§ 5.15 Department of Veterans Administration (“VA”) Recovery Rights

• Jurisdiction: Arizona

§ 5.15 – Department of Veterans Administration (“VA”) Recovery Rights

Some veterans will receive medical care directly from a VA facility through the Veterans Health Administration who may assert recovery rights pursuant to 38 U.S.C. § 1729. Other veterans may receive emergency care from private facilities that bill the VA pursuant to 38 U.S.C. § 1725. Although the VA enjoys recovery rights under both of these statutes, the nature and scope of these rights vary.

a. The Scope of VA Recovery Rights

In circumstances where the VA furnishes the medical care, the VA may assert subrogation rights against a third-party responsible for “reimbursement and indemnification.” See 38 U.S.C. §§ 1729(a)(1) and (i)(2). Unlike the FMCRA, § 1729 is not directed at individual tortfeasors alone, but is instead directed at claims the veteran has against a State, an employer, or an applicable insurance carrier. See 38 U.S.C. § 1729(i)(3).

Specifically, the VA may recover reasonable charges “from a third party” for medical care furnished by the VA “to the extent that the veteran . . . would be eligible to receive payment for such care or services from such third party.” 38 U.S.C. § 1729(a)(1); 38 C.F.R. §§ 17.101 to 17.106. The suggested “reasonable charges” for care provided at VA facilities are available at www.va.gov/communitycare/revenue_ops/payer_rates.asp (last visited May 19, 2019).

In relevant part, § 1729 defines “payment” as the right to “reimbursement and indemnification,” and defines “third party” to include “an automobile accident reparations insurance carrier.” 38 U.S.C. § 1729(i)(3)(C); 38 C.F.R. § 17.106(a)(2) (defining “third party payer” to include first-party coverage, such as uninsured and underinsured...