Hooah (Again): VA Liens and Subrogation

Like TRICARE, the Department of Veterans Affairs is going to have an interest in your personal injury settlement. Is there anything you can do about it? Read below to find out!

Like TRICARE, the Department of Veterans Affairs is going to have an interest in your personal injury settlement. Is there anything you can do about it? Read below to find out!

VA? Like the one I keep seeing on the news?

Remember the other day, when we talked about TRICARE liens? Well, today's article is going to be somewhat similar. Whereas Friday's article concerned TRICARE, a federal healthcare insurer for active duty military members and their families, today we're going to be talking about the United States Department of Veterans Affairs, or the VA. While the VA has been the source of substantial controversy lately - especially during the oh-so-much-fun months leading up to 2016's presidential primaries - it should go without saying that no matter how it's being run, the VA does a lot of good for a lot of United States veterans.

So where do VA liens come from?

Like TRICARE, VA is authorized by FMCRA to assert a right of recovery against third party proceeds. Specifically, the statute allows that when a veteran receives medical care for a "non-service-connected disability," the federal government may collect reasonable charges for said care from any responsible third party.  Notice a couple things here; first, the statute doesn't say that the government gets a lien against the beneficiary's recovery.  Instead, the government can collect reasonable charges of its own volition, meaning that like with TRICARE, VA liens give the federal government its own independent cause of action.  Second, you'll notice in a review of the statute that a "non-service-connected disability" is going to include any injury resulting from a car accident in a state that requires drivers to maintain auto insurance. Finally, the statute allows for a separate, independent right of recovery for any emergency treatment provided to a beneficiary at a non-VA facility.

What does the VA right of recovery include?

The VA right of recovery is going to look nearly identical to that claimed by TRICARE. That means that VA is indisputably entitled to third-party liability coverage, but its access to first-party coverages like UM, UIM and Medpay are going to depend on the policy language under the analysis set forth in Andujar.  The functional difference between VA and TRICARE is that unless the policy language expressly excludes VA from asserting a claim, any ambiguities are generally going to be interpreted to allow VA to recover from first-party proceeds. That means that VA is going to have an easier time than TRICARE in getting to your first-party proceeds.

This part is going to get a little bit confusing, so get ready. For purposes of what we're talking about here, keep in mind that there's an important difference between a right of subrogation - a claim on the proceeds when they are received - and a right of reimbursement - a right to make a claim for repayment against the injured party after he or she has already received the proceeds.  FMCRA gives VA a clear right of subrogation, but it's silent as to whether the Program can assert a right of reimbursement.  HOWEVER!!! The statute does include a requirement for the person receiving care to notify VA of any settlement (or any offer of settlement) with a third party. So if you get your settlement without letting VA know, then refuse to honor their demand for reimbursement citing the lack of such authority in the statute, VA is going to come back hard and fast with the fact that you violated the statute by failing to notify them of the settlement in the first place.

Pop quiz! Can anyone tell me why this point is almost always going to be moot?

Let's look at how a demand on the liability carrier is normally going to work. You (i) get hurt, you (ii) get treatment, (iii) the provider issues a bill, (iv) the health insurance carrier pays the bill, (v) you get a settlement from the liability carrier, and (vi) the health insurance carrier asserts its subrogation interest by taking a chunk out of your settlement. In this situation, there's a major disconnect between the health insurance carrier, the medical provider and the liability carrier, right? The only commonality is you! You get treated, you get your medical records from the provider, and you send them to the liability carrier as evidence to support your demand. Your health insurance carrier might know about your claim, or they might not. Clear as mud?

Now, let's look at how VA is different from the above circumstances. What I'm driving at here is that the Program is going to operate as both the health insurance carrier and the medical provider, right? So if you get hurt, then get treatment, then open a personal injury claim, you're going to need your medical bills and records in order to make a proper demand on the liability carrier. And who, pray, are you getting those medical records from? VA, of course! Thus, it stands to reason that you'll probably never see a scenario where a VA beneficiary opens a personal injury claim and recovers a settlement without VA knowing about it. The Program necessarily becomes such an integral part of the claims process that sneaking one by them would require a diabolical level of cunning on your part, or at least a staggering level of incompetence on the part of VA.

Moral of the story: Just let VA know if you open a claim. You're obligated to do it anyway, and they're always going to find out somehow. They might as well find out from you.

How do I figure out how much the VA lien is?

For starters, you're going to ask the VA for your bills and records. For this, you need to send a request to the Department of Veterans Affairs Regional Office, at 190 Kimel Park Drive, Winston-Salem, NC 27103. Once you get the documentation you need, make sure to audit it just like you would with anything else, to make sure the Program isn't claiming costs for unrelated treatments.

If you're in a situation where multiple insurers have covered your treatment, be aware that VA liens are going to assume pretty much the same priority as TRICARE. They're both going to be inferior to Medicare, but superior to everything else. If you need a reduction, be aware that VA tends to be a lot more forgiving than TRICARE, as long as the request is in writing and supported by basic reason and logic.

Good luck, everybody, and make sure to let me know if you need help!