National Academy of Elder Lawyers Speak out Against Proposal to Limit Veteran Benefits

Please contact us if you would like assistance in contacting your elected representative about this issue:
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Aid and Attendance is an enhanced pension available to veterans and surviving spouses, to assist with the cost of medical expenses and long-term care. The benefit varies between $1,149 and $2,120 per month, depending on whether the applicant is the veteran, a veteran with a dependant, or a surviving spouse. 

On January 23rd, the Veterans Affairs Department issued proposed regulations to change the eligibility criteria for Aid and Attendance. March 24, 2015 is the last day to comment on the proposed changes, although your congressman may be contacted at any time.


Some of the changes are as follows: 

1. Asset Limit: The proposed regulation establishes an asset limit equivalent to Medicaid’s maximum community spouse resource allowance, which is $119,220, in 2015, plus one primary residence. A primary residence is only excluded to the extent that it is under two acres. 

The new asset limit is actually helpful to applicants because it establishes a clear limit as opposed to the current rule, which does not. However, limiting the exclusion of a primary residence to two acres poses a problem because increased acreage is not necessarily equivalent to an increase in fair market value and it penalizes veterans in more rural areas. 

In addition, the proposed regulations provide that proceeds from the sale of a home will not be countable if used to purchase another home within the calendar year. Using the calendar year is odd because it favors someone who sells their home in February over someone who sold it in November.

2. Penalty for Transferring Assets: The proposed regulations impose a three-year “lookback” period for transferring assets. In other words, if an applicant transfers assets within three years of applying for Aid and Attendance, the applicant will be ineligible for a period of time. The ineligibility period is calculated by taking the value of the asset transferred and dividing it by the maximum annual pension rate for the applicant. The ineligibility period can be up to ten years and begins the month after the last transfer was made.

This is a major change because currently there is no penalty imposed for transferring assets. This is a problem for our clients because very often they transfer assets to create eligibility for Aid and Attendance to help them supplement the cost of their care, but the Aid and Attendance benefit by itself is insufficient. So family members use the transferred assets to make up the difference. 

In addition, since veterans and surviving spouses of veterans receive different levels of pension under the program, a different penalty period would be created on the same transfer depending on whether you are a veteran or a surviving spouse of a veteran. See the example below:

Married Veteran transfers $25,000: penalty period = 11 months ($25,000/$2,100)
Surviving Spouse transfers $25,000: penalty period = 21 months ($25,000/$1,149)

3. Limited Permissible Transfers: The proposed regulations only authorize transfers to a child who became disabled before age 18. 

What about children who became disabled later in life as a result of a brain injury? The permissible transfers in the regulations for Aid and Attendance should follow the same rules as the Social Security Administration for Supplemental Security Income and Medicaid so there is uniformity.

4. Curing Transfers: A “cure” is when a transfer can be returned to eliminate the transfer and, therefore, the penalty period. 

The proposed regulations do provide that transfers can be “cured” but, do not permit a partial cure. In addition, the proposed change only allows a “cure” within 30 days of filing the application, while the applications are often not even reviewed for months. In essence, by the time an applicant is notified that there is a transfer that is being penalized, the 30 days will have come and gone. 

5. Limits Hourly Rate for Home Health Aides: The proposed regulation limits the hourly rate for countable medical expenses for home health aides to $21 per hour. 

This may be reasonable in some parts of the country, but in Pennsylvania the hourly cost is generally higher than this.

6. Irrevocable Trusts, Revocable Trusts and Annuities: The proposed regulations would treat all transfers to any trust (revocable or irrevocable) as a transfer for less than fair market value and impose a penalty. In addition, the changes treat the purchase of any type of annuity as a transfer for less than fair market value. 

It makes no sense to penalize transfers to revocable trusts since applicants still have full control of and access to such funds. The purchase of an immediate annuity should not be treated as a transfer for less than fair market value since this is simply a form of investment. The income should be counted toward an applicant’s countable income for eligibility purposes.

If you are a veteran or an attorney who represents veterans, reach out to your Senator and Congressman to oppose these changes. We will assist you in this effort if you contact us.  You may also submit comments to the VA by clicking here by March 24th. All comments must be addressed before the final ruling can be issued.

Pennsylvania Nurse Practitioners Organize for Laws Designed to Expand Their Scope of Practice

      Pennsylvania Nurse Practitioners are scheduled to visit the state capital en mass, on Tuesday, April 29, 2014 to speak to elected representatives about expanding primary care in Pennsylvania. 
 

