Reimbursement for emergency treatment

38 U.S.C. § 1725

• Title: 38 — Veterans' Benefits
• Chapter: SUBCHAPTER III—MISCELLANEOUS PROVISIONS RELATING TO HOSPITAL AND NURSING HOME CARE AND MEDICAL TREATMENT OF VETERANS

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(a) General Authority.—(1) Subject to subsections (c) and (d), the Secretary shall reimburse a veteran described in subsection (b) for the reasonable value of emergency treatment furnished the veteran in a non-Department facility.
(2) In any case in which reimbursement is authorized under subsection (a)(1), the Secretary, in the Secretary's discretion, may, in lieu of reimbursing the veteran, make payment of the reasonable value of the furnished emergency treatment directly—
(A) to a hospital or other health care provider that furnished the treatment; or
(B) to the person or organization that paid for such treatment on behalf of the veteran.
(b) Eligibility.—(1) A veteran referred to in subsection (a)(1) is an individual who is an active Department health-care participant who is personally liable for emergency treatment furnished the veteran in a non-Department facility.
(2) A veteran is an active Department health-care participant if—
(A) the veteran is enrolled in the health care system established under section 1705(a) of this title; and
(B) the veteran received care under this chapter within the 24-month period preceding the furnishing of such emergency treatment.
(3) A veteran is personally liable for emergency treatment furnished the veteran in a non-Department facility if the veteran—
(A) is financially liable to the provider of emergency treatment for that treatment;
(B) has no entitlement to care or services under a health-plan contract (determined, in the case of a health-plan contract as defined in subsection (h)(2)(B) or (h)(2)(C), without regard to any requirement or limitation relating to eligibility for care or services from any department or agency of the United States);
(C) has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider; and
(D) is not eligible for reimbursement for medical care or services under section 1728 of this title.
(c) Limitations on Reimbursement.—(1) The Secretary, in accordance with regulations prescribed by the Secretary, shall—
(A) establish the maximum amount payable under subsection (a);
(B) delineate the circumstances under which such payments may be made, to include such requirements on requesting reimbursement as the Secretary shall establish; and
(C) provide that in no event may a payment under that subsection include any amount for which the veteran is not personally liable.
(2) Subject to paragraph (1), the Secretary may provide reimbursement under this section only after the veteran or the provider of emergency treatment has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment.
(3) Payment by the Secretary under this section on behalf of a veteran to a provider of emergency treatment shall, unless rejected and refunded by the provider within 30 days of receipt, extinguish any liability on the part of the veteran for that treatment. Neither the absence of a contract or agreement between the Secretary and the provider nor any provision of a contract, agreement, or assignment to the contrary shall operate to modify, limit, or negate the requirement in the preceding sentence.
(4)(A) If the veteran has contractual or legal recourse against a third party that would only, in part, extinguish the veteran's liability to the provider of the emergency treatment, and payment for the treatment may be made both under subsection (a) and by the third party, the amount payable for such treatment under such subsection shall be the amount by which the costs for the emergency treatment exceed the amount payable or paid by the third party, except that the amount payable may not exceed the maximum amount payable established under paragraph (1)(A).
(B) In any case in which a third party is financially responsible for part of the veteran's emergency treatment expenses, the Secretary shall be the secondary payer.
(C) A payment in the amount payable under subparagraph (A) shall be considered payment in full and shall extinguish the veteran's liability to the provider.
(D) 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.
(d) Independent Right of Recovery.—(1) In accordance with regulations prescribed by the Secretary, the United States shall have the independent right to recover any amount paid under this section when, and to the extent that, a third party subsequently makes a payment for the same emergency treatment.
(2) Any amount paid by the United States to the veteran (or the veteran's personal representative, successor, dependents, or survivors) or to any other person or organization paying for such treatment shall constitute a lien in favor of the United States against any recovery the payee subsequently receives from a third party for the same treatment.
(3) Any amount paid by the United States to the provider that furnished the veteran's emergency treatment shall constitute a lien against any subsequent amount the provider receives from a third party for the same emergency treatment for which the United States made payment.
(4) The veteran (or the veteran's personal representative, successor, dependents, or survivors) shall ensure that the Secretary is promptly notified of any payment received from any third party for emergency treatment furnished to the veteran. The veteran (or the veteran's personal representative, successor, dependents, or survivors) shall immediately forward all documents relating to such payment, cooperate with the Secretary in the investigation of such payment, and assist the Secretary in enforcing the United States right to recover any payment made under subsection (c)(3).
(e) Waiver.—The Secretary, in the Secretary's discretion, may waive recovery of a payment made to a veteran under this section that is otherwise required by subsection (d)(1) when the Secretary determines that such waiver would be in the best interest of the United States, as defined by regulations prescribed by the Secretary.
(f) Submittal of Claims for Direct Payment.—An individual or entity seeking payment under subsection (a)(2) for treatment provided to a veteran in lieu of reimbursement to the veteran shall submit a claim for such payment not later than 180 days after the latest date on which such treatment was provided.
(g) Hold Harmless.—No veteran described in subsection (b) may be held liable for payment for emergency treatment described in such subsection if—
(1) a claim for direct payment was submitted by an individual or entity under subsection (f); and
(2) such claim was submitted after the deadline established by such subsection due to—
(A) an administrative error made by the individual or entity, such as submission of the claim to the wrong Federal agency, under the wrong reimbursement authority (such as section 1728 of this title), or submission of the claim after the deadline; or
(B) an administrative error made by the Department, such as misplacement of a paper claim or deletion of an electronic claim.
(h) Definitions.—For purposes of this section:
(1) The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary—
(A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable;
(B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and
(C) until—
(i) such time as the veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or
(ii) such time as a Department facility or other Federal facility accepts such transfer if—
(I) at the time the veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and
(II) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility.
(2) The term "health-plan contract" includes any of the following:
(A) An insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or similar arrangement under which health services for individuals are provided or the expenses of such services are paid.
(B) An insurance program described in section 1811 of the Social Security Act (42 U.S.C. 1395c) or established by section 1831 of that Act (42 U.S.C. 1395j).
(C) A State plan for medical assistance approved under title XIX of such Act (42 U.S.C. 1396 et seq.).
(D) A workers' compensation law or plan described in section 1729(a)(2)(A) of this title.
(3) The term "third party" means any of the following:
(A) A Federal entity.
(B) A State or political subdivision of a State.
(C) An employer or an employer's insurance carrier.
(D) An automobile accident reparations insurance carrier.
(E) A person or entity obligated to provide, or to pay the expenses of, health services under a health-plan contract.

