VA Initiates Family Caregiving Program

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Department of Veterans Affairs (VA) hospitals are undertaking a new effort focused on assuring family members and loved ones caring for veterans are included in treatment.  The practice is already implemented at some facilities, but wasn't before standard policy.

The initiative finds medical providers at a handful of VA centers across the country reaching out to veterans to determine whether they want their caregiver in the room during treatment. On paper, the caregiver would then be involved in the entire care process, including treatment planning with doctors.

The new effort, kicking off first in three VA regions, was spurred by the Elizabeth Dole Foundation, an advocacy group for the 5.5. million spouses, parents, family members and friends who take care of injured veterans at home.  Elizabeth Dole, a former Republican senator from North Carolina and secretary of labor and transportation issued a statement reading "They [caregivers] are the first line of defense against the worst of all possible outcomes — suicides.  These heroes provide care that is extensive, intimate and around the clock."

“It’s about including the caregiver as a true partner. We know the veteran in our clinics but we don’t know what’s happening the other 23 hours of the day,” Lisa Pape, deputy chief officer for patient care services at VA told Stars and Stripes. “That caregiver is experiencing that life journey. And they can fill in the pieces and paint the picture that we’re not able to see so we want to include them.”

Too many caregivers  find roadblocks while trying to accompany patients they care for during treatment or while trying to communicate with doctors. While there’s a trial period at a handful of hospitals in the northwest and Ohio, the VA hopes a full integration within two years.

The VA cites data from a 2009 National Alliance for Caregiving study that suggests one-quarter of caregivers have difficulty coordinating care with health care providers. That study did not consider exclusively VA patients.

VA Caregivers Support Line

As part of National Family Caregivers Month, we want to remind everyone that  VA's Caregiver Support Line assistance is just a quick phone call away. Whether you are in need of immediate assistance or have questions about what services you may be eligible for, the caring licensed social workers who answer the support line can:

• Provide you with information about assistance available from VA;
• Help you access services;
• Connect you with the Caregiver Support Coordinator at a VA Medical Center near you, or; 
• Just listen, if that's what you need right now.

If you're just getting started with VA, calling the Caregiver Support Line at 1-855-260-3274 is a great first step to learn more about the support that is available to you.

The VA Honors National Family Caregivers Month

While the VA honors and celebrates caregivers who selflessly provide care to ill, injured, or disabled Veterans, year-round, November is National Family Caregivers Month. The theme for 2019 is “#BeCareCurious.”

Many Veterans suffer from chronic conditions, disabilities, disease, or daily difficulties and benefit from having a caregiver. Because the need for caregivers is expected to increase, the Department of Veterans Affairs (VA) is ready to stand shoulder to shoulder with VA and community partners to meet their needs.

VA is leading the country in providing unprecedented benefits and services to caregivers in support of Veterans. The Caregiver Support Program has two programs, one of which is the Program of General Caregiver Support Services, for eligible Veterans of all eras. In addition, the VA is working with urgency to expand the Program of Comprehensive Assistance for Family Caregivers (PCAFC), of Veterans from all service eras. VA seeks to ensure the PCAFC meets the needs of those currently in the program and those it will serve as it expands.

The expansion will occur in two phases, beginning in the summer of 2020 or once the Secretary has certified that the new information technology (IT) system is fully implemented. In addition to IT being certified by the Secretary, final regulations must be published.

Concurrently, the Caregiver Support Program Office offers some fantastic projects, which include adopting new technology and increasing educational opportunities for caregivers, to enhance their experience. A few examples are:

• Annie Caregiver Text Support - Provides stress management tips via text messaging to caregivers;
• Caregiver Dementia Video Series - Development of three new caregiver videos;
• Suicide Prevention Toolkit - Educate caregivers of Veterans to know facts about suicide prevention and when to reach out for resources and help.

This November, during National Family Caregivers Month, VA encourages caregivers to take time to #BeCareCurious about their loved one's care. Caregivers are encouraged to ask questions, explore options and share in the care decisions that affect the health and well-being of their loved ones.

