Camp Lejeune Claim Favorably Resolved – After Action Report

This week, we had the good fortune of discussing ancillary benefits for a Marine Corps veteran who was granted service connection and 100% P&T for disabilities related to Volatile Organic Compounds (VOCs) exposure while stationed at Camp Lejeune, North Carolina.  My gratitude to the veteran’s physician for being so accommodating and generous with his time to review an abundance of medical records, service records, and scientific research.  Ultimately, that medical opinion formed the basis for the Department of Veterans Affairs (specifically Louisville Regional Office) to grant benefits after the C&P examiners opined otherwise.

The after action report (AAR), for veterans with similar issues is two-fold.  One, there was a pretty significant issue with loss/unavailable VHA medical records dating back to the 1970s and 1980s.  While I appreciate the fact that older records are not always available, we had indisputable evidence that the veteran was treated during those time periods and those records were extremely relevant to the claim.  End result, after multiple Freedom of Information Act (FOIA) requests, FOIA appeals with the OGC, discussions with the FOIA officers at the VAMC, we received a response that was sufficient to demonstrate that records were lost/destroyed and a level of assurance that the VHA had taken every action possible to locate the records.  Second take-away . . . competent medical evidence opining as to the relationship between the condition/disability and the chemical exposure was the deciding factor.  The veteran’s treating physician took the time to review the veteran’s service medical and personnel records, post-discharge medical records, medical and scientific research and offer an opinion that was in accordance with VA case law and regulations defining what is considered an “adequate” medical opinion.

While a favorable decision is important, we still needed to discuss some of the ancillary issues for a veteran rated as permanently and totally (P&T) disabled, to include:

1) Change in Priority Group for the Veterans Health Care Administration.  More information can be found at http://www.va.gov/healthbenefits/;

2) Service-Disabled Veterans Insurance (S-DVI).  More information can be found at http://www.benefits.va.gov/insurance/s-dvi.asp;

3) Enrollment in CHAMPVA for the veteran’s spouse.  More information can be found at http://www.va.gov/hac/forbeneficiaries/champva/handbook/chandbook.pdf;

4) Eligibility for Dependents’ Educational Assistance Program (DEA).  More information can be found at http://www.benefits.va.gov/gibill/docs/pamphlets/ch35_pamphlet_2.pdf

5) Eligibility for Armed Forces Commissary and Exchange privileges.  More information can be found at http://www.mcinfoex.net/?q=personal/commissary-and-exchange-privileges;

6) State benefits, to include NJ Property Tax exemption.  More information on the New Jersey property tax exemption, as well as other benefits for qualified veterans, can be found in the NJ Veterans Guide published by the New Jersey Department of Military and Veterans Affairs.

If you have questions or concerns about your eligibility for veterans benefits, please do not hesitate to contact me for a free consultation at sdirector@finkrosner.com or (732) 382-6070.

National Panel Encourages Greater Use of Palliative Care at End of Life

Today it was reported that a nonpartisan 21-member committee appointed by the federal Institute of Medicine, which is the independent research arm of the National Academy of Sciences, has issued the results of its investigation into the way the United States’ health care system including Medicare deal with the delivery of treatment at end of life. Their 507-page report is called “Dying in America,” and you can read the report or the abstract at http://www.iom.edu/Reports/2014/Dying-In-America-Improving-Quality-and-Honoring-Individual-Preferences-Near-the-End-of-Life.aspx.  Along with recommendations to improve physician-patient consultation on end of life care, they urge Congress to begin looking at ways in which greater Medicare resources could be put towards home health care.

I wrote about this subject in my post on September 5th. There is a tremendous need to educate families and patients about the nature of palliative comfort care (hospice services) at the point in time that continuing treatment of chronic debilitating illness will be of minimal benefit and could cause further misery or suffering. It’s not merely an issue of saving health care resources & outlays — though that will be a likely result. I believe that it is really about enabling patients to come to terms with the declining trajectory of their illness and with their inevitable death so that they can stay comfortably outside the hospital and enjoy what time they have left. Practical, realistic conversations with physicians about the palliative or hospice care options at an earlier point in time  would be beneficial to patients who can no longer recover from debilitating chronic illnesses.

The NY Times article is at http://www.nytimes.com/2014/09/18/science/end-of-life-care-needs-sweeping-overhaul-panel-says.html

For advice on preparation and interpretation of “living wills” and advance directives , and planning for long term care, call 732-382-6070

Myth: “Medicaid doesn’t count the annual exclusion gifts”

A few days ago I met with a new client whose elderly relative had given out $12,000 gifts per person to a set of favorite relatives about 4 years ago because someone at the bank told her that if the gifts were limited to this amount $12,000 it would not be counted against her if she had to go to a nursing home. You would not believe how often this incorrect legal advice is given out, often by people who are not even lawyers. I can’t even count the number of clients I’ve met with over the years who asked me about this and were really surprised to hear that this is not true.

What’s it all about?  Under the Internal Revenue Code (IRC), the federal government has a unified estate tax and gift tax system. IRC §2010(c)(3).Each year, a person can pass on a certain amount of wealth at their death without there being any estate taxes, and if they make gifts during their lifetime, those gifts will generally chip away at this “exclusion” amount. IRC §2503(b). In 2014, the exclusion amount is $5,340,000 in 2014.  An exception to the gifting rule is that a taxpayer can give away up to a certain amount per person per year to as many people as they want to, without having to report it to the IRS and without the gift chipping away at the estate tax exclusion amount. This is typically referred to as the “annual exclusion amount” or an “annual exclusion gift.” For years it was $10,000 per person per year, and then it began to go up. Presently $14,000 per person per year is the 2014 amount.IRC §2503(b). For IRS’ FAQ’s on gift taxes, look at  http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Frequently-Asked-Questions-on-Gift-Taxes

Read more and find IRS publications on this at http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Forms-and-Publications-Estate-and-Gift-Tax

The vast majority of estates never come near the federal estate tax exclusion amount, but everyone seems to be familiar with the annual exclusion gift amount.

