An important document for the veterans entitled to the Aid and Attendance benefit is a form called the “Eligibility Verification Report” (EVR) which VA sends at the beginning of the year and must be filled out every year in order to continue receiving benefits.
Even when someone receives help from a loved-one when it comes to filing this form, it isn’t uncommon for just the veteran to receive correspondence from VA.
Many people are not aware that once applied for and receiving the benefit the “EVR” has to be completed yearly to keep it. One concern to address is that if income or assets increased the past year, the benefit may be reduced or eliminated. On the other hand, if medical expenses have increased since the last year, the benefit may also increase.
While it may be true that the Supreme Court is often tasked with the daunting assignment of deciding the most controversial and divisive of issues, last Tuesday’s unanimous ruling was a little different.
Most who are familiar with the facts of Henderson v. Shinsekiwould probably agree that the decision “felt right;” especially to the elder law attorneys and senior-serving professionals who help U.S. Veterans on a daily basis.
The Court reversed a decision by the U.S. Court of Appeals that ruled Veterans Court judges could not extend the deadline to appeal, even when a Veteran’s mental illness procured the delay.
Justice Samuel Alito explained the Courts’ rationale in reversing the decision of the Court of Appeals;
The (Dep’t of Veterans Affairs) is charged with the responsibility of assisting veterans in developing evidence that supports their claims, and in evaluating that evidence, the VA must give the veteran the benefit of any doubt. … Rigid jurisdictional treatment of the 120-day period for filing a notice of appeal in the Veterans Court would clash sharply with this scheme.
For an interesting look at how the case developed in the headlines over the course of the past several months, read the first Washington Post article I referenced late last year, Court hears appeal from veteran who missed deadline, here. Then, read Supreme Court eases benefit deadline for vets, the recent article from USA Today, available here. The latter link also includes a photo of the late Mr. Henderson.
Mr. Henderson’s lawyer argued in front of the Court that his client’s disability – which developed as a result of years in the service – prevented him (Mr. Henderson) from meeting a deadline to appeal the government’s denial of his request for home care by the Veteran’s Administration. The argument was that it would be an injustice to strictly enforce the deadline against Mr. Henderson.
Veterans’ disability compensation is paid to Veterans who are injured as a result of their service to the country. If denied a request for benefits, there are 120 days to file a notice of intent to appeal. Mr. Henderson was denied home care by the Veteran’s Administration, after which he filed his notice of appeal 15 days late.
The case really boiled down to inquiries of fairness and Congressional intent. Henderson argued that Congress intended for Veterans to be treated fairly, and that the 120-day time limit was meant to be flexible; a permeable deadline, should the interests of justice require an extension.
The loser in this case (The Secretary of Veterans Affairs) argued that the time period was meant to be strictly applied and that any change to the deadline must come from Congress itself and not from the discretion of the bench (a judge).
Various veterans groups followed this case from its inception. With the traumatic stress and psychological scars evident in many soldiers who have returned from the wars in Iraq and Afghanistan, groups like the National Organization of Veterans’ Advocates, the National Veterans Foundation, and Paralyzed Veterans of America are undoubtedly happy with how Henderson turned out.
For information on Aid & Attendance benefits, you can check out our Firm’s links to frequently asked questions below:
In the year 1919 President Woodrow Wilson proclaimed November 11 as Armistice Day to honor those Veterans who served during World War I. On November 11, 1954, Armistice Day was proclaimed a legal national holiday and the name was changed to "Veterans Day" to honor all veterans of all wars.
Every November 11, ceremonies are held throughout the United States honoring Veterans of wars. A National Ceremony is held at Arlington Cemetery at the Tomb of the Unknown Soldier, where the laying of the presidential wreath and military playing of “Taps” is presented.
The Department of Veterans Affairs provides three types of long term care services for veterans.
The first are health care benefits provided to veterans who have service-connected disabilities, who are receiving VA Pension or who are considered low income. These services include free medical care, possible free prescription drugs, orthotics and prosthetics, home renovation grants for disabilities, home care, assisted living, domiciliary care, nursing home care, and a possible host of other services or benefits.
The second benefit is state veterans homes. The majority of these homes offer nursing care but some may offer assisted living or domiciliary care. The Department of Veterans Affairs in conjunction with the states helps build and support state veterans homes. These homes are generally available for most veterans and sometimes their spouses and in some cases for so-called "Goldstar parents." Veterans homes are run by the states, sometimes with the help of contract management. There may be waiting lists in some states.
The third benefit for veterans is disability income programs. The most familiar of these benefits is an income for service-connected disabled veterans called "Compensation." The least known of these is a program officially called "Pension" but popularly known as the "aid and attendance benefit."
All active-duty veterans who served at least 90 days during a period of war are eligible for Pension and the additional income from aid and attendance or housebound allowances. A single surviving spouse of such a veteran is also eligible.