History

(Added Pub. L. 106–117, title I, §111(a), Nov. 30, 1999, 113 Stat. 1553; amended Pub. L. 110–387, title IV, §402(a), Oct. 10, 2008, 122 Stat. 4123; Pub. L. 111–137, §1(a), (b), Feb. 1, 2010, 123 Stat. 3495; Pub. L. 117–328, div. U, title I, §142(a)(1), (c)(2), Dec. 29, 2022, 136 Stat. 5423, 5424.)

Editorial Notes

Editorial Notes

References in Text
The Social Security Act, referred to in subsec. (h)(2), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Title XIX of the Act is classified generally to subchapter XIX (§1396 et seq.) of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.

Amendments
2022—Subsec. (b)(3)(B). Pub. L. 117–328, §142(c)(2), substituted "subsection (h)(2)(B) or (h)(2)(C)" for "subsection (f)(2)(B) or (f)(2)(C)".
Subsecs. (f) to (h). Pub. L. 117–328, §142(a), added subsecs. (f) and (g) and redesignated former subsec. (f) as (h).
2010—Subsec. (b)(3)(C). Pub. L. 111–137, §1(a)(1), struck out "or in part" after "in whole".
Subsec. (c)(4). Pub. L. 111–137, §1(b), added par. (4).
Subsec. (f)(2)(E). Pub. L. 111–137, §1(a)(2), struck out subpar. (E) which read as follows: "A law of a State or political subdivision described in section 1729(a)(2)(B) of this title."
2008—Subsec. (a)(1). Pub. L. 110–387, §402(a)(1), substituted "shall reimburse" for "may reimburse".
Subsec. (f)(1)(C). Pub. L. 110–387, §402(a)(2), added subpar. (C) and struck out former subpar. (C) which read as follows: "until such time as the veteran can be transferred safely to a Department facility or other Federal facility".

Statutory Notes and Related Subsidiaries

Effective Date of 2010 Amendment
Pub. L. 111–137, §1(c), Feb. 1, 2010, 123 Stat. 3495, provided that:
"(1) In general.—The amendments made by subsections (a) and (b) [amending this section] shall take effect on the date of the enactment of this Act [Feb. 1, 2010], and shall apply with respect to emergency treatment furnished on or after the date of the enactment of this Act.
"(2) Reimbursement for treatment provided before effective date.—The Secretary may provide reimbursement under section 1725 of title 38, United States Code, as amended by subsections (a) and (b), for emergency treatment furnished to a veteran before the date of the enactment of this Act [Feb. 1, 2010], if the Secretary determines that, under the circumstances applicable with respect to the veteran, it is appropriate to do so."

Effective Date
Pub. L. 106–117, title I, §111(c), Nov. 30, 1999, 113 Stat. 1556, provided that: "The amendments made by this section [enacting this section and amending section 1729A of this title] shall take effect 180 days after the date of the enactment of this Act [Nov. 30, 1999]."

Implementation Reports
Pub. L. 106–117, title I, §111(d), Nov. 30, 1999, 113 Stat. 1556, required the Secretary of Veterans Affairs to include with the budget justification materials submitted to Congress in support of the Department of Veterans Affairs budget for fiscal years 2002 and 2003 a report on the implementation of this section, including information on the experience of the Department under that section and the costs incurred.