Department of Veterans Affairs.
Final rule.
The Department of Veterans Affairs (VA) amends its regulations governing veterans' eligibility for VA pensions and other needs-based benefit programs. The amended regulations establish new requirements for evaluating net worth and asset transfers for pensions and identify which medical expenses may be deducted from countable income for VA's needs-based benefit programs. The amendments help to ensure the integrity of VA's needs-based benefit programs and the consistent adjudication of pension and parents' dependency and indemnity compensation claims. Lastly, the amendments effectuate: Statutory changes for pension beneficiaries who receive Medicaid-covered nursing home care; a statutory income exclusion for disabled veterans; and longstanding statutory income exclusions for all VA needs-based benefits.
Timothy Bailey, Acting Assistant Director, Pension and Fiduciary Service, Veterans Benefits Administration, Department of Veterans Affairs, 21P1, 810 Vermont Ave. NW, Washington, DC 20420, (202) 632–8863. (This is not a toll-free number.)
In a notice of proposed rulemaking published in the
The 60-day public comment period ended on March 24, 2015. VA received over 850 comments from an array of constituencies, including advocates, advisors, law firms, members of Congress, State government agencies, professional associations, veterans service organizations, and other interested members of the public. We read, analyzed, and considered each comment and are grateful to all who invested their time to comment. Some commenters stated that our explanation for certain provisions is unclear. We believe that we provided adequate justification in the proposed rule for this rulemaking but nonetheless provide further justification for this rulemaking in this final rule document. Many made valuable contributions, and we made changes in the final rule as a result. We grouped the comments by topic and discuss them by topic group later in this document.
The majority of the comments focused on several specific provisions, and we summarize those here. First, we proposed changes to the pension benefit program with respect to the amount of net worth a claimant could have to qualify for pension (for purposes of this supplementary information, references to a claimant include a beneficiary). We proposed a bright-line net worth limit and proposed as the limit the dollar amount of the maximum community spouse resource allowance (CSRA) for Medicaid purposes, at the time of publication of the final rule. We proposed to define net worth for VA purposes as the sum of a claimant's assets and annual income.
Second, we proposed to set forth the manner in which VA calculates a claimant's assets. We proposed to clarify VA's treatment of a claimant's residence for asset calculation purposes. We proposed a definition of “residential lot area” to mean the lot on which a residence sits that is similar in size to other residential lots in the vicinity, but not to exceed 2 acres (87,120 square feet), unless the additional acreage is not marketable.
Third, we proposed to establish a 36-month “look-back” period and a penalty period not to exceed 10 years for those who transfer assets during this look-back period to qualify for pension. We proposed that a transfer for less than fair market value would include an asset transfer to, or purchase of, any financial instrument or investment that reduces net worth and would not be in the claimant's financial interest were it not for the claimant's attempt to qualify for pension. We proposed that examples of such instruments or investments would include trusts and annuities. We further proposed to create a presumption that, in the absence of clear and convincing evidence showing otherwise, an asset transfer made during the look-back period was for the purpose of decreasing net worth to establish pension entitlement. We proposed that the presumption could be rebutted by clear and convincing evidence that the claimant transferred the asset as the result of fraud, misrepresentation, or unfair business practice related to the sale or marketing of financial products or services for purposes of establishing entitlement to pension. The proposed rule provided that VA would not consider as a transfer for less than fair market value a trust established on behalf of a child whom VA has rated incapable of self-support. The proposed rule provided that VA would not recalculate a penalty period unless the original calculation was shown to be erroneous or VA received evidence, within 60 days after VA notified the claimant of the decision, that all covered assets were returned to the claimant before the date of claim or within 30 days after the date of claim.
Finally, we proposed to define and identify medical expenses that VA may deduct from countable income for its needs-based benefits that utilize such deductions. We proposed definitions of “activities of daily living” (ADLs); “instrumental activities of daily living” (IADLs); “custodial care”; and “assisted living, adult day care, or similar facility.” We proposed to define “custodial care” as regular assistance with two or more ADLs or supervision because an individual with a mental disorder is unsafe if left alone due to the mental disorder. The proposed rule provided that, generally, medical expenses do not include either assistance with IADLs or meals and lodging in an independent living facility. The proposed rule provided that an in-home care attendant's “hourly rate may not exceed the average hourly rate for home health aides published annually” in the Market Survey of Long-Term Care Costs published by the MetLife Mature Market Institute.
For the reasons set forth in the proposed rule and in the discussion below, we are adopting the proposed rule as final, with changes as explained below to proposed 38 CFR 3.261, 3.262, 3.263, 3.270, 3.272, 3.274, 3.275, 3.276, 3.278, and 3.279.
Multiple commenters did not understand various VA benefits and one commenter expressed confusion by our use of the term “needs-based.” As used in this supplementary information, “needs-based” refers to a VA benefit in which the claimant's income is an entitlement factor or both a claimant's
At least one commenter expressed the belief that our proposed rule was proposing to turn benefits that are not needs-based into new needs-based benefits. It is not. This final rule does not apply to VA benefits that are not needs-based. This final rule pertains only to the VA needs-based benefits identified above. The new and revised net worth and asset-transfer rules apply only to current-law pension for veterans and survivors. This benefit is simply called “pension” or “VA pension,” unless it is necessary to distinguish between current-law pension and previous VA pension programs. Also, if it is necessary to distinguish between veterans and survivors, we may refer to the pension programs as “veterans pension” or “survivors pension.”