All qualifying veteran applicants over the age of 65 are eligible for pension but must meet income and asset tests. Applicants under the age of 65 must in addition be totally disabled to qualify. Disability does not have to be service-connected.
A surviving spouse can be any age and there is no need for disability.
The aid and attendance benefit can pay additional income to provide for the costs associated with home care, assisted living, nursing homes, adult day care and other unreimbursed medical expenses. It can also pay for a family member other than a spouse to be the care giver. The amount of payment varies with the type of care, recipient income and the marital status of the recipient.
These types of claims require medical evidence in order to receive a rating for aid and attendance or housebound allowances. These ratings must be received or certain non-medical expenses associated with long term care are not deductible from income. Special rules also allow for deducting the annual anticipated cost of month-to-month long term care from household income in order to meet the income test. This special treatment requires special documentation and evidence. In addition, those households with substantial assets will be denied for a Pension income unless those assets are below a certain level determined for each case by VA. The personal residence, personal vehicles and personal property are exempted from this asset test. Finally, evidence must be supplied every year in January that the anticipated costs for the previous year were actually incurred or VA will likely demand for its money back.
This book contains information about how a typical applicant receives a successful pension award. VA often tells callers to go ahead and fill out the application but generally provides no information on the special treatment of annualization of anticipated recurring medical costs. The claims form also contains no information on this important issue. One simply has to know how to do it. This crucial information can make the difference between a successful award and being declined. All necessary forms for filing a claim are in the book.
Veterans who have substantial assets may need to do some estate planning and realigning of assets to qualify. An expert in this area should be sought to help with the application in order to avoid lengthy delays in awarding a benefit or a possible denial of benefits.
Today’s women are decision makers. For some couples, the woman is THE decision maker, and there’s nothing wrong with that. For example, in nearly 8 out of 10 cases where married couples purchase a vehicle, it is the woman who makes the final decision. And because women outlive men by 5.4 years on average, women frequently make decisions that have long lasting effects upon their children, their spouse, and even their parents.
Today, I want to offer 3 tips to help open the lines of communication between parent and child when it comes to the difficult subject of long term care.
Tip 1: Explain that Elder Law Attorneys are Passionate About Their Clients – Elders!
Elder law attorneys have deliberately chosen a career in a specialized area of law to serve elders. Moreover, Virginia Rules of Professional Conduct require lawyers to act in the best interests of their clients. The client of an elder law attorney is the elder. Not the child.
Elder law attorneys are equipped to facilitate familial harmony; they place the client’s concerns at the forefront of any discussion, and they orchestrate a plan that can protect a nest egg from the catastrophic expenses of long term care and improve quality of life. An inheritance is nice – and usually a much larger inheritance is a by-product of the plan devised by an excellent elder law attorney – but the first thing I explain to families I meet with is that the inheritance is not the focus. The client’s quality and dignity of life is priority #1.
Tip 2: Gather Information with Parents in No-Pressure Environment
Parents love to do things with their kids, and adult children likewise value the time they have with their aging parents. One easy way to spend time with your parents while gathering information is to attend a free seminar hosted by a local elder law attorney. Don’t be afraid to research, communicate and explain important statistics to your parents.
Tip 3: Use Easy to Understand Statistics to Convey Your Message:
Did you know that if you are over age 65:
you have a 7.2% chance of having an auto accident every year;
a 6.15% chance of needing to file a homeowner’s insurance claim; and
a 70% chance of needing long-term care?
Over half of those who need long-term care will require a nursing home.
Here is the statistic you must be concerned with:
13% of drivers are uninsured;
15% of homeowners are uninsured; but
90% of senior citizens are uninsured and unprotected against long term care needs.
This means;
87% of people insure themselves against an event that has a 7.2% annual probability;
85% of individuals protect themselves against an event with a 6.15% annual probability; but
Only 10% protect themselves from an event with a 90% probability!
Why is it important to plan for long term care? Primarily because the expenses of long term care are catastrophic and can wipe out a nest-egg in less than a year. 50% of couples and 70% of singles are impoverished (broke) after one year of entering a nursing home.
Medicaid is a government program meant for those who plan for it. I encourage you to attend a free seminar on the subject, as it is shocking that so many smart people do not realize that Medicaid – not Medicare – can be used to pay for long term care.
One common misconception is, “We don’t need to plan for our long term care yet, we’re only 65.” Almost half of all long-term care claimants are under age 65 at the time of disability. Every day that goes by without a plan, the family is risking possible delay or even forfeiture of government benefits that are meant to pay for catastrophic long term care costs.
Talking to your parents about their long term care options can be understandably difficult, and no other generation has had to simultaneously balance so many familial responsibilities at one time. But there is a new breed of estate planning and elder law that takes a family-friendly, solution-based approach making it easier to discuss difficult subjects.