     There is a critical shortage of primary care physicians in our country, and this is having a disturbing effect on seniors in Pennsylvania.  AARP, Forbes, and other commentators mentioned later in this article have proposed that the void be filled by Nurse Practitioners and Physician Assistants. One study  by the Institute of Medicine and the National Research Council reports that, when compared to 16 other high income countries, Americans not only die younger but have poorer overall health.They traced that disparity to a number of causes, including the fact that Americans have "more limited access to primary care."

     As more citizens receive medical benefits because of the Affordable Care Act, and as the number of seniors continues to increase up to the year 2047, one might expect the problem to go from bad to worse. An article in the Spring, 2013 Journal of the National Academy of Elder Law Attorney suggested medical care in the future will become so scarce, that the success of the Elder Law office a few years from now will depend on the ability to connect clients with health care. 

     Pennsylvania Senate bill 1063 of 2013 would allow nurse practitioners to operate independently, thereby easing the shortage.This is not too dramatic a change from today’s situation. An increasing number of people visit a  CVS Care Center or a Minute Clinic or Now Clinic for help with a health problem. In that setting, you are seen by a nurse practitioner. Although, in Pennsylvania, the nurse practitioner is supposed to be working in collaboration with an M.D., you will never see, nor speak with, an M.D. during your visit.  The collaboration is a mere formality. The same events are taking place where large corporations are hiring a nurse practitioner to staff a clinic at the place of employment. While a very good idea, the only problem with this approach is that the company must be able to pay both the nurse practitioner and the physician. 

     The purpose of the new legislation  is to avoid the need for a physician to get involved. As you might expect, the American Medical Association is opposed to giving patients the choice to decide for themselves, stating the additional experience of an M.D. is required. One group, the national Institute of Medicine, an independent panel that advises the federal government, hit the nail on the head when they said  that many states' regulations on nurse practitioners were "overly restrictive" and based on politics. The Federal Trade Commission issued a report that was in agreement with most everyone else, that restricting the practice of Nurse Practitioners is bad for the public. It would seem that most of us are capable of deciding whether we want to visit a nearby hospital emergency room or a nearby “Minute Clinic” or other health care clinic staffed by a nurse practitioner. You still have a choice who to visit.

 

     If the law is passed, then Pennsylvania would join the 16 other states and the District of Columbia that allow NPs to practice "completely independently of a doctor and to the full extent of their training -- i.e., diagnosing, treating and referring patients as well as prescribing medications."  Alaska, New Hampshire, Oregon and Washington were the first states to adopt broader licensing authority in the 1980’s to increase the supply of primary care providers. Other states followed in the 1990’s, so there is plenty of evidence about the efficacy of the idea. The states that allow the expanded use of Nurse Practitioners do not experience any worse outcomes than the states with the restrictions.

     Even though some elected officials in Harrisburg side with the A.M.A., guess what? Our elected officials use the clinic in at the Capitol manned by a Nurse Practitioner, without a physician in site, and it does not seem to bother them. It seems silly for them to say it’s okay for them, but not for us. 

     Some publications, like this report from The Health Economist, published at the University of Pennsylvania, feel the change is inevitable and the delay is only to protect turf and money. 

     The stance of the A.M.A. seems silly in light of the fact that the nurse practitioner will refer to M.D.'s who specialize in a particular field. As the spouse of a nurse practitioner, I can say that one of the countless benefits I receive is that she finds an appropriate specialist for my needs, and that has been an enormous benefit to my health. Like most people,  would have no idea where to start on my own, nor what specialist to see.

     I strongly suggest you call your elected representative and ask them how they feel. If they feel okay, it may be because they have access to the primary medical care their constituents want too. Let them know you want to have the choice of deciding whether or not you want to see a nurse practitioner rather than wait several weeks, or visit a hospital emergency room, for primary care. 

     In honesty, some of our local officials in Philadelphia and surrounding counties are either co-sponsors or supporters of the bill. However, even those who support the bill have told me they would love to hear from their constituents rather than just hear from the lobbyists on either side of the issue.

Stay well until the next post. Let me know about ideas you would like to read about in my blog.

Bob Gasparro

Robert.Gasparro@lifespanlegal.com 
Visit our website at www.lifespanlegal for more information.