We note that a number of commenters referred to pension as “Aid and Attendance.” This is a misnomer and can be confusing because a higher “aid and attendance rate” may be payable under all of the following VA benefit programs: Pension, parents' DIC, disability compensation, DIC (for surviving spouses), and death compensation. In addition, a veteran who receives disability compensation may receive additional compensation when the veteran has a spouse and the spousal allowance is higher if the spouse meets aid and attendance criteria. The additional “spousal aid and attendance rate” is available only to certain compensation beneficiaries and is not available to pension claimants. A “housebound rate” that is a lesser amount than the aid and attendance rate may be paid to qualifying individuals who do not qualify at the aid and attendance level. This housebound rate is available to: Veterans and surviving spouses who receive pension; veterans who receive disability compensation; and surviving spouses who receive DIC. The aid and attendance and housebound rates are sometimes collectively called “special monthly compensation (SMC)” when the benefit is disability compensation, “special monthly DIC” when the benefit is DIC, and “special monthly pension (SMP)” when the benefit is pension. We emphasize that this final rule does not apply to disability compensation for veterans or to DIC for surviving spouses or children. It also does not apply to Family Caregiver benefits and General Caregiver benefits authorized by 38 U.S.C. 1720G; those benefits are available to veterans with certain injuries that were incurred in or aggravated in active military, naval, or air service. This final rule only applies to needs-based benefits.
Multiple commenters expressed the belief that, like most pensions, the VA pension benefit is a benefit into which veterans previously paid so it would be available later in life. Others expressed the opinion that VA pension should not be means-tested or that it is or should be available to all veterans. We make no changes based on such comments. Although veterans certainly “pay into” VA pension in terms of serving their country during a period of war, VA pension is not a benefit into which veterans previously directly contributed financially. The statutes governing VA pension are found in 38 U.S.C. chapter 15. Under the current pension statutes, pension is a benefit in which the annual amount of the benefit is reduced dollar-for-dollar by annual income received. See 38 U.S.C. 1521, 1541, and 1542. VA calculates annual income by deducting or excluding (not counting) amounts noted in 38 U.S.C. 1503 and other applicable statutes, such as a portion of unreimbursed medical expenses and educational expenses.
Multiple commenters pointed out that VA no longer considers a veteran's net worth when deciding if the veteran is eligible to receive VA hospital, nursing home, or domiciliary care. For this reason, these commenters state or indicate that net worth should not be a factor for pension entitlement. Moreover, several commenters stated that the proposed provisions would cause fewer veterans to qualify for VA hospital care at Priority Groups 4 and 5. We disagree. The VA statutes governing net worth for pension entitlement (38 U.S.C. 1522 and 1543) are different than those governing net worth for hospital care eligibility (38 U.S.C. 1722). Under 38 CFR 17.36(b)(4), Priority Group 4 includes veterans who receive increased pension based on their need for regular aid and attendance or by reason of being permanently housebound. It also includes veterans determined catastrophically disabled by the VA facility where they are examined. Priority Group 5 includes veterans whom the Veterans Health Administration (VHA) determines are unable to defray the expenses of necessary care under 38 U.S.C. 1722(a). 38 CFR 17.36(b)(5). Although VHA assumes that veterans who receive pension meet Priority Group 5 criteria, veterans are not required to receive pension to qualify for Priority Group 5. To the extent that some veterans might not be entitled to pension under this final rule, this does not mean these veterans would not be entitled to VA hospital care at the same priority. VA must consider net worth as an entitlement factor for pension (38 U.S.C. 1522 and 1543); it does not have discretion in this regard as it does for hospital care eligibility. Therefore, we make no changes based on such comments.
Numerous commenters questioned VA's authority to promulgate regulations governing the requirements for net worth, asset transfers, and income exclusions in order to qualify for VA's pension program. VA disagrees with these commenters and, therefore, does not make any changes to this rulemaking based on these comments. As discussed in the proposed rule, under 38 U.S.C. 1522 and 1543, VA may not pay pension to a veteran or to a veteran's surviving spouse when the corpus of the individual's estate (and a veteran's spouse's estate, if applicable) is such that, under all the circumstances, including consideration of the individual's income and that of the individual's spouse and dependent children, it is reasonable that the individual consume some part of the estate for his or her maintenance prior to receiving pension.
VA's authority here is derived from 38 U.S.C. 501(a), which permits VA to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by VA and are consistent with those laws. VA may administer the Congressionally-created pension program by formulating policy and enacting rules to fill any gap left, implicitly or explicitly, by Congress.
As previously stated, sections 1522 and 1543 require VA to deny or discontinue pension when it is reasonable to require the individual to consume some portion of his or her net worth for personal maintenance. We interpret the statutory requirement that a pension claimant must reasonably consume excessive net worth prior to receiving needs-based pension as precluding pension entitlement to an individual who has sufficient net worth for his or her maintenance (over $123,600, for 2018), transfers assets to get below that threshold, and then applies for VA pension leaving the Government to fund his or her maintenance. The text of the statute makes clear that Congress did not intend for claimants who have sufficient assets for self-support to use the pension program as an estate planning tool, under which they may preserve or gift assets to their heirs and shift responsibility for their support to the Government, at the expense of taxpayers.
Many commenters also pointed out that, in recent years, Congress has failed to implement legislation that would have implemented many of the changes that VA seeks to make in this rulemaking. Such failure does not negate VA's authority to provide reasonable rules in furtherance of Congress's directive for a net worth limitation. 38 U.S.C. 501(a), 1522, 1543. Moreover, VA notes that “unsuccessful attempts at legislation are not the best of guides to legislative intent.”
Multiple commenters took issue with our proposal to use a bright-line net worth limit for pension entitlement. Several commenters argued that a bright-line net worth provision is arbitrary and does not take into account age, disability, life expectancy, rate of depletion of assets, liquidity of assets, normal living expenses for healthy dependents, nursing home status, or medical expenses in relation to income. Some commenters proposed alternative net worth calculation and decision methodologies that included these factors. A number of commenters argued that our proposed changes to net worth provisions will make it more difficult for claimants to qualify for pension, and stated their belief that not as many will qualify, causing individuals more stress during a difficult time. Some stated that claimants would essentially have to deplete their net worth to qualify. Some suggested that VA could make exceptions for veterans who are over age 75.
We make no changes based on these comments. As stated in the preamble of the proposed rule, the way that net worth decisions are made now is often inconsistent and arbitrary.
