Schmitt & Coletta, P.C.

New Rule:

On January 23, 2015, the Federal Register released Document No. 2015-00297. This document has caused quite a

stir in the elder care industry, and has climbed to the top of the “hot-button issues” list. If you’re not yet familiar with

the document, you’re likely wondering what could possibly cause such widespread interest. It’s an unexpected rule

proposal by the Department of Veterans Affairs (“VA”) regarding net worth determinations, asset transfers, and

income exclusions for Veterans pension benefit eligibility.

You need to know what they are doing and how to take action to STOP them from simply passing these regulations without legislation or vote!  

 Below is a summary of the main changes.

VA proposes a three year look-back period for transfers of assets for less than fair market value. Veterans and their spouses, who are determined to have transferred assets in contravention of the rule, would be subject to apenalty period up to 10 years.

VA proposes to calculate the penalty period by dividing the total amount transferred for less than fair market value (FMV) by the monthly maximum pension a beneficiary could receive. For example, the penalty period would be calculated as follows: Married Veteran transfers $50,000 for less than FMV – penalty period is 23 months ($50,000 / $2,120 = 23.58) Surviving spouse transfers $50,000 for less than FMV – penalty period is 43 months ($50,000 / $1,149 = 43.51).  This is completely unfair to the surviving spouses, who become subject to a penalty nearly twice as long as for married veterans.

 VA proposes to limit the allowable deduction for in-home health care to the average hourly private pay rate for home health aides as published by the MetLife Mature Market Institute, which was $21 an hour in 2012. More than 50% of home care recipients already pay more than that.  

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).

 Previously, a Veteran’s personal residence and a reasonable lot area would be excluded for purposes of calculating net worth. In its proposed rule, VA proposes to limit the land exemption to only TWO acres. This rule improperly punishes rural veterans and farmers.

This proposed legislation is a dishonor to our honorable veterans who made great sacrifices to protect our country.

 YOU CAN HELP!

The public has until March 24, 2015 to make comments to these proposed regulations.  Please take the time to comment on these unfair and potentially illegal changes.

We don’t know when the rules will be changed, so you  must act fast.

If you are in a combat zone and later suffer from PTSD your statements do not need be verified under VA regulations. But if your are raped in a combat zone by a fellow soldier, you have a higher burden of proof. The U.S. Court of Appeals for the Federal Circuit so held in a recent case Hall v. Shenseki.  According to the Court the term" hostile" refers to enemy activity an apparently not the hostile activities of one who wears the same uniform of one!

 

Perhaps Congress should address this issues as well as the procedures to investigate and prosecute sexual assaults in the military.

The VA is working to reduce the backlogs of initial claims but does speed sacrafice accuracy and fairness to the veterans?   More vets are filing appeals with the Board of Veteran Appeals and the appeals back log is climbing.

 

There are 264,000 cases on appeal. 13,000 appeals have been filed since mid-July 2013. According to a retired Lieutenant Colnel who was a an Army Jag officer and now a veteran advocate, " A VA employee makes a decision and the entire system just attempts to defend that position as opposed to going back in and seeing what's wrong with it."

 

A veteran who files an appeal will be n the syatem four or more years based on current wait times published by the VA.  There are many reasons for the long wait times, but one of them may be the culture of the VA itself.  The VA only hires from within and although a Veteran Service officer or other Veteran advocates are qualified to do the job of Rating Specialist they cannot even apply for the position.  Thus new Rating Specialist are trained by old Rating Specialists continuing the prevailing culture.

 

The Board of Veteran Appeals also hires from within the VA and so the cycle continues!