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Michigan Elder Law Today

Sunday, January 20, 2013

Does the VA Still Count the Cost of Senior Independent Living Facilities for Aid and Attendance?

Often, senior wartime veterans or their surviving spouses can no longer live on their own in their home anymore, but they do not yet need the level of care provided in an assisted living facility or nursing home.  Independent living facilities for seniors are a great option in these situations, where one has their own apartment, but meals are provided as well as additional services for the senior who is still somewhat independent, but has some assistance needs.  The cost may be $2,500 to $3,500, so the issue of how to pay independent living must be considered.

The receipt of the United States Department of Veterans Affairs improved pension (“Aid and Attendance”) can be very helpful for wartime veterans and their surviving spouses in paying for long-term care costs, including the cost of room and board at such senior independent living residences.

As explained on other pages of my website, in order to qualify for Aid and Attendance, the veteran or surviving spouse must meet certain military service, medical, asset, and income criteria in order to qualify.

For the income criteria, if the veteran or surviving spouse’s “unreimbursed medical expenses” exceed their income, the veteran or surviving spouse would meet the income criteria to receive Aid and Attendance.

Unfortunately, the VA has recently issued a policy making it harder to count the cost of independent senior living facilities as an unreimbursed medical expense, making it harder for veterans and surviving spouses who live in these facilities to use the cost to qualify for Aid and Attendance.

By way of background, many seniors who live in independent senior living facilities need the meal preparation, housekeeping and laundry, transportation, 24-hour staffing, emergency pull cords, and security these facilities provide.  This is a large group of seniors who could not live on their own anymore, but could live in these facilities with the above services being provided.  These independent living facilities have been a less institutional and less expensive option for these seniors then assisted living and nursing homes.

The VA’s recent new policy states that the VA will only count the cost of the room and board payment paid to such senior living facilities if the facility provides “custodial care.”  “Custodial care” is then defined in the policy to mean the veteran/surviving spouses needs assistance with the activities of daily living.  You would think activities of daily living means a senior needs help with meal preparation, laundry, and having someone on hand in case of a fall or emergency (the 24-hour staffing).  However, the VA policy defines activities of daily living much more restrictively to mean that a senior needs assistance with bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet.  In other words, if a senior can feed themselves but not prepare their own meals, then the VA will not count the cost paid to an independent living facility for meal preparation as expense that helps qualify the veteran/spouse for Aid and Attendance.  Even worse, the new policy states the VA will not consider services such as emergency pull cords, 24-hour staffing, and providing security as an unreimbursed medical expense that can help veterans or their surviving spouses qualify for Aid and Attendance.  The effect of the policy may be to reduce the type of qualifying facilities a veteran or surviving spouse can live to the more institutional and expensive assisted living and nursing home type facilities.

However, veterans and surviving spouses living in such independent senior living facilities should not give up using the costs of those facilities to obtain Aid and Attendance.  Oftentimes such facilities provide the meal preparation, housekeeping and laundry, security, and emergency pull cords I referenced above, but then they have another care company provide care services to their residents.  The resident has to pay the care company an additional fee for the care services. 

The new VA policy indicates that if the veteran/spouse’s physician states in writing that the veteran/spouse must resident in the senior living facility in order to contract for custodial care services provided by a third-party, the VA will then count the cost of room and board paid to the senior living facility as an unreimbursed medical expense.  However, in order for this to work, the veteran/spouse will need to be receiving the more restricted custodial care services I described above, i.e., assistance with bathing, getting dressed, etc., not just meal preparation and medication management.

Another effect of the new policy is that elder care attorneys will need to more carefully develop the physician’s statement and then link it to the services being provided in such independent senior living facilities so that the VA will count the cost of the room and board paid to the facility as an unreimbursed medical expense.  All too often, I see situations where the adult child or a senior veteran/surviving spouse just submits the application to the VA to see what happens and then wonders why it gets denied.  As I have written elsewhere, Applying for Aid and Attendance is Not a Do-It-Yourself Project.  With the VA making it harder to qualify, it’s more important to consider getting the help of an elder care attorney who is experienced in long-term care planning, including Aid and Attendance, in making sure a qualifying case is in place before submitting an application for benefits.

The new policy only applies to claims filed after October 26, 2012.  If a veteran/spouse is already receiving Aid and Attendance and they move to a new facility, the new policy would also then apply to them.  As such, if one is living in an independent senior living facility and receiving Aid and Attendance, before moving, the effect of the continued receipt of Aid and Attendance must be carefully considered.


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