While net worth determinations will no longer take into account life expectancy, rate of depletion of assets, and other factors, it is that multitude of factors that have resulted in inconsistent, and sometimes unfair, decisions. For example, we have reviewed cases in which elderly claimants with short life expectancies have been denied pension with as little as $10,000 of net worth. We have seen claims processors deny pension if assets are projected to last the claimant's lifetime or longer, and others require complete or almost complete spend-down of net worth before granting pension. Accordingly, we decline to create an exception for claimants over 75; in fact, we believe that more pension claims will be granted under these regulations than under the previous regime.
Instead, we believe the best approach moving forward, for both pension claimants and the efficiency of the system, is employing, as the net worth limit, the standard maximum CSRA prescribed by Congress. We have considered the possibility of finding a solution within the current standard, as well as other solutions commenters set forth, but many of them, such as establishing upper and lower limits, would be less favorable to claimants than a net worth limit at the maximum CSRA. We believe that setting the net worth limit at the maximum CSRA—which in 2018 is $123,600—allows more claimants to qualify for the benefit than before. Our impact analysis concurrent with the proposed rule indicated that 1,149 pension denials would have been grants (and only 40 grants would have been denials) if the maximum CSRA had been the net worth limit in fiscal year 2014.
We understand, as many pointed out, that the CSRA was prescribed by Congress for Medicaid, which is a fundamentally different program than VA pension. But it is a number that was adopted by Congress to prevent the impoverishment of the non-institutionalized spouse of a Medicaid-covered individual. Similarly, we do not desire any net worth limitation that could subject wartime veterans and
Multiple commenters stated that VA's proposal to establish the bright-line net worth limit by using the CSRA prescribed by Congress for Medicaid was out of context,
To be clear, these programs are governed by different statutes and serve different purposes. VA pension is a monetary benefit paid to wartime veterans and survivors to supplement their income, based on need. On the other hand, Medicaid is a health insurance program for individuals and families with low income and limited resources. As such, incorporating all of Medicaid's net worth rules into the VA pension program is neither legally required nor sensible. But, because Congress has established a level of net worth sufficient to avoid “impoverishment” in administering Medicaid, we find it sensible to employ that Congressional determination for VA pension. Similarly, as further discussed in the proposed rule and later in this supplementary information, we find it sensible to take aspects of the look-back period implemented in Medicaid (per GAO's recommendation) to form a look-back period.
Thus, though we reviewed these comments on Medicaid and made changes in this final rule in response to some of them, we disagree with the comments above that highlighted favorable Medicaid policies, as they overlooked particular rules of VA pension that are also favorable to claimants. For instance, although VA does not pay for medical expenses as Medicaid does, VA does deduct unreimbursed medical expenses that exceed 5 percent of the maximum annual pension rate (MAPR) allowed by Congress, to reduce income for VA purposes. Overall, we did not intend in our proposed rule to equate all aspects of VA pension to Medicaid, or to mimic other aspects of Medicaid provisions, and there is no legal requirement that any particular Medicaid policies or procedures be incorporated into VA pension.
Several commenters stated that the proposed regulations fail to provide for a maintenance income and an asset allowance, as well as an exception for a divestment of gifts and conversion of assets for a community spouse such as those provided by Medicaid rules, and these omissions are likely to result in the impoverishment of community spouses. Several commenters also stated that, under 38 U.S.C. 1522, VA is required to take into account “all the circumstances” of a veteran and a veteran's family in evaluating annual income and other real and personal property. Commenters stated or implied that the failure of current regulations, as well as the proposed regulations, to provide for the maintenance needs of a community spouse arguably violates VA's duty to consider “all the circumstances” in determining whether it is “reasonable” that some part of an institutionalized veteran's estate should be consumed for the veteran's maintenance.
VA makes no changes based on these comments. By selecting the maximum CSRA as the net worth limit and deducting payments for institutionalized care from net worth, we strongly disagree that these regulations do not take into account the needs of community spouses. Indeed, in this final rule, as discussed below, VA has expanded its net worth deductions for payments to care facilities other than nursing homes to ensure that “all the circumstances” are considered for situations where the veteran can no longer live at home. Succinctly stated, while the regulations adopted herein might depart from specific Medicaid rules—as a program with a different purpose is permitted to do—they do not leave community spouses unprotected from impoverishment.
One commenter also mentioned that VHA's net worth provisions at 38 CFR 17.111 do not take into account the amount of the maximum CSRA when determining whether a veteran is required to pay a co-payment for VA-provided extended care services. We make no change based on this comment. Noted above in the information pertaining to terminology clarifications, the VA statutes governing net worth for pension entitlement are different from those governing VA hospital care eligibility. Although VA no longer considers net worth when determining a veteran's eligibility for VA hospital care, VA is required to consider net worth when determining pension entitlement. 38 U.S.C. 1522, 1543.
Some commenters said that the bright-line net worth limit does not take into account future increases in costs of care or inflation. To the contrary, proposed and final § 3.274(a) provide for cost-of-living increases in the net worth limit to account for inflation.
Another commenter stated that, if a claimant's deductible medical expenses exceed the claimant's income, the net worth limit does not take this into account. As further discussed below, however, medical expenses affect net worth in two ways: First, a claimant's predictable medical expenses are subtracted from countable income; second, the actual payment of the medical expenses will (other things held constant) reduce assets. Thus, medical expenses exceeding income do affect net worth.
Other commenters noted that the bright-line net worth limit does not take locality differences into account. We first note that the statutory MAPRs under 38 U.S.C. 1521, 1541, and 1542 are fixed and not adjusted by locality. Second, we believe that, in choosing as our net worth limit the maximum CSRA ($123,600 in 2018) rather than the minimum CSRA ($24,720 in 2018) or any amounts within this range, we have adequately accounted for different
Several commenters asserted that our proposed rule regarding the bright-line net worth limit contained faulty reasoning in stating that “current rules require development of additional information not solicited in the initial [pension] application.” 80 FR 3842. These commenters pointed out that having insufficient forms is a reason to change forms, not rules. Some of these commenters proposed alternative net worth decision methodologies and form modifications. While their point that rules need not be changed for a problem with forms is certainly valid, our desire to establish a bright-line limit has less to do with forms and more to do with consistency, uniformity, and clarity, as discussed above. Moreover, although some commenters stated that neither pension application nor development forms request information regarding living expenses, a claimant's completion of VA Form 21–8049, Request for Details of Expenses, has been an administrative requirement in order for claims processors to make net worth determinations. Among other things, this form includes monthly living expenses such as housing, food, utilities, clothing, and education. The information requested on this form will no longer be necessary for net worth determinations under this final rule. We further note that VA is amending application forms in conjunction with this final rule to incorporate information previously received on the VA Form 21–8049, as well as other information.
