NAELA’s Response to Proposed Changes to VA Aid and Attendance Eligibility

The Public Policy Committee, Veterans Task Force, of the National Academy of Elder Law Attorneys (“NAELA) has published the following update to its members on proposed changes to the eligibility requirements for VA Aid and Attendance Benefits:

[The Task Force has] provided valued input to the Government Accountability Office (GAO), Consumer Financial Protection Bureau (CFPB), and the Senate Committee on Veterans Affairs regarding their work to fight fraud, misinformation, and the use of inappropriate services and products for veterans. As the recent GAO report notes (Veterans’ Pension Benefits Improvements Needed to Ensure Only Qualified Veterans Receive Benefits), Elder and Special Needs Law attorneys have assisted with this study and have reported their concerns regarding some current practices that put our nation’s veterans at risk. Our members have also seen instances where individuals have been given inappropriate advice on transfers that may result in the delay of Medicaid eligibility in order to secure VA benefits.

Our goal is twofold: to protect veterans from unscrupulous scammers, and protect them from inappropriate administrative program rules and lengthy delays in receiving their benefits. NAELA believes that the Special Committee on Aging’s hearing and the GAO report outline critically important issues that should be addressed through education, rulemaking and/or legislation in order to protect our most vulnerable veterans and ensure that the Department of Veterans Affairs programs serve those in the greatest need.

NAELA has analyzed and is tracking S. 3270 and H.R. 6171, two nearly identical bills that were drafted in response to the GAO study. Among other things, the legislation calls for the VA to institute a three-year look-back period for veterans benefits. The bill currently fails to address other areas of concern raised during the Senate hearing and in the GAO report, such as strengthening the coordination between the pension and fiduciary programs of the VA and preventing organizations from selling financial products that may adversely impact veterans. We also invited the key Senate Veterans’ Affairs Committee staff to the recent National Aging and Law Institute in D.C.

The Veterans Task Force is in the process of rewriting the legislation to produce a bill that better protects veterans, does not create inequalities for a veteran’s spouse, and adequately addresses the GAO’s concerns of the financial exploitation of veterans. NAELA has also challenged the extent to which the VA would be able to administer a three-year look-back period without increasing the already lengthy wait time and complex VA application process. Additional concerns include:

• Penalties for transfers by the veteran are transferred to the surviving spouse upon the veteran’s death and are imposed upon the surviving spouse if the spouse applies for benefits;
• Lack of an exemption for transfers made for purposes other than qualifying for VA benefits;
• Potential penalties for the purchase of annuities, even if they are income-producing and Medicaid-compliant;
• Lack of consideration for transfers to persons with disabilities or for the establishment of special needs trusts;
• No partial cures for transfers; and
• Although the law as written is not intended to apply to transfers for one year after enactment, persons who made transfers during that period may be found ineligible when they fill out their first Eligibility Verification Report.

Supporters of these bills believe that a look-back will adequately protect veterans and preserve the Pension system. However, NAELA is committed to finding a reasonable solution that will better protect aging veterans and their families from financial exploitation while preserving access to a veteran’s rightful Pension. Veterans deserve generous and well-run benefits programs, particularly those Veterans who are older, disabled, or have multiple chronic illnesses.

NAELA staff does not believe there is a strong likelihood that the look-back bills will pass this year. We will keep you informed if and when any bills are reintroduced in the next year in the 113th Congress.

Dawn Weekly, Chair, NAELA Veterans Task Force
Amos Goodall, Chair, NAELA Public Policy Committee

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