New proposed regulations threaten longtime VA benefit

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 Affairs regulations go into effect, Aid and Attendance qualification, also referred to as a veterans 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. For a surviving spouse of a wartime veteran it is $1,149 per month. 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. You can have a non-service connected disability or be over 65 to qualify. Until now there has been no penalty assessed for gifting to family members or others and qualification has been easier than for Medicaid although approvals might not be as prompt as applicants would wish.

Here is what you need to know.

First. If you are a wartime veteran or a surviving spouse of a wartime veteran, you can act to let your voice be heard and potentially prevent the changes. You can also find out more of the details by logging on to the website of the National Academy of Elder Law Attorneys, www.naela.org, NAELA’s website also tells you how to respond with your opinions to the Department of Veterans Affairs.

Next. You need to know the details regarding the changes.

The proposed rule would impose a three-year “lookback” period on gifts and other transfers similar to the look back now imposed on Medicaid but the look back here can result in a maximum 10-year penalty waiting period for benefits.

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 for 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. Residential property owners with lot sizes of more than 2 acres would be disqualified.

Paperwork requirements would require submission of three years of bank and financial statements before qualifying.

Veterans in early stages of dementia or otherwise needing some assistance but living in an independent living facility would not be able to count these expenses in order to qualify for benefits.

Finally there is a serious question whether the VA has the authority to pass this type of rule in the first place. Legislation had been introduced in Congress to limit the program but did not advance there. Lookback periods and penalties of the type that are suggested in the rule making proceeding would typically be the type that are passed on by legislation.

This is one of many times when I am proud to say I am a member of an organization, the National Academy of Elder Law Attorneys, that monitors this type of legislation and tries to prevent problems from arising for seniors before they happen. It is not too late to submit your comments and be heard. There have been other times I have presented these issues to the readership and things have changed. This can be another. Tune in on Wednesdays at 4:30 p.m. to radio WCHE 1520, “50+ Planning Ahead,” with Janet Colliton, Colliton Elder Law Associates, and Phil McFadden, Home Instead Senior Care. Live streaming is available at that time on www.wche1520.com. Janet Colliton, Esq. limits her practice, Colliton Elder Law Assocs, PC, to elder law, Medicaid, benefits, life care, special needs, and estate planning and estate administration with offices at 790 East Market St., Ste. 250, West Chester, PA 19382, 610-436-6674, colliton@collitonlaw.com. She is a member of the National Academy of Elder Law Attorneys and, with Jeffrey Jones, CSA, cofounder of Life Transition Services LLC, a service for families with long-term care needs.