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Archives for June 2019

Jun 18

New Rules for Veterans’ Aid and Attendance Benefit

By Jessica L. Estes

Any Veteran, or surviving spouse of a deceased Veteran, whose income is not sufficient to cover his or her long-term care expenses, may qualify for a non-service-connected improved pension benefit called Aid and Attendance through the U.S. Department of Veterans Affairs (“VA”).  This benefit provides a monthly, tax-free income for the Veteran or surviving spouse provided he or she meets the eligibility and entitlement requirements.

There are four basic eligibility requirements for the Aid and Attendance benefit: (1) the Veteran or surviving spouse must be blind, residing in a nursing home, or require the aid of another person to perform personal functions required for everyday living; (2) the Veteran’s discharge from the military must be anything other than dishonorable; (3) the Veteran must have served at least ninety (90) days on active duty for anything other than training (those days do not have to be consecutive unless service began after September 7, 1980 in which case two years continuous active duty is required, or any length of active duty if the Veteran has a service-connected disability discharge; and (4) one of those days must have been during a period of war.

Additionally, the Veteran or surviving spouse must also meet the entitlement requirements.  To be entitled to the benefit, the Veteran or surviving spouse must pass the income and asset tests. The VA counts all gross household income but allows a deduction for unreimbursed medical expenses.  The Veteran or surviving spouse’s monthly income for VA purposes (gross income minus deductions) cannot exceed the maximum monthly rates for the Aid and Attendance benefit.  Currently, the rate for a Veteran without dependents is $1,881, the rate for a Veteran with one dependent is $2,230, and the rate for a surviving spouse is $1,209. 

Previously, there was no specific amount of assets that a Veteran or surviving spouse could retain and still qualify for benefits.  Rather, it was up to a claims examiner to decide if the applicant’s net worth was excessive and a bar to entitlement of the benefit.  Now, under the new rules, there is a net-worth bright line limit of $127,061.  So, if the applicant’s countable assets plus his or her annual income for VA purposes exceed that limit, he or she will not be eligible for the benefit. 

Similarly, there is now a look-back period of 36 months.  Any transfers for less than fair market value occurring during the 36-month period immediately prior to application will be penalized if such transfer would have resulted in the applicant exceeding the net-worth limit.  However, any transfers occurring prior to October 18, 2018 will not be penalized.  The penalty period begins on the first day of the month following the last asset transfer and is calculated by dividing the total amount of assets transferred in excess of the net-worth limit by the current monthly rate for a Veteran with one dependent.  Under no circumstances, though, will the penalty period exceed five years.

As with any government benefit, the application process can be daunting.  If you need assistance filing an application for benefits, contact a VA accredited consultant or attorney.  Not only can they assist you in making sure you have a fully developed claim, but by law, they are not allowed to charge for help with filing an application.

Jun 04

How to Qualify for Long-Term Care Medicaid

By Jessica L. Estes

Long-term care Medicaid is a needs-based program that helps qualified individuals pay for long-term care costs.  Long-term care is required when an individual, for a period exceeding thirty days, is unable to perform the basic activities of daily living such as bathing, dressing, eating, toileting, walking, and transferring.  Long term care can include homecare, adult daycare, respite care and assisted living or nursing home services, but long-term care Medicaid will only cover nursing home services.  As such, an individual must be admitted to a nursing home or other long-term care facility in order to apply for long-term care Medicaid.   

Moreover, there are three eligibility criteria that an individual must meet to qualify for long-term care Medicaid: (1) technical; (2) medical; and (3) financial.  In Maryland, to be technically eligible, an individual must be (1) a resident of Maryland; (2) aged 65 or older, blind, or disabled; and (3) a United States citizen or resident alien.  For purposes of Medicaid, an individual is considered a Maryland resident from the moment they are admitted to a nursing home in Maryland, even if their primary residence is located in another state or the District of Columbia.

To be medically eligible, an individual for a period exceeding thirty days, must require skilled nursing care, assistance with at least three activities of daily living, or assistance with at least two activities of daily living if the applicant also needs assistance with an instrumental activity of daily living.  Skilled nursing care is care or treatment that can only be done by doctors or nurses such as complex wound dressings, rehabilitation, or tube feeding.  Instrumental activities of daily living are not necessary for fundamental functioning but are necessary for an individual to live independently in the community.  Instrumental activities of daily living include such things as using a telephone, shopping, preparing meals, housekeeping, or money management.

Most individuals in a nursing home will meet the technical and medical eligibility criteria; however, the financial eligibility requirements are two-fold and most people will not immediately be eligible.  There are two tests an individual must pass to be financially eligible for Medicaid: the income test and the asset test.  The income test is simple.  If a person’s gross monthly income is less than the monthly cost of care at the facility, that person will pass the income test, and because the monthly cost of care at a nursing home is so high, most do.

The asset test, although simple, is not quite so easy to pass.  An individual cannot have more than $2,500 in countable assets as of the first of the month in which he or she applies for benefits.  As such, most people will need to “spend-down” their assets below that $2,500 limit to be eligible for benefits.  But, be careful!  The Medicaid qualification process is very complex and trying to navigate these rules alone, or with the assistance of a non-attorney, likely will result in wasted time, stress and frustration, and an unnecessarily large nursing home bill.  Instead, seek the advice of a competent elder law attorney who will not only obtain Medicaid benefits for his or her client, but preserve some, or all, of the client’s assets as well.