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Sidley Secures Victory for Veterans

Sidley Secures Victory for Veterans in a Multi-Billion Dollar Ruling against the U.S. Department of Veterans Affairs

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Working on a pro bono basis, Sidley recently obtained an unprecedented victory in the U.S. Court of Appeals for Veterans Claims (CAVC) that requires the VA to reimburse veterans for billions of dollars in emergency medical expenses they incurred at non-VA facilities.

The Emergency Care Fairness Act of 2010 (ECFA) requires the VA to reimburse veterans for costs of emergency care received at non-VA facilities. For uninsured veterans, the VA pays the entire cost and veterans pay nothing. Veterans with private insurance, however, are left to pay potentially devastating amounts. This unfortunate circumstance resulted from the fact that, in 2018, the VA issued a regulation prohibiting reimbursement of any copay, deductible, or coinsurance paid by veterans – meaning that insured veterans paid all of the costs not covered by insurance, often many thousands of dollars.

In conjunction with the National Veterans Legal Services Program (“NVLSP”), Sidley represented two veterans with private insurance who received emergency care at non-VA hospitals. Both veterans were required to pay thousands of dollars in medical bills because the VA, citing the regulation, refused to reimburse their deductibles and coinsurance.

Sidley and NVLSP filed a class action contending that the VA’s regulation was invalid because it was inconsistent with the ECFA’s command that the VA act as a secondary payor for insured veterans. The lawsuit pointed out that the regulation effectively allowed the VA to pay nothing to veterans with private insurance because the regulation specifically prohibited reimbursement of the only costs the veterans might be responsible for – deductibles and coinsurance.

In a landmark 41-page decision, the CAVC invalidated the regulation, certified a class of over 600,000 veterans, and directed the VA to re-adjudicate the claims of class members so that the previously prohibited costs would be reimbursed. The outcome is extraordinary both because of the class action aspects and its financial impact. The case marks only the second time in its history that the CAVC certified a class, and based on the VA’s past estimates, the VA will be required to pay between $1.8 billion and $6.5 billion in reimbursements as a result of the decision. Mark Blocker, Kara McCall, and Eric O’Brien led the Sidley team. All are in Chicago.