VA Press Release – Expansion of Educational Benefits and the Role of the VA in 20th Century History

On October 20, 2014, the Department of Veterans Affairs issued the following VA Press Release explaining the expansion of Post-9/11 GI Bill benefits to surviving spouses of servicemembers killed while on active duty.  This announcement is implementation of one of the statutory provisions of the recent Veterans Access, Choice, and Accountability Act of 2014 (“Choice Act”).

It also gives me an opportunity to comment on the historical significance of the VA GI Bill in 20th Century history (http://www.benefits.va.gov/gibill/history.asp) and its importance in my decision to join the military and represent veterans before the Department of Veterans Affairs.

As a sophomore in college, I was attending an introductory course in 20th Century History.  I can’t recall what brought up the conversation, however, the professor, a Vietnam veteran, raised the issue of the significance of his eligibility for the GI Bill in his education and how that effected the course of his life.  He then persisted to question the unwillingness of students to enter public service.  I believe many in the class left somewhat perplexed by what appeared to be a scolding.  Personally, I left questioning how this interplayed with the decision of the United States to enter WWII and the general role of military service.  This was reinforced again at law school when, if I recall correctly, Professor Alfred Slocum, presented a similar speech as the significance of the GI Bill on his own education.

What can we take away from my admitted tangent: (1) teachers be careful what you say lest you want your student to be sitting in a desert watching Marine attack helicopters hunt enemy mortar positions; and (2) despite the issues (both perceived and real) within the Department of Veterans Affairs, it is a critical federal agency that provides much needed support for veterans and their loved ones.

 

There’s help available for elderly victims of Domestic Violence

Today is “Purple Thursday” within Domestic Violence Awareness month. It’s been about 40 years since the taboo subject of conjugal crime and battering were brought out of the shadows and onto the table for public discussion. A small group of women (including myself) worked in a small network of shelters around the state and did our best to assist victims to get protective orders, new housing, jobs and financial support. We did speaking engagements to educate the public, police and lawmakers about the need for protections for victims. The first Domestic Violence restraining order law, A1330,  was signed by Governor Byrne in 1981. For those of us who were active in the battered women’s movement back in the 70’s, the signing of that law was a great day. To see the timeline of major events in this effort, take a  look at http://www.womanspace.org/about-womanspace/timeline/#1970

FREL Team in Purple

Our staff, all wearing purple to support Domestic Violence Awareness Day.

A history of domestic abuse occasionally is revealed to me when I meet with my elderly clients who come in to discuss nursing home placement. Typically it has been a wife who is talking to me about options at a point that the batterer now has Alzheimers or other dementia which is rendering him increasingly incapable and dependent. The victimized spouse who has stood by him throughout the decades of marriage now has a spouse with limited cognitive capability and she wonders, can I finally be free and regain my life? Am I required to care for him at home? In some cases, the children were also abused, and as adults, have turned away and — understandably —  feel they just cannot help. Sometimes it’s only at this point that the spouse feels it is safe to put her own well-being first. Making the decision to arrange nursing home placement is sometimes the solution that finally creates a safe space for her in her home in her old age.

For more resources and referrals, contact Partners for Women and Justice or the NJ Coalition for Battered Women. http://www.njcbw.org/aboutus_herstory.html

http://www.pfwj.org/

For legal advice concerning elder care and nursing home planning, call 732-382-6070

Special Needs Trusts have to be Sole Benefit Trusts

If a person is disabled  and cannot  support themselves, they may  need the support of government benefits over the long term to help with costs of housing, health insurance, transportation, residential services, and home health aides. If they then receive assets through a personal injury settlement, the impact of the settlement on their eligibility for benefits must be taken into account. That lump sum or structured payment stream may seem large, but can pale in comparison with the overwhelming lifetime needs of the disabled individual. The remedy is to petition the court to create a Special Needs Trust (“SNT” or “d4a”) to receive the proceeds of the settlement. This can preserve eligibility for Medicaid, SSI, DDD services, Section 8 housing, and more. However, Special Needs Trusts must meet many specific requirements and must be spent for sole benefit of the disabled individual. https://secure.ssa.gov/poms.nsf/lnx/0501120203

There are complicated rules concerning what it means to spend the trust assets for sole benefit of the trust beneficiary. https://secure.ssa.gov/poms.nsf/lnx/0501120201#f2

If trust assets are spent on another person to pay for that person’s legal obligations (mortgage, taxes, utilities, car payments), to pay for their travel, or to buy something that is then owned by the other person (computer, furniture), there are several risks to the disabled beneficiary: the payment could be treated as a transfer of assets; the payment could be counted as income to the beneficiary; and the whole value of the trust (the trust corpus) could become a non-exempt asset and be counted as an available resource. The Social Security Administration tightened up these “sole benefit” rules in May 2012, but there may be older trusts out there which have language that on its face would seem to authorize certain disbursements that today will cause big problems. For instance, although it is arguably “for benefit of” the disabled individual if the trust maintains the family home or pays for expenses that enable the whole family to stay together, these expenditures can violate the “sole benefit” requirements. Caution is advised — make sure to get updated advice on permissible ways to structure these arrangements.