We join in honoring caregivers of Veterans and acknowledging their important role in the health and well-being of Veterans! Get involved by posting:

#VACaregivers

 on Twitter, Facebook, and VA Pulse!

Veterans Service and Non-Service Connected Benefits

The  Senior Veterans Service Alliance is kind to publish the following summary of benefits available to senior veterans through the Veterans Administration:

Non-Service Connected Disability Benefits

Veterans who served during a period of war or their surviving spouses may be eligible for additional income from the Department of Veterans Affairs to help pay for their long term care, out-of-pocket costs.  These benefits are called Pension and Survivors Pension.  They are also misnamed the “Aid and Attendance Benefit.”

Pension benefits are subject to income and asset restriction tests which VA scrutinizes closely during application and even years after veterans or their survivors are on claim.  Pension and Survivors Pension represent only about 9% of all individuals who are on claim for all disability income categories.  

Potential incomes up to the following upper limits are possible:

• Disabled veteran with spouse – $2,230 a month;
• Single disabled veteran –  $1,881 a month;
• Single disabled surviving spouse – $1,209 a month;
• Healthy veteran with a disabled spouse – $1,477 a month

 Service-Connected Disability Benefits

Service-connected disability benefits are available to any veteran or surviving spouse with no income or asset restriction tests.  For these benefits, the Department of Veterans Affairs does not care how much money these veterans or their survivors make or what their assets are.  The benefits listed below represent the other 91% of veterans or survivors who are on claim for disability income. 

•  A surviving spouse could be receiving DIC at $1,319.04 a month or $1,599.13 a month based on the particulars of the veteran’s death.  For a surviving spouse receiving DIC and receiving long term care services, VA will pay an additional $326.77 a month – bringing the total to $1,645.81 or $1,925.90 a month.  Some surviving spouses should be receiving a monthly income from DIC but they are not.  The Senior Veterans Service Alliance can help certain surviving spouses with applications for entitlement to DIC.
• A retired veteran on Disability Compensation at 60% or more for one rating or 70% or more combined rating – with at least one of the underlying ratings at 40% – can be paid at 100% for individual unemployability.  Disability Compensation for a veteran at 60% pays $1,113.86 a month.  A veteran receiving Compensation income for individual unemployability and paid at 100% will receive $3,057.13 a month.  A senior veteran who is housebound and being paid at a 100% rating, due to individual unemployability, could apply for an additional income allowance for being housebound – bringing the total income to $3,421.90 a month.
• An older veteran receiving Disability Compensation at a 100% rating receives $3,057.13 a month.  This 100% rated veteran who is receiving long term care services could qualify for additional income allowance for long-term care bringing total income to $3,804.04 a month.

Vietnam Era Veterans, Who with Aging, Have Developed Conditions Such As Diabetes, Heart Disease, Certain Forms of Cancer and Parkinson's Disease

A veteran, who is one of 2.2 million living veterans who served in-country in Vietnam, can get additional income.  By showing evidence of one or more of the conditions above, a Vietnam veteran can receive additional income starting at $140.05 a month and going up to the possibility of $3,057 a month.

Older Single Veterans with Worsening Hearing Loss or Tinnitus

Service-connected hearing loss or tinnitus starts at $140.05 a month and goes up to the possibility of $3,057.13 a month for an older senior veteran who qualifies.  A rating for hearing loss/tinnitus of 10% or more will entitle the veteran to Veterans Health Care which is entirely free except for inexpensive prescription drug costs.  This person can then receive free hearing aids, free hearing aid batteries, free eyeglasses and substantial discounts on prescription drugs.

Blue Water Vets Win Presumption of Service Connection

The U.S. Court of Appeals for the Federal Circuit has ruled that the presumption of service connection for certain diseases for veterans who served in Vietnam applies to so-called "blue water" veterans - those who served on ships in waterways off the coast of Vietnam, but did not set foot on land.  

In 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who served in the Republic of Vietnam.  Under § 1116(f), such a veteran “shall be presumed to have been exposed during such service to [the] herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.”

