Van Dermark: Out of Country ER Tratement Reimbursement, Statutory Interpretation and the Use of Legislative History

Van Dermark v. McDonough, Opinion Number 19-2792, was decided June 1, 2021 and involves VA reimbursement for out of country emergency care.

The case concerned the interactions of 38 USC 1724, 1725, and 1728.  Section 1724 states “the Secretary shall not furnish hospital or domiciliary care or medical services outside any State.”  But, it creates exceptions for service connected disabilities or rehabilitations programs, gives discretion for non-citizen veterans in the Philippines and Canada for care and service for service connected disabilities, and creates an exception for outpatient clinics in the Philipines that are under the jurisdiction of the VA.  This statute was implemented through the Foreign Medical Program (FMP).

Section 1728 orders reimbursement for emergency treatment outside of the VA for service connected disabilities, a non-service connected disabilities associated with or aggravated by a service connected disability, any disability if the veteran has a permanent total disability, and any illness or injury required to continue a rehabilitation program.

Section 1725 discusses further emergency treatment reimbursement.

The veteran in this case lives in Thailand and has a schedular rating of 90% for issues not involving his heart, but has been granted TDIU.  To simply a complicated medical history, he had treatment for a cardiac event in Thailand and sought reimbursement under the FMP. 

On appeal, the veteran focused on the differences between the words furnish and reimburse in the statutes.  He contended furnish requires direct provision of healthcare whereas reimburse means payment of healthcare provided by another.  Id. at *6. 

The Court looked at the meaning of “furnish” and found just because it may bear a “narrow meaning … does not support giving it the same meaning elsewhere.”  Id. at *8. The Court determined:

But Congress "need not, and frequently does not, use the same term to mean precisely the same thing in two different statutes, even when the statutes are enacted at about the same time." Sec. Indus. Ass'n v. Bd. of Governors of Fed. Res. Sys., 468 U.S. 137, 174-75 (1984) (O'Connor, J., dissenting). And as noted above, the relevant portions of chapter 17 were not enacted at the same time but over the course of 50 years. The consistent-usage canon—which Mr. Van Dermark implicitly invokes when he consults the way "furnish" is used in VA's other healthcare statutes— "readily yields to context, especially when a statutory term is used throughout a statute and takes on distinct characters in distinct statutory provisions." Return Mail, Inc. v. U.S. Postal Serv., 139 S. Ct. 1853, 1863 (2019) (quotation marks omitted); see also id. at 1865 ("The consistent-usage canon breaks down where Congress uses the same word in a statute in multiple conflicting ways."). Because Congress has not defined "furnish" and has used it to mean distinct things throughout chapter 17, section 1724(a) itself provides the most important contextual clues to the scope of "furnish" in that provision. Several considerations persuade us that subsection (a) uses the term "furnish" in its broader sense of "provide for." Thus, the general ban on VA's furnishing medical services abroad also bars reimbursement for medical services, save for the exceptions specified in later subsections of 1724.

Id. at *9.  It then noted,

the historical evidence shows that, at the time that Congress permitted medical treatment for service-connected disabilities to be "furnished" to veterans abroad, VA had no healthcare infrastructure abroad to provide such treatment directly but would provide it as appropriate by paying for it. Thus, when Congress in 1940 affirmed the general bar on the furnishing of VA medical treatment to veterans outside the United States but permitted such treatment to be furnished for service-connected disabilities, it was using the word "furnish" in the indirect sense of the Agency arranging or paying for treatment provided by non-VA entities.

Id. at *11.

The Court summarized its ruling as stating:

the Court concludes that sections 1725 and 1728 permit reimbursement for veterans who receive emergency treatment from domestic, non-VA healthcare providers. In contrast, section 1724 covers when veterans abroad who receive medical care or services—including emergency treatment—may receive reimbursement. As relevant here, because Mr. Van Dermark was not seeking medical care in connection with a service-connected condition or as part of a rehab program, the Board properly determined that his May 2016 and May 2018 treatments at Bangkok Hospital for cardiac issues—even if qualifying as emergency treatment— could not, under section 1724, be reimbursed by VA.

Id. at *13.

Judge Greenberg dissented essentially arguing if the term was ambiguous it should have been read in favor of the veteran: “What the majority calls historical context to support a plain language finding could very easily be described as reviewing legislative history to uncover the meaning of an ambiguous term.”

This decision has limited impact in terms of its factual reach, but shows the Court’s willingness to look at legislative history.  Here, such a willingness assisted in propping up the Secretary’s interpretation narrow interpretation.  It should prod veteran advocates to make the same arguments in favor of pro-veteran interpretations.

Decision by Judge Toth and joined in by Judge Pietsch.  Dissent by the Judge Greenberg.

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