One change that we are making is to the example in proposed § 3.274(b)(4). The final rule uses a more current number (the maximum CSRA for 2018) for the net worth limit and eliminates superfluous language.
One commenter noted that proposed § 3.274(f)(1) is overly restrictive in providing that assets could only decrease by spending them on “[b]asic living expenses” or educational or vocational rehabilitation. As proposed, the rule could be read to preclude expenditures for items such as vacations, televisions, and sprinkler systems. We agree, and, therefore, we are withdrawing proposed § 3.274(f)(1)(i) and (ii) and revising § 3.274(f)(1) to provide that a claimant may decrease assets by spending them on items or services for which fair market value is received. A claimant could not, of course, spend down assets by purchasing an item whose value VA would still include as an asset—such as a $50,000 painting or gold coins—and this final rule so states. Although a claimant can certainly purchase a $50,000 painting or gold coins, the value of the painting or coins would still be included as an asset. Final paragraph (f)(1) is significantly more liberal than proposed paragraph (f)(1). We note here that, in general, VA does not require receipts or other proofs of purchase to show decreased assets, although it is permitted to request them under 38 U.S.C. 1506(1).
Due to this change and based on our further administrative review, final § 3.274(f) does not include proposed paragraph (f)(3). Proposed paragraph (f)(3) was a provision that erroneously stated that VA would “deduct” certain expenses from assets. VA does not deduct the value of future expenses from current assets when determining asset values; rather, VA deducts projected unreimbursed medical expenses from income when the medical expenses are reasonably predictable. Therefore, for example, if a claimant's net worth exceeds the net worth limit in a given year even though projected medical expenses have reduced income to zero, the actual payment of these medical expenses the next year may cause assets to decrease and the claimant to then qualify for pension.
We renumbered proposed paragraphs (f)(4) and (5) as final paragraphs (f)(3) and (4), respectively. We also amended the text of final paragraphs (f)(3) and (4) to reflect the clarification discussed above.
Multiple commenters criticized proposed § 3.275(a)(3), claiming that the definition of “residential lot area” is too restrictive by limiting the lot area to 2 acres (87,120 sq. ft.). Many commenters stated that claimants living in rural areas would be unfairly penalized because of zoning and other restrictions which would prevent them from being able to sell the excess land. VA disagrees because the definition of “residential lot area” includes the provision that the lot cannot exceed 2 acres unless the additional acreage is not marketable. The additional property might not be marketable if, for example, the property is only slightly more than 2 acres, the additional property is not accessible, or there are zoning limitations that prevent selling the additional property. Therefore, lot sizes that exceed 2 acres may still be excluded from the claimant's asset calculation if the additional property is deemed unmarketable. However, VA recognizes that the proposed provision that lots must be “similar in size to other residential lots in the vicinity of the residence” may be unnecessarily restrictive for claimants with less than 2 acres, but more acreage than their neighbors. Therefore, the final rule does not include the “similar in size to other residential lots in the vicinity” requirement.
Several commenters interpreted the proposed rule to mean that VA would require claimants to sell their residences and/or their land if the residential lot area was greater than 2 acres. We note that when a claimant's residential lot is greater than 2 acres, VA will still exclude the value of the residence and 2 acres worth of property from the claimant's assets. VA is not requiring claimants to sell either their residence or land. VA will only include the value of the additional property in the asset calculation.
One commenter stated that the 2-acre limit would cause claimants to sell their land, which would lead to more development, thus endangering wildlife and harming the environment. As noted above, VA is not requiring any claimant to sell his or her land, nor can we speculate on whether a claimant might do so or for what purpose the land might be used. The concern has been taken into consideration, but we make no change to the final rule based on the comment.
One commenter stated that the rule does not address treatment of property listed for sale. VA excludes the value of the primary residence from net worth (and includes the value of other residences) regardless of whether or not the property is listed for sale. We make no change based on this comment.
Several commenters noted that it is already VA policy to exclude from net worth a claimant's residence and a reasonable lot area and did not agree with VA's decision to place a limit on the lot area VA considers reasonable. As stated in the proposed rule, the limit supports our policy choice to exclude a claimant's primary residence from assets, while at the same time placing a reasonable limit on excluded property to preserve the pension program for veterans and survivors who have an actual need. We make no changes based on such comments.
Many commenters questioned why the residential lot exclusion is based on acreage rather than value. VA clarifies that the purpose of using acreage instead of value is so that claimants who live on small, but valuable land (regardless of what that value is derived from) are not penalized. For example, a claimant could live in a small, meager
One commenter asked if VA claims adjudicators would require claimants to provide property deeds or other evidence to determine lot size. Under 38 CFR 3.277(a), claims adjudicators always have a right to request that a claimant submit evidence to support entitlement to a benefit. We make no change based on this comment.