In 1993, the Department of Veterans Affairs issued regulations pursuant to § 1116 that stated “‘Service in the Republic of Vietnam’ includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6) (1993) (“Regulation 307”). In 1997 in a General Counsel opinion about a different regulation, the government interpreted Regulation 307 as limiting service “in the Republic of Vietnam,"to service in waters offshore the landmass of the Republic of Vietnam only if the service involved duty or visitation on the landmass, including the inland waterways of the Republic of Vietnam, (“foot-on-land” requirement). Gen. Counsel Prec. 27-97 (July 23, 1997); 62 Fed. Reg. 63,603, 63,604 (Dec. 1, 1997).  

Mr. Procopio served aboard the U.S.S. Intrepid from November 1964 to July 1967. In July 1966, the Intrepid  was deployed in the waters offshore the landmass of the Republic of Vietnam, including its territorial sea.  Mr. Procopio sought entitlement to service connection for diabetes mellitus in October 2006 and for prostate cancer in October 2007, but was denied service connection for both in April 2009 because he could not meet the government’s foot-on-land requirement. 

Diabetes mellitus is listed in the statute under paragraph (2) of § 1116(a), and prostate cancer is listed in the pertinent regulation, 38 C.F.R. § 3.309(e). The Board of Veterans’ Appeals likewise denied him service connection in March 2011 and again in July 2015, finding “[t]he competent and credible evidence of record is against a finding that the Veteran was present on the landmass or the inland waters of Vietnam during service and, therefore, he is not presumed to have been exposed to herbicides, including Agent Orange,” under § 1116. The Veterans Court affirmed.

The U.S. Court of Appeals for the Federal Circuit, however, reversed the lower decisions, ruling in favor of Mr. Procopio:

"Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to § 1116’s presumption if they meet the section’s other requirements. They are. Because “the intent of Congress is clear, that is the end of the matter.” [citation omitted]. Mr. Procopio is entitled to a presumption of service connection for his prostate cancer and diabetes mellitus. Accordingly, we reverse." 

The case is Procopio v. Wilkie, 2017-1821 (Fed. Cir. 2019).

Steven Berenson, wrote an article about this decision on his Veterans Law Prof Blog.  He notes that the National  Law School Veterans Clinics Consortium (NLSVCC) filed an amicus brief in support of the Mr. Procopio's position.

VA Rule Changes to Aid & Attendance Effective 10/18/2018

The Veteran's Administration has published new rules regarding Aid and Attendance eligibility.  These rule changes were long anticipated, but now become effective October 18, 2018, thirty days after publication which occurred on September 18th, 2018.  Applications and transfers prior to that date are governed by the old rules.

THE NEW RULES

Three-Year Look-Back For Asset Transfers: Beginning October 18, 2018, there will be a 3-year look back on asset transfers for less than fair market value. Previously you could transfer assets in one month, and apply for benefits the next month with no look back at all. The 3-year look back has eliminated the option of last-minute planning with immediate benefits. Note however, that any transfer prior to October 18, 2018 will be protected and not subject to the new laws; however, the transfers need to be made strategically in the right way.


Penalty for Asset Transfers: Transfers made during the look-back period will be subject to a penalty period (a period of ineligibility) that can last up to 5 years. The penalty is calculated by using a set amount as a divisor (the monthly MAPR for a veteran with one dependent, which is currently $2,169.00 per month for Improved Pension with Aid & Attendance), regardless of whether the application is for a surviving spouse or a qualifying veteran. Once determined, the penalty period begins on the first day of the month that follows the last asset transferred.


Net Worth Test: The prior “asset test” was “sufficient means” which was generally around the $80,000 mark. Under the new regulations, the asset limit is now set at $123,600 for 2018 and increased each year with inflation. The asset test takes into account all assets (minus the primary residence and personal belongings like cars) plus annual gross income, minus permissible medical expenses. Be sure to check with an experienced attorney who is also accredited agent by the VA to determine whether your assets are countable or exempt under the new laws.


Allowable Medical Expenses: The changes now allow qualified veterans and widows to deduct Independent Living Facilities expenses as a deductible medical expense as long as a physician, physician assistant, certified nurse practitioner, or clinical nurse specialist says that the person EITHER needs assistance with 2 ADLs (Activities of Daily Living) OR supervision due to cognitive or physical limitations. Previously only home care, assisted living and nursing home care costs were allowed as deductions.

