38 U.S.C. § 1725 — Reimbursement for emergency treatment

Page 456 TITLE 38—VETERANS’ BENEFITS § 1725 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94–581 effective Oct. 21, 1976, see section 211 of Pub. L. 94–581, set out as a note under section 111 of this title. EFFECTIVE DATE OF 1973 AMENDMENT Amendment by Pub. L. 93–82 effective Sept. 1, 1973, see section 501 of Pub. L. 93–82, set out as a note under section 1701 of this title. § 1725. Reimbursement for emergency treatment (a) GENERAL AUTHORITY.—(1) Subject to sub- sections (c) and (d), the Secretary shall reim- burse a veteran described in subsection (b) for the reasonable value of emergency treatment furnished the veteran in a non-Department facil- ity. (2) In any case in which reimbursement is au- thorized under subsection (a)(1), the Secretary, in the Secretary’s discretion, may, in lieu of re- imbursing the veteran, make payment of the reasonable value of the furnished emergency treatment directly— (A) to a hospital or other health care pro- vider 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 ac- tive Department health-care participant who is personally liable for emergency treatment fur- nished 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 emer- gency 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 de- partment or agency of the United States); (C) has no other contractual or legal re- course against a third party that would, in whole, extinguish such liability to the pro- vider; 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 pre- scribed 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 emer- gency 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 sec- tion on behalf of a veteran to a provider of emer- gency treatment shall, unless rejected and re- funded by the provider within 30 days of receipt, extinguish any liability on the part of the vet- eran 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 require- ment 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 pay- ment 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, ex- cept 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 finan- cially responsible for part of the veteran’s emer- gency 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 vet- eran 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 represent- ative, 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 emer- gency 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 rep- resentative, successor, dependents, or survivors) Page 457 TITLE 38—VETERANS’ BENEFITS § 1725 shall ensure that the Secretary is promptly no- tified 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 sur- vivors) 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 oth- erwise required by subsection (d)(1) when the Secretary determines that such waiver would be in the best interest of the United States, as de- fined by regulations prescribed by the Sec- retary. (f) SUBMITTAL OF CLAIMS FOR DIRECT PAY- MENT.—An individual or entity seeking payment under subsection (a)(2) for treatment provided to a veteran in lieu of reimbursement to the vet- eran 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 sub- section 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 dead- line 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 submis- sion 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 judg- ment of the Secretary— (A) when Department or other Federal fa- cilities are not feasibly available and an at- tempt 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 atten- tion would be hazardous to life or health; and (C) until— (i) such time as the veteran can be trans- ferred 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 De- partment facility or other Federal facil- ity agreed to accept such transfer; and (II) the non-Department facility in which such medical care or services was furnished made and documented reason- able 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, med- ical or hospital service agreement, member- ship or subscription contract, or similar ar- rangement under which health services for individuals are provided or the expenses of such services are paid. (B) An insurance program described in sec- tion 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 ap- proved 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 insur- ance carrier. (D) An automobile accident reparations in- surance carrier. (E) A person or entity obligated to pro- vide, or to pay the expenses of, health serv- ices under a health-plan contract. (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 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), sub- stituted ‘‘subsection (h)(2)(B) or (h)(2)(C)’’ for ‘‘sub- section (f)(2)(B) or (f)(2)(C)’’. Subsecs. (f) to (h). Pub. L. 117–328, § 142(a), added sub- secs. (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), sub- stituted ‘‘shall reimburse’’ for ‘‘may reimburse’’. Subsec. (f)(1)(C). Pub. L. 110–387, § 402(a)(2), added sub- par. (C) and struck out former subpar. (C) which read as follows: ‘‘until such time as the veteran can be trans- ferred safely to a Department facility or other Federal facility’’. Page 458 TITLE 38—VETERANS’ BENEFITS § 1725A Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111–137, § 1(c), Feb. 1, 2010, 123 Stat. 3495, pro- vided that: ‘‘(1) IN GENERAL.