Many commenters questioned why proposed § 3.275(b) included the provision that “[i]f the residence is sold, any proceeds from the sale is an asset except to the extent the proceeds are used to purchase another residence within the same calendar year as the year in which the sale occurred.” These commenters stated that it is unreasonable to expect claimants to sell a residence and buy a new one in the same year, especially if the sale occurs toward the end of the year. Although we understand their point, 38 U.S.C. 5112(b)(4) requires that changes in net worth be recognized at the close of the calendar year in which the change occurred, and we make no change based on these comments. We note that this provision only applies to home sales after pension entitlement is established. The final rule makes this clear by providing that it only applies “[i]f the residence is sold after pension entitlement is established.” If the residence is sold at any time before the date of claim,
For residential sales after pension entitlement is established, the rule provides that the residences need to be sold and purchased within the same calendar year because 38 U.S.C. 5112(b)(4) provides that the effective date of reduction or discontinuance of pension due to a change in net worth is the end of the year in which net worth changes. Therefore, for example, if an individual is receiving pension and in July 2017 receives proceeds from the sale of a residence which make net worth excessive, the statutory effective date of discontinuance is December 31, 2017, and VA would discontinue pension as of January 1, 2018. However, if the claimant spends down the funds or purchases another residence before the effective date, VA would not discontinue pension. We understand and recognize the disparity between a person who sells his or her residence in January, for example, versus a person who sells his or her residence in December. However, we are bound by the effective date statute. We note that if an individual sells his or her residence in December 2017, and spends down the net worth or purchases a new residence in February 2018, VA would discontinue pension as of January 1, 2018, and resume pension as of March 1, 2018, assuming entitlement factors continue to be met and the claimant informs VA of the spend-down or purchase before VA's decision regarding the discontinuance becomes final. Of course, these examples assume that the sale of the residence makes net worth excessive; not all residential sales would result in discontinuance.
One commenter stated that the rule is unfair to those who choose to rent—rather than purchase another home—after selling their residence. Others commented more generally that rent (to a care facility or otherwise) should be deducted from net worth. To the extent there is a concern about the effect of selling a residence in order to move into a nursing home or other care facility, we believe that our changes to the deductible medical expense provisions, described below, will alleviate much of this concern. Under final § 3.278(d), amounts paid to a care facility for lodging will often be considered a medical expense, deducted from income pursuant to 38 U.S.C. 1503(a)(8). However, as to the request to deduct other rent payments from net worth, we are unaware of any statutory authority for doing so. While we are continuing our longstanding policy of excluding the value of primary residences from
One commenter asked that a definition of “proceeds from the sale” be included. To alleviate any confusion, the final rule refers to “net proceeds from the sale.” We believe this change adequately addresses the commenter's concern. The definition is readily available from many sources. The term net proceeds refers to the amount of money a seller receives from the sale. It is the sales price of the residence minus selling costs. Net proceeds do not include payoff of existing mortgages or fees such as brokerage commissions and closing costs.
One commenter believed that VA's asset calculation methodology was not explained in detail in the proposed regulation. We disagree; proposed and final §§ 3.274 and 3.275 address the types of assets included and excluded in an asset calculation, VA generally accepts the statements of its claimants regarding assets unless there is reason to question them, and VA does not plan to change this practice.
One commenter seemed to have misunderstood proposed § 3.275(b)(1)(i), which provides that VA will not subtract from a claimant's assets the amount of mortgages or other encumbrances on a claimant's primary residence. We clarify here that VA excludes a claimant's primary residence from assets, regardless of the value of the residence. Section 3.275(b)(1)(i) simply means that VA does not subtract mortgages and encumbrances on a primary residence from other assets. For example, assume a claimant owns a primary residence worth $100,000, still owes $20,000 on the residence, and the claimant's only other asset is a $50,000 bank account. Assets for VA purposes would total $50,000 because we exclude the primary residence and do not subtract the mortgage on a primary residence from other assets. Under § 3.275(a), mortgages and encumbrances specific to the mortgaged or encumbered property (that is not the primary residence) are deducted from the value of the property. One commenter relatedly questioned the treatment of liens on a property. Liens qualify as encumbrances. We make no change based on these comments.
Some commenters questioned why the income and assets of any child living in the primary residence must be considered as included in an applicant's net worth. Others stated that VA should not bar a veteran's pension because of a child's net worth, to include an inheritance or job income. We make no change based on these comments because we believe statute governs this issue. Under 38 U.S.C. 1521(h)(1) and 1541(g), a veteran's or surviving spouse's income generally includes a
One commenter believed that a veteran's assets should not include the assets of his or her spouse if the spouse and the veteran do not reside together. Again, this issue is addressed by statute and we make no change based on this comment.
Another commenter stated that a surviving child's assets should not include the assets of his or her guardian. We make no changes based on this comment because, by statute, the assets of an individual are included when the child is residing with the individual and the individual is legally responsible for the child's support.
One commenter believed that assets should not include personal property. We make no changes based on this comment because most general definitions of assets include personal property. We note that, under proposed and final § 3.275(b)(2), VA does not include as an asset the value of personal effects suitable to and consistent with a reasonable mode of life, such as appliances and family transportation vehicles. We further note that this provision is not a change from past practice.
Another commenter stated there should be a clear and defined difference between net worth and liquid net worth. The commenter seemed to believe that VA bases its pension entitlement decisions on liquid assets alone. Normally, we think of a liquid asset as a cash asset or an asset that can easily be converted to cash. Real estate and other types of personal property are considered to be non-liquid assets. Save certain exceptions discussed in this preamble and noted in the final rule, VA does not distinguish between liquid and non-liquid assets when making pension entitlement determinations. A claimant who has $50,000 in a bank account and a claimant who owns property worth $50,000 (that is not his or her primary residence) are both considered to have $50,000 in assets. VA generally accepts as true a claimant's statement regarding the value of his or her assets in the absence of conflicting information. We make no changes based on the comment.
Multiple commenters complained that VA is counting income twice: Once for its net worth determinations and again in the calculation of the pension entitlement rate. Although we are sympathetic with this concern, we are again bound by the pension statutes, and thus make no changes. Sections 1522 and 1543 of 38 U.S.C. require VA to consider the amount of claimants' and certain dependents' income when making net worth determinations. Sections 1521, 1541, and 1542 of 38 U.S.C. then require VA to reduce the MAPRs by the annual income of the claimant and certain dependents. One commenter asked us to provide additional justification; however, we decline to do so because we believe the statute is sufficient. We re-emphasize that a claimant's reasonably predictable projected unreimbursed medical expenses can be deducted from income when calculating a claimant's net worth. Therefore, for many claimants who are paying in-home care or facility expenses for themselves or a dependent, the income component of net worth will be zero, and this issue will not be a concern.
