By Victoria Collier, CELA, National Academy of Elder Law Attorneys, March, 2015
After the revelations and outrage about long wait times and false recordkeeping that may have led to Veterans dying in a Phoenix Department of Veterans Affairs (VA) hospital, you might be surprised to hear that VA now seeks to limit a benefit available to wartime Veterans in need of long-term care. Even worse, the proposed restrictions will no doubt lead to further delays, similar concerns that Congress sought to address in VA’s hospital system.
But here’s the kicker: these proposed changes would be implemented without Congress having a say in the matter.
Veterans Pensions: A LongTerm Care Support for a Variety of Settings
Veterans who served during wartime and have either a nonservice connected disability or are over age 65 can receive a “Veterans Pension” to help pay for longterm care. However, in order to qualify, they need to meet certain income and asset requirements. A Veteran’s spouse also qualifies for a benefit after the Veteran dies.
The benefits are modest when compared to how much longterm care can cost. Presently, the maximum a Veteran with a dependent can receive is $2,120 per month; for their surviving spouse, $1,149 per month. To put that in perspective, an assistedliving facility costs on average $3,550 per month and a semiprivate room at a nursing home costs on average $6,750 per month. So these benefits offset, but do not fully cover, longterm care needs.
By comparison, Medicaid, another needsbased program, may cover the entire cost of longterm care, but only guarantees care in a nursing home. Although home and communitybased services under Medicaid have improved, the program is still biased towards institutional care and varies by state. Many wartime Veterans opt for the Veterans Pension instead of Medicaid as a means to receive home and communitybased services.
Proposed Changes Harm Veterans and Could Make the Program Irrelevant
The proposed rule imposes a threeyear “lookback” period on gifts and other transfers and creates a maximum 10year penalty waiting period for making those transfers. The rule also imposes myriad other new restrictions that includes capping the amount of home health expenses a Veteran can deduct to qualify. As a result, fewer Veterans and their surviving spouses will be able to access these benefits to pay for the high costs of longterm care. Ask yourself these questions and decide whether you think wartime Veterans and their widows deserve this type of treatment:
- Do you know an elderly Veteran who tithed or donated to their place of worship in the last three years, or gave money to a family member in a health emergency? The proposed rule would penalize them for trying to “game” the system.
For calculating the length of the penalty, there is no way to rebut a gift. Period. Only transactions that resulted from fraud, misrepresentation, or unfair business practices related to the sale or marketing of financial products or services for purposes of establishing entitlement to VA can be rebutted.
And, Veterans, even those with dementia, will now need to give 36 months of bank statements and tax returns to qualify. This will lead to even more administrative delays, which for many Veterans could lead to further impoverishment, substandard care, and premature death.
Moreover, the proposed rule’s threeyear “lookback” and subsequent penalty period are without authorization from Congress.
- Do you know an elderly widow of a WWII or Korean War Veteran in need of care? The proposed rule believes they should suffer a penalty close to double their husband or wife’s.
Due to the way VA proposes calculating the penalty period, which uses the monthly benefit as the divisor, a spouse’s penalty could be nearly double the Veteran’s penalty. Worse, this rule unfairly targets women, who at present are more likely to be the widowed spouse of a Veteran than is a man.
- Do you know a Veteran living on a farm? The proposed rule thinks they aren’t in “actual need.”
Personal residences are presently exempt when determining need. But, the proposed rule has decided that lots of two acres or larger, regardless of location or value, should now be included as a resource. That means that Veterans in rural America may literally need to sell the farm in order to get help with activities of daily living, like bathing and going to the bathroom.
- Do you know a Veteran with dementia who lives in an independentliving facility? The proposed rule deems their care unworthy.
Many individuals in the early stages of dementia and Alzheimer’s must move into an independentliving facility because they can no longer drive and need help with managing medications and basic activities like food preparation. But under the proposed rule, these expenses may not be deducted for the purposes of qualifying. This could potentially force many into nursing homes and prematurely onto Medicaid.
- Do you know a WWII or Korean War Veteran receiving homecare in an above average cost area? The proposed rule thinks they are a burden to taxpayers.
The proposed rule only allows the deduction of a homecare worker’s wages at the national average, presently $21 per hour. But, that’s both well below the average for many areas and not even a living wage for those workers in certain parts of the country. These caps are just a means to limit the number of Veterans and their spouses who need home and communitybased services from getting the benefit.
Tell VA: Don’t Implement a Rule That Harms Our Veterans!
The proposed rule hurts America’s Veterans when they need their country most. Our Veterans deserve better.
About the Author
Victoria Collier, CELA, is Chair of NAELA’s VA Task Force, a NAELA Fellow, and former President of NAELA’s Georgia Chapter. She practices Elder Law, Estate Planning, and Veterans Benefits in Decatur, Ga., and is the Veterans Administration Benefit Expert at Lawyers for Wartime Veterans. She has served in the United States Air Force, including during Operation Desert Storm.