CALL TO ACTION!

If you are a Veteran or Widow(er) of a Veteran and want or need help paying long term care costs, you should:

• Contact a VA  Elderlaw Attorney as soon as possible to determine if you would benefit from VA Benefits Planning.
• Complete ALL asset protection planning before the October 18th deadline. All transfers that occur prior to October 18th will not be penalized under the new rules, even if an application for benefits is filed after that date. To be protected from the impact of the new rules, all planning should be completed by October 18th.

If you provide services for Veterans, you and your team need to know about these new rules. Contact our office to find out about upcoming educational workshops and training opportunities on the VA’s updated rules or to refer your clients directly to us as time is of the essence.

Read the new rules and a discussion of the changes here: Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits.

Read the following prior articles published on this blog regarding the changes:

• Proposed VA Regs Would Create Transfer Penalties for Pension Applicants
• NAELA Says the VA Could Be Sued If Proposed Transfer Regs Are Enacted

Medical Evidence in VA Claims

Although many factors are considered in the determination of eligibility for Veterans Administration (VA) benefits, one of the most important factors is assembly and production of the medical evidence.  Karen McIntyre, R.N., and a VA Accredited Agent has penned an excellent article regarding the importance of of medical evidence supporting VA claims. She writes:

In both service connected and non-service connected claims, the medical and mental condition of the veteran is crucial in the outcome of the claim. In service connected disability compensation claims, there are two routes to take; i.e. nexus or presumptive.

In nexus claims, the veteran (or survivor) must show a likely connection between the disability (or death) and military service.  In other words, does the disability (or did the death) have a connection in some way to military service and if so, how?  Proof of this rests in the medical evidence.

In presumptive claims, the claimant does not have to prove a nexus between military service and the condition (or death).  In these claims, only proof of the condition (or cause of death) during a statutory time frame and/or place of service must be shown.  These claims are much easier to win than nexus claims.

In both claims, the veteran's condition must be authenticated by a medical professional; ideally, by a private physician since many VA doctors are notorious for their lack of cooperation.  It is true that the VA will want their own doctors to exam the veteran filing a disability compensation claim, but the additional supporting evidence from the private sector can go a long way in winning a claim.

Since there are no official guidelines for doctors, Ms. McIntyre  suggests thati t may be beneficial for the claimant or his/her representative to seek medical assistance from a qualified registered nurse or other medical professional who fully understands not only diseases and conditions, but also the VA's interpretation of its unique and crucial forms.

Nearly 1 Million Veterans Have Pending Applications For Health Care At VA-- A Third May Already Be Dead

The continuing, enduring theme of this blog is that seniors, their families, and caregivers should plan their affairs, plan for for their care, and plan for the use and disposition of assets, consciously refusing to rely upon (or trust) the legal and government systems supposedly protecting them.  If the wisdom of planning privately and eschewing public support is lost upon anyone, s/he should read the Washington Post article, entitled, "Nearly 1 million veterans have pending applications for health care at VA — and a third may already be dead."  The only way one can read the first three paragraphs without wanting to scream, weep, or both, is to believe the government "get's it," and/or will soon "fix it."  Really?

The excellent article reads as follows (emphasis added):

"Despite promises for widespread reform, nearly 900,000 military veterans have pending applications to access health care from the Department of Veterans Affairs, the department’s inspector general said Wednesday in a scathing report which recommended a total overhaul of their record-keeping system that could take years.

One-third of those veterans are thought to be dead, but problems with the data makes it tough to know how many former troops were still struggling to get care, the report says. VA has said it has no way to purge the list of dead applicants.

Over half the applications listed as “pending,” as of last year do not even say when the applications were dated, and the Associated Press reported on Wednesday that investigators “could not reliably determine how many records were associated with actual applications for enrollment” in VA health care, the report said.