Some commenters appeared to believe that total net worth would have to be spent on the applicant's needs in order to obtain pension, leaving nothing for the needs of the surviving spouse (and child) in the future. As clarified above, a child is not required to consume his or her assets for a parent to qualify for pension. 38 U.S.C. 1522(a) and 1543(a). And, again, we have chosen a net worth limit for pension that enables a claimant to retain a reasonable portion of assets to respond to unforeseen events.
One commenter suggested that the proposed rule makes no provision for small business owners or farmers who own property and have to liquidate assets to provide income for themselves and employees. The commenter questions how small business assets will be calculated if they are sold to pay employees. We believe that our definition of “fair market value” covers such a situation and make no change based on the comment. Although an individual might sell an asset for less than its appraised value, depending on the circumstances and in the absence of information showing otherwise, VA could consider such a sale to be a transfer for fair market value and would consider the net proceeds from the sale to be an asset. Distribution of the net proceeds to employees would then decrease that individual's assets.
A commenter asked: If VA determines the need to re-evaluate net worth based on a matching program with the Internal Revenue Service (IRS), how will VA know what unreimbursed medical expenses exist for the many elderly individuals who do not file income taxes? In response to this commenter, at the time a veteran or survivor applies for VA pension, VA uses a claimant's projected unreimbursed medical expenses to calculate the claimant's pension entitlement rate as long as the claimant reports the expenses and the expenses are reasonably predictable. It is the claimant's responsibility to keep VA informed at all times of any changes that affect continued entitlement.
A commenter noted that this rulemaking does not address how VA would treat real property held as a life estate. The commenter asked how VA would treat a life tenant's primary residence if the residence is sold and suggested that VA adopt the IRS's valuation of life estates. Because the proposed rule did not address the treatment of life estates, we are concerned that addressing this issue in the final rule would deprive interested parties the opportunity to meaningfully comment on any related proposal. VA will consider whether to address this issue in a future rulemaking. However, VA is unable to make any changes to this rulemaking based on these comments.
In the preamble of our proposed rule, we included an explanatory derivation table to summarize the rather complex effective dates pertaining to net worth.
Multiple commenters expressed that certain types of trusts and annuities should not be included in the definition of “transfer for less than fair market value.” We agree that certain annuities and trusts should not be included as a transfer for less than fair market value. Thus, based on a number of comments discussed below, we are revising § 3.276(a)(5)(ii) to provide that a transfer for less than fair market value means a voluntary asset transfer to, or purchase of, any financial instrument or investment that reduces net worth by transferring the asset to, or purchasing, the instrument or investment unless the claimant establishes that he or she has the ability to liquidate the entire balance of the asset for the claimant's own benefit. We also provide that, if the claimant establishes that the asset can be liquidated, the asset is included as net worth.
First, some commenters misunderstood proposed § 3.276(a)(5)(ii), believing that a transfer to any revocable or irrevocable trust would be considered a transfer for less than fair market value. We want to be clear that transfers to annuities or trusts over which a claimant retains control and the ability to liquidate are transfers for fair market value under this final rule and are not subject to a penalty period. Annuities and trusts that can be liquidated for the benefit of the claimant will instead be considered as an asset in net worth calculations. Of course, we would not require claimants to liquidate their assets; we simply would not consider funds over which a claimant still has complete control to have been transferred for less than fair market value. Such funds are assets.
Second, several commenters noted that some transfers to annuities are mandated upon retirement. The conversion of deferred accounts to an immediate annuity is required under some retirement plans. We concur with these comments and final § 3.276(a)(5)(ii) excludes mandatory conversions. This means that we will not count, as a covered asset, the amount transferred to such an annuity, although distributions from the annuity will continue to count as income.
Third, a commenter asked us to explain why annuities and trusts are included in proposed § 3.276(a)(5)(ii) as “any financial instrument or investment that reduces net worth and would not be in the claimant's financial interest.” The commenter asked us to explain why annuities and trusts are not in the financial interest of the claimant. We agree that this language is confusing and would be difficult to apply, and it has been removed.
Fourth, one commenter requested we explicitly exclude implied trusts from the definition of a trust by replacing the word “arrangement” in § 3.276(a)(5)(ii)(B) with the word “instrument.” We agree with this comment, and the final rule uses the word “instrument” as suggested.
Several commenters asked why VA seemed to be singling out annuities and further pointed out that bank accounts and stocks are sometimes unwise investments for seniors. As noted in the proposed rule, annuities and trusts are simply two examples of instruments that could possibly be used to restructure a claimant's assets to make it appear that the claimant's net worth is less than it is. This rulemaking is not an attempt to eradicate all unwise investments undertaken by seniors; it is an effort to discourage those who are financially secure from transferring assets to qualify for VA pension. Asset transfers to stocks, bonds, or bank accounts do not reduce net worth at the time of transfer.
One commenter questioned why establishing a trust or annuity was considered a “less than fair market value” transfer. That commenter also stated that veterans should not be penalized for establishing trusts or annuities for purposes not related to VA pension. Our response is two-fold. First, these instruments are considered transfers of less than fair market value because they are the primary tools of the over 200 organizations identified by the GAO as manipulating assets to reduce a claimant's net worth.
Many commenters thought that establishing a trust and/or annuity under the proposed regulation would always result in a penalty period. As
Several commenters expressed confusion regarding how VA would value an annuity. We believe the changes above clarify the issue. If an annuity cannot be liquidated, then the annuity is not considered an asset; however, distributions from the annuity count as income (as further discussed below) and the purchase could warrant a penalty period. If the annuity can be liquidated for the claimant's benefit, the annuity purchase is included as an asset.
One commenter stated that the purchase of an immediate annuity meets the definition of an installment sale. VA's current procedure manual defines an installment sale for pension purposes as any sale in which the seller receives more than the sales price over the course of the transaction. However, there are different types of annuity plans, and the seller (annuitant) might not receive more than the sales price over the course of the transaction, for example, if the plan terminates payments upon the seller's death. Although the commenter draws this comparison to an installment sale in furtherance of his argument that annuity payments should not be treated as income, Congress has spoken explicitly on the question of whether annuity payments are income, as further discussed below.