For legal advice on creating and administering Special Needs Trusts and applying for Medicaid benefits, call 732-382-6070

Effective Date of Entitlement for DIC Benefits . . . Please File Within One Year of Death

On October 20, 2014, the Court of Appeals for Veterans Claims (CAVC) issued a single-judge unpublished memorandum opinion in Heredia v. McDonald.  The opinion is not precedential and presents no point of law that is unresolved, however, it will hopefully give insight in the future for filing a VA survivor benefits claim.  In essence, the surviving spouse, Mrs. Natalia Heredia, of Marine Corporal (deceased) Joseph J. Heredia was appealing the decision regarding the effective date of award for dependency and indemnity (DIC) compensation.  Judge Hagel, a decorated Vietnam veteran, denied an earlier effective date of award.  I don’t want to comment on Judge Hagel’s thought-process, however, sometimes judges need to make difficult decisions between what is legally correct and what is correct from a lay perspective.

Marine Corporal Joseph Heredia was killed in action on November 10, 2004 in the Al Anbar Province, Iraq.  News reports from the LA Times (http://articles.latimes.com/2004/dec/26/local/me-heredia26) and Fallen Heroes Memorial (http://www.fallenheroesmemorial.com/oif/profiles/herediajosephj.html) document the respect and honor by which Cpl. Heredia served.  Mrs. Heredia asserted that the Marine Corps casualty assistance officer did not inform her of VA survivor benefits at the time of death and she did not become aware of DIC benefits until September 2008 upon visiting a local VA Regional Office. The Regional Office granted DIC benefits the same month as application.

In general, the effective date of award for DIC compensation is the date of receipt of claim.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  However, if the claimant files within one year of date of death of the veteran after separation (Section 3.400(c)(2)) or within one year of date of death in service (Section 3.400(c)(1)) then the effective date of award would be the “first day of the month in which the death occurred.”

Judge Hagel found that at no point, prior to September 2008, does the record “reflect that any document was ever sent to or actually received by VA prior to Mrs. Heredia’s application for dependency and indemnity compensation such that VA was aware she was an eligible dependent.”  Judge Hagel therefore held that “the [Board of Veterans' Appeals] denial of an earlier effective date for [DIC] is not clearly erroneous….”

Judge Hagel then commented: “[T]he Court would be remiss if it did not note that Mrs. Heredia’s circumstances, on their face, are unconscionable.  Assuming the accuracy of Mrs. Heredia’s testimony-that she was not informed of her ability to obtain dependency and indemnity compensation benefits until approximately four years after her husband was killed in action-the Court is troubled that in instances when a servicemember’s death occurs in service, there appears to be no efficient and reliable mechanism in place to advise that servicemember’s family of the benefits available to them at the earliest possible moment.”

If it is any solace to Mrs. Heredia, the adjudication of her DIC claim may — and hopefully will — provide the impetus for the VA and DoD to have a better transition point for family members of servicemembers killed in service.

 

Appeal of a Medicaid Denial Must be Filed within 20 days of Notice

When an application for Medicaid benefits is filed with a County Board of Social Services in New Jersey, it may be many months before the applicant hears back from the caseworker who is processing the application. If the applicant is in a nursing home or is suffering with Alzheimers Disease or other dementias it is crucial that they have a representative such as a family member, agent under power of attorney, or lawyer, who can keep in touch with the agency, provide an accessible mailing address,  and send the updated financial records while the eligibility determination is in process and the application is pending. Should there come a time that the agency denies eligibility, it is required to serve the applicant with Notice of a Denial of Benefits. Notice is required in order to preserve the applicant’s constitutional Due Process Rights to appeal a deprivation of Medicaid benefits. The first appeal is called a Request for Fair Hearing, which takes place at the NJ Office of Administrative Law before an Administrative Law Judge.

Once the Notice has been served, the applicant has just twenty (20) days to request their Fair Hearing. N.J.A.C. 10:40-3(a). If there are “extraordinary and extenuating circumstances,” the applicant can request an extension. One of those circumstances could be that the applicant simply never received any Notice of the Denial. In a recent unpublished (non-precedential) decision of the NJ Superior Court Appellate Division called Reuter v Burlington County Board of Social Services and DMAHS, docket no. A-0514-13T2, that is what occurred. The applicant filed a late request for hearing on the 147th day and the request for extension was denied. Since the Agency had no proof that it had actually served Notice of Denial, the refusal of an extension was reversed and the case was remanded for further fact-finding.

A-0514-13T2 GRETA REUTER VS. BURLINGTON COUNTY BOARD OF SOCIAL SERVICES, ET AL. (DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, FAIR HEARING UNIT)

For representation on Medicaid application denials and fair hearings, call 732-382-6070