“Data limitations” [note: a  term selected because it suggests that programming engineers can't program a simple database, ignoring that no computer system could report information unavailable to the agency since the agency consciously refused to properly compile that information in order to protect performance incentives, and salaries, and political progress; in other words a term synonymous with "institutional corruption] prevent investigators from determining how many now-deceased veterans applied for health-care benefits or when.

Linda Halliday, the VA’s acting inspector general, told the AP that the agency’s Health Eligibility Center “has not effectively managed its business processes to ensure the consistent creation and maintenance of essential data.” [note: that's like an drunken alcoholic who intentionally climbs behind the wheel and drives through a school yard full of children claiming he did not "effectively manage" the automobile to ensure avoidance of the school zone].

The report also says VA workers incorrectly marked thousands of unprocessed health-care applications as completed. They may have deleted 10,000 or more electronic “transactions” over the past five years.

Whistleblowers have been warning that more than 200,000 veterans with pending applications for VA health care were likely deceased. The inspector general’s report substantiated those claims.

To read the entire article, go here.

To read a Summary of the Inspector General's Report, go here.

To read the Inspector General's Report, go here.

NAELA Says the VA Could Be Sued If Proposed Transfer Regs Are Enacted

In its response to the Department of Veterans Affairs’ proposed regulations that would establish a look-back period and asset transfer penalties for pension claimants, the National Academy of Elder Law Attorneys’ (NAELA) raises the prospect that the VA could be sued if the rules take effect.  

As previously reported, proposed Section § 3.276 would establish a 36-month look-back period and a penalty period of up to 10 years for those who dispose of assets to qualify for a VA pension. Currently, there is no prohibition on transferring assets prior to applying for needs-based benefits, such as Aid and Attendance. 

“[W]e express the serious concern that the proposed rule’s 3-year look-back period and transfer of assets penalty exceed statutory authority, opening up VA to future litigation and causing additional uncertainty for Veterans and their families,” write Bradley J. Frigon, NAELA’s president, and Victoria Collier, Chair of NAELA’s VA Task Force, in March 17, 2015, comments on the proposed rules.

Frigon and Collier argue that the proposed rules do not meet the standard of either an explicit or implicit delegation by congressional statute that the U.S. Supreme Court set forth in Chevron USA, Inc. v. NRDC, Inc., 467 U.S. 837 (1984).  They point out that Congress had the opportunity from 2012 to 2014 to create Medicaid-like transfer rules but that each proposal died in session.

NAELA’s comments also maintain that the proposed transfer penalties exception is too narrow.  “Veterans and their surviving spouses will be unjustly penalized for prior transfers that had absolutely nothing to do with VA pension eligibility," Frigon and Collier write. “Gifts to children at holidays and birthdays will be penalized. Donations to places of worship will be penalized. Contributions to charities will be penalized. All because there is a presumption that the transfer was made for the purpose of qualifying for VA pension. . . . The final rule should require that transfers only made for the sole purpose of qualifying for VA pension be penalized.”

The 27-page comments highlight a number of other flaws in the proposed regulation, including that it should allow for partial cures, that the time allowed to cure transfers should be expanded, that the rule disproportionately harms surviving spouses of veterans, and that the proposed net worth limits are harsher than Medicaid’s limits.

Alimony Obligation May Require Involuntary VA Admission

Victor Rizzolo and Barbara Jones divorced when Mr. Rizzolo was 84 years old. The court ordered Mr. Rizzolo to pay Ms. Jones alimony. Five years later, Mr. Rizzolo's health began to fail, so he moved in with son, who hired a caregiver for him.

Mr. Rizzolo asked the court to end the alimony payments, arguing that his income -- which was limited to VA disability payments and Social Security -- was needed to pay the caregiver. The trial court ruled against Mr. Rizzolo, finding that he had not done all that he could to meet his alimony obligations; if he entered a VA facility, the court found that he would be able to receive care and pay the alimony.  Because the court did not end the alimony obligation, Mr. Rizzolo appealed.  Perhaps he wishes he had not appealed, because, although the appeals court ruled in his favor, the court remanded the case describing an ominous potential outcome- his involuntary institutionalization in order to preserve his income for payment of alimony. 