Some commenters noted that § 3.276 does not provide a specific exemption for purchase of burial policies or planning for funeral and final expenses. VA would regard the purchase of a burial policy as a fair market value purchase. In addition, VA deducts from income certain family members' final or burial expenses. 38 U.S.C. 1503(a)(3)-(4); 38 CFR 3.272(h). We make no change based on these comments.
Many commenters expressed concerns with the presumption and the “clear and convincing” standard of evidence VA proposed in § 3.276(c).
Multiple commenters requested that we expand the trust exception to children disabled after age 18, as well as children of the surviving spouse (and not the veteran). We decline to do so. Statute defines “child” for VA purposes to include children of the veteran who became permanently incapable of self-support before their 18th birthday, not after.
One commenter expressed the belief that the exception should apply where distributions from the trust to a veteran or spouse are used for care rendered to the incapable child, shelter, and other expenses. We have considered the suggestion, but ultimately believe that the language of proposed § 3.276(d)(2) more precisely executes the goal of this limited exception. Therefore, no change is warranted.
Some commenters stated that VA should overturn a VA precedential General Counsel opinion, VAOPGCPREC 33–97, to conform to special needs trust laws at 42 U.S.C. 1396p(d)(4)(A) and (C). VA declines to make any changes based on this comment. The statute cited by the commenters pertains to the treatment of certain special needs trusts under SSI law. The statute does not apply to VA. Another commenter asked that VA “exempt” transfers to any trusts allowed under SSI law. As explained above and in the supplementary information to the proposed rule, SSI employs a significantly lower net worth limit than VA will be using and VA need not implement the exact same limits and exceptions as other needs-based programs governed by separate statutes.
Multiple commenters requested that we provide a general hardship exclusion. One commenter noted that there are times when individuals sell assets under market value because they have to find liquidity and a means of meeting their obligations. We interpret this comment to mean that if, for example, an individual had property appraised at $10,000, the individual might be required to sell the property for $6,000 because no buyer could be found to purchase the property at the appraised value. We believe that our definition of “fair market value” would adequately cover this situation, and VA would consider such a sale to be a transfer for fair market value. More generally, VA does not agree that a
Multiple commenters pointed out an error in our proposed penalty period calculation that resulted in significantly longer penalty periods for surviving spouses and surviving children as compared to veterans, as well as longer penalty periods for single veterans as compared to married veterans. Many commenters stated that the proposed penalty period was discriminatory and violated the Constitution. We proposed to use a claimant-specific MAPR as a divisor when calculating a claimant's penalty period. We agree that our proposal would have produced unfair and undesirable results and are grateful to all of those who identified this error. We have amended proposed § 3.276(e); final § 3.276(e)(1) uses a single divisor for all claimants, which will result in equal penalty periods for equal amounts of precluded asset transfers regardless of the type of claimant. The single divisor is the MAPR in effect on the date of the pension claim at the aid and attendance level for a veteran with one dependent. As stated in the proposed rule, we divide that amount by 12 and drop the cents. We chose this rate because most of VA's pension claimants qualify at the aid and attendance level and because a higher divisor results in a shorter penalty period. The penalty period calculation example at final § 3.276(e)(4) reflects the single divisor. One commenter asked the purpose of using the benefit amount to calculate the penalty period. Although the commenter was possibly referring to our mistake in using the claimant-specific MAPR for penalty period calculations, we note that the purpose of the penalty period calculation is to approximate the number of months that a claimant could have used the assets for his or her own needs rather than disposing of them.
Many commenters wrote that a penalty period of up to 10 years is excessive, essentially resulting in a “permanent” denial for most claimants due to their age and life expectancy at the time of application. Some commenters suggested that VA set a maximum of 36 months as the penalty period. Based on the comments we received, we decided to shorten the maximum penalty period to 5 years. Under proposed and final § 3.276(e)(2), a penalty period begins on the first day of the month that follows the last asset transfer. Therefore, having a maximum 36 month penalty period would result in no penalty if the asset transfer occurred 3 years before the date of the pension claim. Instead, we think a 5 year maximum provides the appropriate balance of protecting the integrity of the pension program, while avoiding the “permanent” denials that could have resulted with a 10-year maximum penalty, given the age of many pension claimants. We further emphasize that, under proposed and final § 3.276(e), only that portion of assets that would have made net worth exceed the bright-line limit is subject to penalty. We appreciate the public comments on this issue.
Numerous commenters requested that the time limit for curing asset transfers be amended and that VA allow partial cures. We agree that our proposal did not allow adequate time to cure asset transfers and did not allow enough time for claimants to notify VA of the cure. We also agree that partial cures are acceptable and should constitute a basis for recalculation. We have amended proposed § 3.276(e)(5) to allow claimants 60 days following a penalty period decision notice to cure or partially cure a transfer and allow 90 days following a penalty period decision notice to notify VA of the cure. We are grateful to all of those who suggested these changes.
Several commenters asked why we are making changes regarding asset transfers when the impact analysis for the proposed rule stated that only 1 percent of claimants transfer assets. VA is making these changes to protect the integrity of the pension program and to counteract the hundreds of organizations targeting elderly veterans and spouses with financial schemes that wrest away these individuals' own assets for the promise of qualifying for VA pension.
Multiple commenters expressed concern that the asset transfer provisions would be applied retroactively. In order to ease this concern, paragraphs (a)(7) and (b) of final § 3.276 explicitly state that VA will not “look back” to a time before the effective date of the final rule. VA will disregard asset transfers made before that date.
One commenter stated that claims are already being denied under these asset-transfer provisions. We are unaware of such cases; however, we note that VA's previous asset-transfer provision at 38 CFR 3.276(b) did state that VA would not regard certain asset transfers as a reduction of net worth. For example, VAOPGCPREC 33–97, mentioned above, states that VA should include trust assets in net worth calculations if the trust assets are available for use for the claimant's support. This applied to pre-claim transfers as well, although 38 CFR 3.276(b) did not so state. This would also be true under this final rule and we make no change based on the comment.