—The amendments made by sub- sections (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 treat- ment furnished on or after the date of the enactment of this Act. ‘‘(2) REIMBURSEMENT FOR TREATMENT PROVIDED BE- FORE EFFECTIVE DATE.—The Secretary may provide re- imbursement 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 in- clude 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 informa- tion on the experience of the Department under that section and the costs incurred. § 1725A. Access to walk-in care (a) PROCEDURES TO ENSURE ACCESS TO WALK-IN CARE.—The Secretary shall develop procedures to ensure that eligible veterans are able to ac- cess walk-in care from qualifying non-Depart- ment entities or providers. (b) ELIGIBLE VETERANS.—For purposes of this section, an eligible veteran is any individual who— (1) is enrolled in the health care system es- tablished under section 1705(a) of this title; and (2) has received care under this chapter within the 24-month period preceding the fur- nishing of walk-in care under this section. (c) QUALIFYING NON-DEPARTMENT ENTITIES OR PROVIDERS.—For purposes of this section, a qualifying non-Department entity or provider is a non-Department entity or provider that has entered into a contract, agreement, or other ar- rangement with the Secretary to furnish serv- ices under this section. (d) FEDERALLY-QUALIFIED HEALTH CENTERS.— Whenever practicable, the Secretary may use a Federally-qualified health center (as defined in section 1905(l)(2)(B) of the Social Security Act (42 U.S.C. 1396d(l)(2)(B))) to carry out this sec- tion. (e) CONTINUITY OF CARE.—The Secretary shall ensure continuity of care for those eligible vet- erans who receive walk-in care services under this section, including through the establish- ment of a mechanism to receive medical records from walk-in care providers and provide perti- nent patient medical records to providers of walk-in care. (f) COPAYMENTS.—(1)(A) The Secretary may re- quire an eligible veteran to pay the United States a copayment for each episode of hospital care or medical services provided under this sec- tion if the eligible veteran would be required to pay a copayment under this title. (B) An eligible veteran not required to pay a copayment under this title may access walk-in care without a copayment for the first two visits in a calendar year. For any additional visits, a copayment at an amount determined by the Sec- retary may be required. (C) An eligible veteran required to pay a co- payment under this title may be required to pay a regular copayment for the first two walk-in care visits in a calendar year. For any addi- tional visits, a higher copayment at an amount determined by the Secretary may be required. (2) After the first two episodes of care fur- nished to an eligible veteran under this section, the Secretary may adjust the copayment re- quired of the veteran under this subsection based upon the priority group of enrollment of the eligible veteran, the number of episodes of care furnished to the eligible veteran during a year, and other factors the Secretary considers appropriate under this section. (3) The amount or amounts of the copayments required under this subsection shall be pre- scribed by the Secretary by rule. (4) Sections 8153(c) and 1703A(j) of this title shall not apply to this subsection. (g) REGULATIONS.—Not later than 1 year after the date of the enactment of the Caring for Our Veterans Act of 2018, the Secretary shall pro- mulgate regulations to carry out this section. (h) WALK-IN CARE DEFINED.—In this section, the term ‘‘walk-in care’’ means non-emergent care provided by a qualifying non-Department entity or provider that furnishes episodic care and not longitudinal management of conditions and is otherwise defined through regulations the Secretary shall promulgate. (Added Pub. L. 115–182, title I, § 105(a), June 6, 2018, 132 Stat. 1412; amended Pub. L. 115–251, title II, § 211(a)(7), Sept. 29, 2018, 132 Stat. 3175; Pub. L. 116–61, § 6(2), Sept. 30, 2019, 133 Stat. 1117.) Editorial Notes REFERENCES IN TEXT The date of the enactment of the Caring for Our Vet- erans Act of 2018, referred to in subsec. (g), is the date of enactment of Pub. L. 115–182, which was approved June 6, 2018. AMENDMENTS 2019—Subsec. (c). Pub. L. 116–61 inserted comma after ‘‘a contract’’. 2018—Subsec. (c). Pub. L. 115–251, § 211(a)(7)(A), sub- stituted ‘‘agreement, or other arrangement’’ for ‘‘or other agreement’’. Subsec. (f)(4). Pub. L. 115–251, § 211(a)(7)(B), sub- stituted ‘‘Sections 8153(c) and 1703A(j)’’ for ‘‘Section 8153(c)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 115–182, title I, § 105(b), June 6, 2018, 132 Stat. 1413, provided that: ‘‘Section 1725A of title 38, United States Code, as added by subsection (a) shall take ef-