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?