Accreditation
Federal law dictates that no one may help a veteran in the preparation, presentation and prosecution of an initial claim for VA benefits unless that person is accredited. The only exception to this law is that any one person can help any veteran -- one-time only -- with a claim. To help any veteran a second time requires accreditation.
VA recognizes 3 types of individuals for purposes of accreditation.
(1) Accredited attorneys
(2) Accredited agents and
(3) Accredited representatives of service organizations. (Veterans Service Officers)
In order to be accredited to help veterans with new claims, an individual desiring this certification from VA must submit a formal application, must meet certain character requirements and work history requirements and -- except for attorneys -- must pass a comprehensive test relating to veterans claims and benefits. There are also requirements for ongoing continuing education. Without accreditation no one may help a veteran with a claim more than one time.
What Does It Mean to Help a Veteran with a Claim?
VA interprets its prohibition on preparing, presenting and prosecuting a claim to mean that talking to a veteran or a veteran's qualifying spouse or dependent after that person has indicated an intent to file a specific claim for benefits requires accreditation. Anyone can talk about veterans benefits in general with any veteran and need not be accredited. The point at which discussion narrows down to specific information about the veteran's service record, medical conditions, financial situation including income and assets and other issues relating to a claim specific to a veteran or dependent triggers accreditation. According to VA, discussing the specifics of the claim means that the veteran has expressed an intent to file an application for veterans benefits, and at this point, the consultant helping the veteran must be accredited.
Stated again: An individual cannot advise a veteran or other eligible beneficiary about that person's specific claim for VA benefits unless that individual is accredited.
It does not matter whether physical help with filing the claim is provided or not. The need for accreditation occurs at a much earlier stage than becoming physically involved in the claim. For a better understanding of how VA General Counsel interprets the need for accreditation please go to the VA Office of General Counsel Website -- Frequently Asked Questions about Accreditation at http://www4.va.gov/ogc/accred_faqs.asp Working under the Umbrella of an Accredited Attorney or Accredited Claims Agent
Many individuals or organizations who are not accredited and who are promoting and helping veterans obtain their benefits are often attempting to work under someone who is accredited. Most of these individuals are doing it wrong and not complying with the law.
These individuals make sure that the application is done by an accredited attorney or an accredited agent. In some cases, non-accredited individuals will refer veteran households to a local veterans service officer (an accredited representative of a service organization).
Unfortunately, most individuals who are not accredited and who are operating with someone who is accredited are still illegal. This is because the non-accredited individuals become involved in the claim by providing advice after an intent to file and in many cases they help gather documents and other pertinent information. As mentioned above, these activities require accreditation. The only way that a non-accredited individual can operate legally to assist someone who is accredited is to immediately refer a veteran or dependent to an accredited person when first understanding an intent to file a claim. No additional help or advice may be given after the intent to file has been recognized.
Special Salute to Troops from Tim McGraw:
Many accredited attorneys are also not operating legally. Only an accredited attorney -- one-on-one with the client -- may be involved with a claim. Anyone else, inside or outside of the office, cannot assist with the claim except under certain limiting conditions. Specifically, in order to work under an attorney, a non-accredited assistant must either be another attorney in the office, a certified paralegal in the attorney's office or an office law student or an intern. The client must also sign a consent letter allowing this arrangement. This consent must be filed with the original application. No other arrangement is allowed. Please see 38 CFR § 14.629 for an explanation of this requirement.
Charging a Fee for Help with Filing a Claim Generally, no individual or organization may charge a fee for help with filing an initial application for benefits. There is only one exception to this rule and that is under the third-party exemption in 38 CFR § 14.636 (d). The requirements under this exception are very specific. In our opinion, no one that we know of, who is charging a fee, thinking he or she is operating under this exception, is doing it legally. Here are the ways these people are violating this law. (In most cases those who are operating illegally are engaging in all 4 of these unlawful activities.)
(1) The person paying the fee is not a disinterested third party as required by law.
(2) The person filing the claim is not submitting the fee agreement to VA general counsel as required.
(3) The person filing the claim is not submitting the disclaimer to General Counsel as required.
(4) The fee is contingent upon a percentage of the amount of the approved benefit.
We are seeing various financial arrangements for filing claims that are disguised fees in one way or another. As a general rule, anyone who would directly benefit financially from helping a veteran file a claim -- whether a direct fee is charged or not -- is in essence charging a fee. We know from numerous discussions with representatives, this is the way VA General Counsel treats these arrangements.
If you are working with someone who is not operating legally as outlined above, you should stop using that person's services. If you yourself are operating in a manner that is not in accord with the conditions outlined above, you must stop doing that. You're not legal. Not only could unauthorized individuals get a notice to cease and desist but in some cases there could be fines or legal action involved as well. It's not worth it. For help with accreditation issues you can contact the National Care Planning Council at info@longtermcarelink.net. Image: Michael Elliott / FreeDigitalPhotos.net Evan H. Farr on Google +