The New Jersery Superior Court, Appellate Division, reversed, holding that the trial court did not hear evidence about whether entering a VA facility was really appropriate. According to the court, "although the [trial] court may on remand conclude that it is equitable to require [Mr. Rizzolo] to enter a VA facility against his wishes in order to use his limited income to continue to pay alimony, allowing [Ms. Jones] to preserve her assets until [Mr. Rizzolo's] death makes alimony no longer available, it may only do so upon consideration of competent evidence and a qualitative analysis of both parties' circumstances."

The court ruled that the trial court must first consider all the evidence before it can order an 89-year-old veteran in failing health to enter a Veteran's Administration (VA) facility against his will in order to ensure he had enough assets to pay alimony. Sometimes one can only exclaim, "wow!"  See, Rizzolo v. Jones (N.J. Super. Ct., App. Div., No. A-1800-13T2, March 2, 2015).  

Hopefully, his son will seek to introduce evidence regarding the relative quality of care available at home versus that available in an institution, and the court will consider carefully his quality of life concerns vis-a-vis his financial obligations. See, for example my articles, "One-Third of Nursing Home Residents Harmed In Treatment," Hapatitis Infection Risk in Nursing Homes Up 50%; Infection Risk Across the Board Increases, and "Most Terminal Dementia Patients in Nursing Homes Given Pointless and Potentially Dangerous Drugs"

For the full text of this decision, go to:
http://njlaw.rutgers.edu/collections/courts/appellate/a1800-13.opn.html

Proposed VA Regs Would Create Transfer Penalties for Pension Applicants

The Department of Veterans Affairs (VA) is proposing regulations that would establish an asset limit, a look-back period and asset transfer penalties for claimants applying for VA needs-based benefits.  Currently, there is no prohibition on transferring assets prior to applying for needs-based benefits, such as Aid and Attendance. 

In its explanation of the new regulations in the January 23, 2015 Federal Register, the VA says the changes are a response to a 2012 Government Accountability Office (GAO) report, which it states recommended changes to “to maintain the integrity of VA’s needs-based benefit programs.” The VA also offers as a reason for the new rules to “reduce opportunities for attorneys and financial advisors to take advantage of pension claimants.”

The proposed rules would establish a 36-month look-back period and a penalty period of up to 10 years for those who dispose of assets to qualify for a VA pension. The penalty period would be calculated based on the total assets transferred during the look-back period to the extent they would have exceeded a new net worth limit that the rules also establish.  The proposed net worth limit would be equal to Medicaid’s maximum community spouse resource allowance (CSRA) prevailing at the time the final rule is published and would be indexed for inflation as the CSRA is.

The amount of a claimant’s net worth would be determined by adding the claimant’s annual income to his or her assets. The VA would not consider a claimant’s primary residence, including a residential lot area not to exceed two acres, as an asset.  But if the residence is sold, proceeds from the sale would be assets unless used to purchase another residence within the calendar year of the sale. Any penalty period would begin the first day of the month that follows the last asset transfer, and the divisor would be the applicable maximum annual pension rate in effect as of the date of the pension claim.

The proposed rule also defines and clarifies what the VA considers to be a deductible medical expense for all of its needs-based benefits, and proposes statutory changes pertaining to pension beneficiaries who receive Medicaid-covered nursing home care.

The proposed rules appear to be an effort to circumvent Congress, where legislation similar to that proposed in the new regulations has been languishing for the past two years.

The proposed rules are also quite harsh when compared to the five year look-back used for Medicaid.  Although there is no explanation for the need for a longer look-back period, the fact that there is no resource recovery available to the VA may explain the longer period.  Of course, it is also possible that the government is signalling a willingness to use more strenuous measures in determining eligibility for government benefits generally, which may later translate to a similarly longer look-back for Medicaid purposes.  

Of course, more stringent regulation of eligibility may also serve the interest in the federal government seeing states enforce, and if necessary, adopt filial responsibility laws.  For more information, see my previous articles here, here, here, and here.

To read the proposed rules in 80 Federal Register 3840-3864 (23 Jan 2015), click here.  Comments must be received on or before March 24, 2015.