New VA Regulation Threatens VA Benefit
On April 7, 2015 I submitted a column for publication in the Daily Local News alerting readers to a proposed change in qualifications for a Veterans’ benefit known as Aid & Attendance that would make it significantly more difficult for wartime veterans and their widows or widowers to obtain the benefit. That column and many reviews from other sources including the National Academy of Elder Law Attorneys (NAELA) to which I belong was followed by multiple protests to the Veterans Administration arguing against the proposed change. Probably as a result of these protests, the proposed regulation change was tabled for some 3 ½ years. Now, the current VA leadership has reissued the changes as final and ordered them to go into effect on October 18, 2018. Here are relevant portions of my 2015 column.
Daily Local News – published April 7, 2015
“Sometimes you do not know what you have until it is gone. This could be the case with a Veterans’ benefit I have frequently made the subject of my columns known as “Aid and Attendance.” If new proposed Veterans Administration regulations go into effect, Aid and Attendance qualification, also referred to as a Veteran’s pension, will become much more difficult for seniors who are veterans and they would have to go through a process similar to the complicated process of applying for Medicaid and then some. For many it could make qualification all but impossible.
Aid and Attendance is, for all practical purposes the only government benefit of note in Pennsylvania for wartime veterans and widows of wartime veterans who are in personal care, previously known as assisted living. The many communities with names that end in “Senior Living” are often personal care facilities. They are distinguished from nursing homes in that, while the residents need some assistance, they generally do not need as much help as in nursing homes and they have more of a residential environment.
The maximum payment under Aid and Attendance for a Veteran with a dependent is $2,120 per month <2015 figure>. For a surviving spouse of a wartime Veteran it is $1,149 per month <2015 figure>. However, for many, by combining the Aid and Attendance benefit and their regular monthly income, they are able to pay the personal care cost which generally speaking is much less than nursing home… Until now there has been no penalty assessed for gifting to family members or others…
Here is what you need to know…”
<The column goes on to advise readers to write and object to the changes. This is no longer relevant since the changes have been approved by the administration.>
Continuing the quote from April 7, 2015…
“The proposed rule would impose a three year “lookback” period on gifts and other transfers similar to the look back now imposed on Medicaid…”
<Note the following 2015 analysis applies to the proposed rule. Further review is needed to see if it applies to the final regulation.>
“The rule does not have the relief provisions for the spouse at home that even the Medicaid rules provide and it counts both the income of the spouse receiving care and the income of the spouse at home in determining whether the Veteran qualifies. This is more prohibitive than Medicaid.
The method of calculating the penalty would result in longer penalty periods for widows of Veterans than for Veterans themselves.
Residences would be exempted in determining need but only if the residence is located on a lot of less than 2 acres…
Paperwork requirements would require submission of three years of bank and financial statements before qualifying…”
Note: We have not finished review of the final regulations as yet and so cannot say whether the analysis provided in 2015 still stands in its entirely but the three year lookback is included.
As a further caution, one of the problems previously experienced where there was no “lookback” was that annuity salesmen gave multiple presentations urging consumers to apply with them for VA Aid & Attendance benefits stating the application with them would be “free.” What followed were annuity sales with commissions. Be careful before considering signing up for something new. Another concern is how to coordinate Aid and Attendance with possible later Medicaid. Stay tuned.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.