. The Secretary also reasons that the portion of the regulation that increases the medication copayment from $2 per prescription to $7 per prescription is justified by the administrative costs associated with dispensing medication and not solely the cost of the medication itself.

B. Applicable Law and Regulation

Title 38 of the U.S.Code, section 1722A provides, in pertinent part:

(a)(1) Subject to paragraph (2), the Secretary shall require a veteran to pay the United States $2 for each 30-day supply of medication furnished such veteran under this chapter on an outpatient basis for treatment of a non-service-connected disability or condition. If the amount supplied is less than a 30-day supply, the amount of the charge may not be reduced.
(2) The Secretary may not require a veteran to pay an amount in excess of the cost to the Secretary for medication described in paragraph (1).
(b) The Secretary, pursuant to regulations which the Secretary shall prescribe, may—
(1) increase the copayment amount in effect under subsection (a); and
(2) establish a maximum monthly and a maximum annual pharmaceutical copayment amount under subsection (a) for veterans who have multiple outpatient prescriptions.

38 U.S.C.

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Related

Heino v. Dept. Of Veterans Affairs
683 F.3d 1372 (Federal Circuit, 2012)

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Bluebook (online)
24 Vet. App. 367, 2011 U.S. Vet. App. LEXIS 777, 2011 WL 1345062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-h-heino-v-eric-k-shinseki-cavc-2011.