These rules have nothing to do with the rules for Medicaid eligibility. When your beloved mother with Alzheimers Disease or other advanced dementia runs out of cash and applies for Medicaid to pay for her nursing home costs, a 5-year look-back will be done and there will potentially be a disqualification penalty for every gift that was made regardless of whether it was “below the annual exclusion amount.”  A good legal strategy will be needed to protect their interests if it turns out that gifts were made a few years before that application is to be filed. There is a complex web of rules, and each problem needs individual analysis. If long-term care is foreseeable, forewarned is forearmed: get elder law advice before embarking on any type of gifting plan.

For individualized asset protection planning and legal assistance with Medicaid eligibility and appeals, contact 732-382-6070

Caregiver Child Payments under Medicaid and VA Pension

In the realm of elder care, a child who resides in their parent’s home and provides the care, assistance and supervision needed to enable the parent to remain in the community is typically referred to as the “caregiver child.” Sometimes — oftentimes — the child is giving up other jobs or income in order to provide this caregiving. Frequently the parent wishes to compensate the child in some way. Tread carefully if you are arranging for such payments. There are a host of issues to be aware of particularly if the parent needs to apply for governmental benefits.

The Veterans Improved Pension and Aid & Attendance programs include payments to in-home caregivers within the category of health  expenses that qualify as Uncompensated Medical Expenses (UME’s) which can be offset against the income to reduce it to the required level for eligibility, called MAPR or Maximum Annual Pension Rate. The documentation is simple. Form 10-2410 is submitted with the application, showing the monthly rate of pay and the start date of the services. http://www.benefits.va.gov/pension/  No particular formal employment contract is required.

Within the Medicaid Program, payment to family members for providing home care services are presumed to be a gift, rather than a wage — even if the child reported the wages to the IRS on her 1040 — unless a contract was entered into before the payments began. The written agreement must specify the services to be provided as well as the rate of payment. If the wage isn’t an amount comparable to the  prevailing market rate, the agency tends to view it as an uncompensated transfer or “gift.” The regulations don’t define just what amount of wages would be acceptable. The rule can be found at N.J.A.C. 10:71-4.10(b)6.ii. It is generally a good idea to create a detailed employment contract when setting up these kinds of arrangements. Otherwise, when a Medicaid application is filed and they do their 5-year lookback, there is a risk of a transfer  penalty being imposed for the payments that were made to the caregiver

After-the-fact payment for caregiving is treated as a gift under the Medicaid program. However, there are provisions for one type of permissible after-the-fact compensation for caregiving. The rules allow a penalty-free transfer of the residence to the child who resides with the parent and meets the criteria of “caregiver child.”  Detailed documentation should be developed to substantiate that the child meets all of the criteria, and that the parent required those services to remain in the home.

Note that a grandchild cannot be a “caregiver child” and receive the house — but they can be paid on an ongoing basis as a household employee and should enter into a written employment agreement as noted above.

For advice on structuring,  proving or appealing denials involving  in-home caregiver arrangements in connection with Medicaid eligibility, contact us at 732-382-6070

Medicaid and VA Pension Comparisons, Part II

My last post discussed some of the differences between Medicaid and the Veterans Improved Pension programs with respect to the treatment of assets, trusts and transfers.

The treatment of income is also different among these programs. Here is a chart that will give you these comparisons at a glance.

2014 VA Pension and Medicaid income resource chart

Income eligibility for Veterans Improved Pension depends on having sufficient unreimbursed medical expenses (UME’s) that can be used to offset the amount of monthly income and bring it down to the Maximum Annual Pension Rate (MAPR). Expenses must exceed 5% of the income including any payments made to a family caregiver. On the other hand,  Medicaid has two major types of long-term care programs, and income is treated differently than for the VA program. http://www.benefits.va.gov/pension/

One Medicaid long-term care program is for individuals who are Categorically Needy – their gross monthly income is below $2,163/month, which is a number that changes each year because it equals 3x the federal poverty rate (this is referred to as “the income cap”). If they live at home and receive services under the Medicaid Long-term Care Services and Supports (MLTSS, formerly called GO or Global Options) they do not have to spend down any of that income specifically on medical expenses in order to qualify. If they are in a nursing home (under Institutional Medicaid) or assisted living facility (ALF) under the MLTSS (formerly GO), they basically turn over all of the income to the facility except for limited specific deductions.

The other Medicaid long-term care program is for individuals whose income exceeds the $2,163 income cap. Presently, they can only receive Medicaid benefits in a nursing home, under the Medically Needy program in which unreimbursed medical expenses are paid out of the excess income and then, after certain specific deductions,  Medicaid picks up the cost of the nursing home. A replacement program for these applicants is slated to be active as of November 1st, 2014 — but it’s still being developed so this date may move. Under the new plan, the applicant’s excess income will have to be paid over to a Miller Trust and then disbursed in the month of receipt for the health care expenses including facility costs. Read more about that in my earlier posts on Miller Trusts, sometimes called Qualified Income Trusts. http://legalnewsyoucanuse.com/wp-admin/post.php?post=1329&action=edit

Be careful when it comes to paying family caregivers! The rules are drastically different under VA Pension and Medicaid. More on that in an upcoming post.

For legal advice and assistance with Medicaid applications and Veterans Benefits, call 732-382-6070