Over the last 10 years, I have helped hundreds of veterans qualify for improved pension (commonly known as Aid & Attendance) benefits. This program provides anywhere from $1100+ to $2800+ per month, typically to help pay for costs associated with care, such as in-home, assisted living, or skilled care. At the end of January, the VA announced proposed regulations that would change this program significantly- and in the process make it much harder for wartime veterans and their spouses to qualify.
The VA has tried to get changes made by convincing Congress to change the law the past two sessions, without success. So, they are now trying to circumvent Congress and do this on their own, through issuing regulations. Some of the proposed changes are likely appropriate to implement through the regulation process, while others would seem to be exceeding their authority without Congress acting first.
A brief summary of the changes are as follows:
- A 36 month look back to examine whether claimants have transferred assets, which will be presumed to have been done in order to qualify
- If transfers were made in the 36 months prior to application, a penalty will be assessed where the claimant will not get benefits that could be as long as 10 years
- Limiting the ability of claimants to claim the rental costs paid to independent living facilities, even if the claimant is getting extra assistance. Depending on the interpretation, it might even be possible to never count independent living costs.
- Limiting the size of a primary residence (which is not normally counted for VA benefits) to a 2 acre lot.
- Dependent on interpretation, the VA would either impose a penalty or at least count the entire value of an immediate annuity as an asset for asset testing to determine qualification
- Sets the asset limit at the maximum community spouse resource allowance used in Medicaid, which is currently $119,220. What is very different than Medicaid is that net worth is also reduced by annual income- so if someone has $30,000 of annual income from social security and pension, they would only be able to have $89,220 of assets.
- Limits the amount of hourly pay that can be used as a medical expense to the national average, as computed by an annual study that MetLife puts out. This is currently $21/hour.
In my opinion, it is generally a good thing for the VA to bring more clarity to the pension program so that people can have confidence going in that they will be approved or not. However, many of these proposed regulations go too far, and are going to be very detrimental for seniors, particularly those with dementia or who have helped out family members in the past without any intention to try to qualify for benefits. Some of these changes are going to be unfairly detrimental to rural veterans (the lot size restriction) while others are going to be more burdensome on urban veterans (the cap on home health pay). Finally, the VA offered no guidance as to if they would be implementing these changes retroactively, or if there will be a future date where they will become effective.
I’ve had some clients hear about these changes, and ask if there was anything that could be done to try to stop them, or at least have some input into the process. The answer is yes, and there are two different paths that could be explored. First, on regulations.gov, it is possible for anyone to issues comments on these proposed regulations and the VA has to respond to legitimate concerns made before the regulations can become final. I have been asked to a part of a task force through the National Academy of Elder Law Attorneys that will submit a very detailed comment, but it certainly does not hurt to have as many individuals as possible also chime in- particularly those that have received the benefits and helped them or their family stay out of nursing homes because they were able to more easily afford the private pay costs of independent or assisted living facilities. These comments are due by March 24. The second is to contact your Congressman’s office and alert them that this is going on and you would like them to question the VA as to why they think that they have the authority to radically alter (particularly with implementing a penalty period/lookback) a benefit program that was authorized by Congress without Congressional input.
For anyone who is considering planning to qualify for benefits, I would certainly recommend getting that planning completed before the end of March since we don’t know if or when these proposed regulations will go into effect.
If you want to know more about how to comment on the regulations, feel free to call into the office or send me an email.
If you have questions about veterans’ benefits of any kind, we are happy to help! Call into the office and schedule an appointment at 636-486-9009.