“The U.S. Department of Veterans Affairs (VA) currently pays the ‘actual cost’ of ground and air ambulance transports for eligible veterans and beneficiaries pursuant to its regulation at 38 C.F.R. § 70.30(a)(4). VA has done so since 2008. On February 16, 2023, the Secretary for Veterans Affairs published the final rule entitled Change in Rates VA Pays for Special Modes of Transportation, 88 Fed. Reg. 10,032 (Feb. 16, 2023). The final rule will amend § 70.30(a)(4) to enable VA to pay the lesser of the actual charge or the Medicare fee schedule (MFS) amount for non-contract ground and air ambulance transports.”
1. “Whether the final rule is in accordance with the statutory regime for payment for ambulance transports for veterans established in 38 U.S.C. §§ 1728 and 111, and within the authority of the Secretary under the same regime.” 2. “Whether the final rule is arbitrary and capricious.”
“We can only conclude that the omission of the ‘or other place’ language from § 111(b)(3)(C) was deliberate on the part of Congress. Consequently, the VA’s rulemaking extending the “lessor of” methodology to all noncontract ambulance transports—instead of only noncontract ambulance transports ‘to or from a Department facility’— in the Final Rule exceeds the discretionary authority granted to the VA by Congress under § 111(b)(3)(C). The Final Rule is thus ‘not in accordance with law’ and must be vacated.”
