Where Are The Lawyers? What We Can Do About The Proposed 3 Year Look Back!

The Veterans Administration issued proposed changes to regulations imposing a three-year look back for gifts of any kind – gifts to charity, gifts to churches, gifts to children who have medical or financial crisis — when a Veteran is applying for Improved Pension, to include aid and attendance. Penalties would also apply to financial transactions wherein the Veteran uses his own money to create a guaranteed income stream to pay for his own care, but still seeking assistance from the VA to fill in the shortfall.

The look-back and associated penalties are not the only changes to the regulations. The VA also intends to completely exclude the costs of independent living facilities as medical expenses, unless the facility provides 24/7 custodial care supervision or assistance with two activities of daily living (or directly contracts with a third party, professional care provider to do so).  This will eliminate anyone who is housebound needing to live in a safe environment due to physical or cognitive limitations. Moreover, the VA wants to arbitrarily cap the amount of deductible home health care expenses to an hourly rate of $21, which was the national average rate in 2012, which means that 50% of home health care recipients already pay more than that.

The public can respond to these proposed changes by March 24, 2015.  As of March 5, 2015, there have been 144 comments published on the www.regulations.gov website, the mass majority opposing the changes.  What is interesting is that of the 144 submissions, there are fewer than 10 identifiable as lawyers or other professionals who assist and advocate for Veterans. 

We, as professionals, have the greatest ability to articulate the legal reasons why these proposed regulations should not pass as proposed. While it is necessary to hear from individuals who are receiving the benefit, and of the harm to them if the benefits were terminated, it is just as necessary to hear from professional advocates, especially lawyers.  In our capacity, we can point out the following:

• Only Congress has authority to impose look-backs and penalties for transfers per statutory requirements
• An administrative agency, when making permissible changes to regulations, must still follow the expressed intent of Congress and must not make changes that are arbitrary and capricious
• The proposed changes, specifically in how the penalty divisor for transfers, would penalize widows almost twice as harshly as Veterans
• The proposed changes will eliminate the Veteran from choosing the least restrictive environment to receive care because independent living facilities will not be an option
• The proposed changes will limit the Veteran’s ability to hire quality home health care if the expense is above $21 per hour
• The proposed changes would force a Veteran to sell his property if it exceeds 2 acres, seriously affecting our rural Veterans
• The proposed changes would penalize any Veteran who has engaged in solid estate and elder care planning because they used trusts and/or annuities that would assist in paying for their care.

Perhaps you, the lawyer, are still crafting your well-articulated response and intend to file it before March 24, 2015.  If so, I applaud you.  Perhaps you are not sure what to write.  If so, I encourage you to attend the upcoming webinar on March 10, 2015, presented by the National Academy of Elder Law Attorneys, for guidance.

I also encourage you to read the proposed changes and comments made by others, found at www.regulations.gov by searching RIN 2900-AO73.  Perhaps you are spending your time connecting with your Congressman and your local community to raise awareness.  If so, I commend you. However, this is not enough.  Public comment must be made so that the reviewing authorities know how you feel about the changes and have solid legal arguments to review and respond to. You can submit your response directly to www.regulations.gov. 

Much like the proposed regulations placing limitations on benefits for wartime veterans and their surviving spouses, we have LIMITED time to respond. Please submit your formal responses by the deadline of March 24, 2015 and help make a difference for our nation’s wartime heroes.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004.  Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation, Chari of the National Academy of Elder Law Attorney’s VA Task Force, Author of 47 Secret Veterans Benefits for Seniors, Author of Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit, Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC, Co-Founder of Lawyers for Wartime Veterans, Co-Founder of Veterans Advocate Group of America.