C.F.R. » Title 38 » CHAPTER I—DEPARTMENT OF VETERANS AFFAIRS › PART 17—MEDICAL

38 C.F.R. § 17.1002

Substantive conditions for payment or reimbursement

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Payment or reimbursement under 38 U.S.C. 1725 for emergency treatment (including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to or prescribed for the patient for use after the emergency condition is stabilized and the patient is discharged)) will be made only if all of the following conditions are met:

(a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public;

(b) The claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part);

(c) A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non-VA medical center);

(d) At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. chapter 17 within the 24-month period preceding the furnishing of such emergency treatment;

(e) The veteran is financially liable to the provider of emergency treatment for that treatment;

(f) The veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or the provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment);

(g) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment; and the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole, the veteran's liability to the provider; and

(h) The veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability).

(Authority: 38 U.S.C. 1725) [66 FR 36470, July 12, 2001, as amended at 68 FR 3404, Jan. 24, 2003; 76 FR 79071, Dec. 21, 2011; 77 FR 23617, Apr. 20, 2012; 80 FR 79484, Dec. 22, 2015; 83 FR 979, Jan. 9, 2018]
Notes of Decisions
Cited in 15 cases (4 in the last 5 years), 2006–2022 · leading case: Richard W. Staab v. Robert A. McDonald, 28 Vet. App. 50 (Vet. App. 2016).
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Richard W. Staab v. Robert A. McDonald, 28 Vet. App. 50 (Vet. App. 2016). · cites it 6× “§ 1725 because (1) under the plain meaning of the statute, the partial coverage of his medical expenses by Medicare does not render him ineligible for reimbursement; (2) the legislative history of amendments to section 1725 supports this reading and application of the statute;…”
Wolfe v. McDonough, 28 F.4th 1348 (Fed. Cir. 2022). · cites it 3× “It struck “or in part” from the regulation correspond- ing to the third-party provision, 38 C.F.R. § 17.1002 (g), and added a regulation that the VA “will not reimburse a claim- ant .”
Linda L. Swinney v. Eric K. Shinseki, 23 Vet. App. 257 (Vet. App. 2009). · cites it 7× “§ 1725 1 *259 and 38 C.F.R. § 17.1002 . Because the Board implicitly required medical evidence of an emergency situation in contravention of statute and regulation, the Court will vacate the December 2007 Board decision and remand the matter for readjudication consistent with…”
Walter L. Fritz v. R. James Nicholson, 20 Vet. App. 507 (Vet. App. 2006). · cites it 4× “§ 1725 (b)(2)(A); 38 C.F.R. § 17.1002 (e) (2006). The parties agree that Mr.”
13-34 216 (Board of Vet. App. 2016). · cites it 6× “The implementing regulation of the statute is 38 C.F.R. § 17.1002 , which provides that payment or reimbursement for emergency services for nonservice-connected disabilities in non-VA facilities is made only if all [emphasis added] of the following are met: (a) The emergency…”
Amanda Jane Wolfe & Peter E. Boerschinger v. Robert L. Wilkie (Vet. App. 2019). · cites it 5× “'" 16 Thus, VA explicitly declined to change 38 C.F.R. § 17.1002 (f).17 Curiously, the Agency noted that the suggested change to § 17.”
13-18 540 (Board of Vet. App. 2017). · cites it 4× “) 38 C.F.R. § 17.1002 (2007). Primarily at issue were the third and fourth elements; and in particular, whether the care beyond the initial emergency evaluation and treatment was for a continued medical emergency of such a nature that the Veteran could not have been safely…”
190819-27009 (Board of Vet. App. 2021). · cites it 3× “38 C.F.R. § 17.1002 (emphasis added). Notably, the provisions of the Mission Act regarding authorized payments for use of VA in-Network urgent care facilities and prescriptions thereof do not control or affect the provisions of 38 U.”
Wolfe v. McDonough (Fed. Cir. 2022). · cites it 3× “It struck “or in part” from the regulation correspond- ing to the third-party provision, 38 C.F.R. § 17.1002 (g), and added a regulation that the VA “will not reimburse a claim- ant .”
16-00 001 (Board of Vet. App. 2017). · cites it 2× “§ 1725 ; 38 C.F.R. § 17.1002 . In its initial decisions, the VAMC allowed payment or reimbursement of the expenses the Veteran incurred at MPNBH from December 2, 2004 through December 3, 2004 but denied payment or reimbursement for the care received from December 4, 2004 to…”
210105-175381 (Board of Vet. App. 2021). · cites it 2× “§ 1725 and 38 C.F.R. § 17.1002 . The matter is REMANDED for the following action: Issue the Appellant a decision and notice of decision on the issue of entitlement to payment of the cost of non- VA medical services provided to the Veteran on July 20, 2020, as described in 38 U.”
08-03 397 (Board of Vet. App. 2012). · cites it 3× “See 38 C.F.R. § 17.1002 (a)-(i). In this case, a review of the record indicates that of the requisite criteria set forth above, there is at least one that the Veteran does not satisfy, specifically the criteria listed in 38 C.”
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