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VA Program Adds Divestment Rules and More

The so-called “Aid and Attendance” pension has become an important source of income for older adults needing long term care services, and an important source of business for some elder law attorneys. The program is offered through the Veterans Administration.  Eligibility requires military service during a period of conflict, or being the spouse or surviving spouse of a veteran that meets that requirement. In addition, there are asset and income eligibility rules. Those income and asset rules will change dramatically with the implementation of new regulations formally adopted today (but taking effect in 30 days).

There are several changes. Some of the more notable changes are outlined below. Before I get into those, I think it would be helpful to acknowledge the context of these changes and the overriding themes that tie them together.

First, it seems evident that these new rules are a reaction to the role of lawyers and financial planners who, for the past ten years or so, have become increasingly involved in “helping” veterans qualify for these benefits. The VA clearly perceives this development as harmful to the program and perhaps even exploitative towards the veterans.

Second, this VA benefit is often considered by older adults who need help with aging issues, as something available either in addition to, or as an alternative to, applying for long term care benefits through Medicaid. For historical reasons, these two programs have had very different financial (asset and income) eligibility rules.  These changes make the VA benefit rules more like the Medicaid eligibility rules.

 

Divestment. Divestment means giving away your assets (or taking other steps to artificially reduce their availability) in order to qualify for the benefit. Heretofore, there was no penalty if an applicant gave away resources in order to qualify for this VA benefit.  Now there will be.  Most Medicaid long term care programs have had divestment rules for at least 20 years.

Like the Medicaid long term care programs, penalties for asset transfers will result in periods of ineligibility the duration of which will be a function of the amount sheltered. Whereas the so-called “look back period” for Medicaid is five years, the look-back for this program will be three years.

Use of trusts and annuities in planning can result in divestment analysis under these new rules.

There are exceptions, and interestingly there is an exception for elders who were taken advantage of by an advisor who was marketing services purportedly designed to allow them to qualify for this benefit. Or, in other words, if an attorney told you to put your assets in an irrevocable trust or annuity, and now, as a result, you are ineligible for benefits, you merely have to assert that the lawyer was a charlatan to avoid the penalty (at least that how I read it).

Homestead Exemption. Both this VA benefit and Medicaid have historically exempted the primary residence from consideration as a countable asset.  In recent years, Medicaid has placed a limit on the value of an exempt homestead.  Now VA will limit the exempt homestead by using a different measurement – two acres.

Countable Asset Limit.  The amount of exempt assets that have historically been excluded for this VA benefit has been uncertain.  While some offices used a “rule of thumb” figure at times, the real rule required a calculation taking into account the income shortfall of the applicant, their life expectancy and their available resources.  Medicaid has long had a simple $2,000 rule for single people, and a formula for married persons, with a ceiling.  That Medicaid formula is called the Community Spouse Resource Allowance (or CSRA) (also sometimes called the “protected spousal amount”).  Each year the Medicaid program announces the maximum CSRA. In 2018, the maximum CSRA is $123,600.  VA has adopted, as their new asset limit for all applicants, the Medicaid maximum CSRA.

 

Conclusion. These are dramatic changes for lawyers who offer advice on this benefit.  There are other changes.  Above are those that I perceive as most notable.  To read more:  click here to read the rule changes as they were originally published in 2015 (yes it has been around that long); and click here to read the VA commentary that accompanied the announcement that the rule changes would finally be implemented today.

New Medicaid Policy on VA Income

Understanding the way Medicaid programs treat income-like benefits paid by the Veterans Administration have always been confusing (at least to me). Until now, Medicaid policy on the subject was sparse.  Good news, as of April 1, we have a lot more detail.  Bad news, I still don’t understand.

It’s important because people who can combine VA benefits (especially Aid and Attendance) with Medicaid Waiver or PACE benefits, have more options. And it comes up a lot.  But it’s dicey because if a client accesses VA benefits and by doing so receives income that puts them even one dollar over the income cap, they lose the ability to obtain benefits through either Waiver or PACE.

At least part of the confusion stems from the fact that the checks a Veteran (or their spouse) receives from the VA typically represent a composite of pensions and supplemental payments (or as Medicaid calls them “allowances”). The challenge is determining how much, if any, of a check they receive is going to be considered income when applying for Medicaid benefits. (Veterans who were injured in service receive “compensation.”  Compensation is clearly income, and is not the subject of this blog post.)

As of April 1, DHHS issued expanded language in BEM 503 (click here to read the bulletin). The BEM now says:

Bridges counts the gross amount of the pension or compensation as unearned income.

Exceptions:

  • Bridges excludes any portion of a payment resulting from an Aid and Attendance or Housebound allowance; see VA Aid and Attendance and Housebound Allowances in this item.
  • Bridges may exclude augmented benefits; see Augmented Benefits in this item.

Bridges excludes any portion of a payment resulting from unusual medical expenses; see VA Adjustment for Unusual Medical Expenses in this item.

So it clearly says they will exclude “any portion resulting from unusual medical expenses” and “any portion of the payment resulting from Aid and Attendance or Housebound Allowance.”  (emphasis added).

Then it says:

Payments are made to veterans, spouses of disabled veterans, and surviving spouses who are:

      •  Housebound.

      •  In regular need of the aid and attendance of another individual.The payment is included with the pension or compensation payment.Bridges excludes as income and as an asset the portion of a VA pension or compensation that is the aid and attendance or house-bound allowance.

Again “excluded,” but again, that annoying word “portion.”

And it says:

VA increases some pension and compensation payments due to unusual medical expenses.

Bridges excludes the increase due to unusual medical expenses as income and as an asset.

OK, so we have an “Aid and Attendance benefit” and a “housebound benefits.” Both excluded. Likewise, increases resulting from unusual medical expenses are excluded.  But we are told that these payments may only represent aportion of the payment that Veteran or his/her spouse receives, and that it is only this “portion” that is excluded.  So naively, I ask: What portion? How do we calculate it?  How do we prove what it is?

Well, policy says:

These allowances are not identifiable on a check stub or award letter. Accept the client’s statement that the payment does not include any of these additional allowances.

But I’m not asking about how to prove that the payment does not include an excluded “allowance.” I want to show that it does include an allowance, and I want it to be excluded.  Although the VA will, upon request, provide a written explanation of benefits, the process for obtaining that information is slow, unreliable, and often incomplete; especially with respect to unusual medical expenses.

There’s more – and you can read it yourself. I know I can be dense.  So I asked some of the smartest people I know (Thanks Amy and David), yet I remain uncertain.

I believe the changes were intended to make things better. After all, the State clearly understands that every Federal dollar they capture from the Veterans Administration is one less dollar they have to spend; and that forcing people who would otherwise be getting Waiver or PACE services into nursing homes because they went over the income cap doesn’t help anyone.

I don’t like posting information that doesn’t provide guidance – but thought: (1) some of you might not be aware of the changes, and (2) maybe it will make more sense to you. If so, please feel free to drop me a line.