Many commenters were concerned that any transfer of assets such as a gift to family members or charitable donations would cause VA to impose a penalty period. Not all gifts and charitable donations are prohibited or will result in a penalty period. Only when assets are transferred or gifted during the 3-year look back period, and the asset would have caused or partially caused net worth to be excessive, will a penalty period, not to exceed 5 years, be calculated based on the portion of the transferred assets that would have made net worth excessive. For example, a veteran gives $90,000 to charity one year before she claims VA pension, and she has $10,000 remaining in a checking account. Because the $90,000 amount transferred would not have made net worth excessive, no penalty period is assessed. Again, we expect the asset transfer changes will affect a very small portion of pension claimants, while bolstering the integrity of the program.
Multiple commenters expressed concern that a look-back period would delay claims processing and would create undue stress and hardship if claimants have to provide VA with 3 years' worth of bank statements and other documentation. VA generally will not require 3 years' worth of documentation from claimants, but will only require additional documentation
One commenter asked how VA would determine the uncompensated value of an asset under § 3.276, and who within VA will make these determinations. The commenter also wanted to know if VA will conduct application review conferences like Medicaid, and if so, who will conduct the conferences. VA has no plans to conduct application review conferences under this final rule. Rather, VA adjudicators will render determinations on value based on the best available information, though they will generally accept, as true, statements that claimants make on their application forms, unless there is reason to question the statements. We make no change based on the comment.
One commenter stated that VA does not have educated staff members who are able to estimate property values and that the rulemaking gives VA claims processors the ability to approve or disapprove pension claims based on the claims processor's personal assumption of value. We disagree. Final § 3.276(a)(4) defines “fair market value” as the price at which an asset would change hands between a willing buyer and willing seller who are under no compulsion to buy or sell and who have reasonable knowledge of relevant facts, and further states that VA will use the best available information to determine fair market value, such as inspections, appraisals, public records, and the market value of similar property, if applicable. We believe the final rule makes it clear that VA does not rely on the personal assumptions of a claims processor to value assets and, as previously mentioned, claims processors have the authority, under 38 U.S.C. 1506 and 38 CFR 3.277(a), to request additional information when a claimant's estimate of property values is suspect. VA declines to make any changes based on the comment.
One commenter took issue with our proposal to use the best available information to determine fair market value, such as inspections, appraisals, public records, and market value of similar property, if applicable. The commenter apparently interpreted this to mean that VA would be hiring third parties to provide such information. This interpretation is not accurate, and VA has no intention of hiring non-governmental employees to research property values. As indicated above, the use of independent sources to assist VA in determining asset values, when necessary, is longstanding VA policy authorized by statute and regulation, and no change is warranted based on the comment.
One commenter stated that applicants for DIC should not have to disclose asset transfers on VA Form 21P–534, Application for Dependency and Indemnity Compensation, Survivors Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable). The commenter also expressed belief that DIC and survivors pension applications should be separate forms. As stated above, in the information regarding needs-based benefits, this final rule applies only to needs-based benefits; and DIC for surviving spouses and children is not a needs-based benefit. We also understand the commenter's view that DIC and survivors pension should be separate applications; however, 38 U.S.C. 5101(b)(1) provides that, for surviving spouses and children, a claim for DIC must also be considered a claim for survivors pension, and a claim for survivors pension must also be considered a claim for DIC. (Either claim must also be considered a claim for accrued benefits.) Accordingly, we make no changes based on this comment.
One commenter noted our mistake in the preamble of the proposed rule, with respect to the beginning date of the penalty period. In the preamble, we said, “[u]nder proposed § 3.276(e)(2), the penalty period would begin on the date that would have been the payment date of an original or new pension award if the claimant had not transferred a covered asset and the claimant's net worth had been within the limit.” 80 FR 3849. This was an error because proposed § 3.276(e)(2) actually provided that the penalty period would begin on the first day of the month that follows the date of the last transfer. 80 FR 3861. No changes are necessary in this regard because the proposed regulatory text correctly stated the rule and is more advantageous to claimants than the erroneous preamble statement.
We received almost 300 comments that pertained to our proposed medical expense provisions. Many predicted dire consequences if the proposed regulations were to be implemented, including forcing claimants into nursing homes and onto Medicaid, thus increasing costs to taxpayers, creating unfunded mandates to States, affecting small businesses (such as care facilities), and forcing seniors to avoid seeking care or taking prescribed medications due to lack of affordability. Based on some of these comments as well as our own internal administrative review, this final rule reflects a number of changes from the proposed rule that we believe will allay most, if not all, of the commenters' concerns.
Statute permits VA to deduct amounts paid by a veteran, veteran's spouse, or surviving spouse or by or on behalf of a veteran's child for unreimbursed medical expenses, to the extent that such amounts exceed 5 percent of the maximum annual rate of pension (including any amount of increased pension payable on account of dependents, but not including any amount of pension payable because a person is in need of regular aid and attendance or because a person is permanently housebound) payable to such veteran, surviving spouse, or child.
Neither statute defines “medical expenses.” As we mentioned in the preamble of the proposed rule, there is currently no regulation that adequately defines “medical expenses” for VA purposes—
We received many comments pertaining to our definitions of various terms, including custodial care, health care provider, ADLs, and IADLs. We first defined a health care provider to mean an individual licensed by a State or country to provide health care in the State or country in which the individual provides the health care, as well as a
Numerous commenters urged us to expand our definition of ADLs. Some commenters suggested that we use the definition of ADLs from the Medicare Benefit Policy Manual which is referenced in Fast Letter 12–23. The Medicare Benefit Policy Manual, which provides that custodial care is not covered under Medicare, describes activities of daily living as including, for example, “assistance in walking, getting in and out of bed, bathing, dressing, feeding, and using the toilet, preparation of special diets, and supervision of medication that usually can be self-administered.” Medicare Benefit Policy Manual, Chapter 16—General Exclusions from Coverage,
Several commenters asked us in particular to define “handling medications” as an ADL instead of an IADL. Although we decline to do this, we note here that there is a difference between “medication administration” and other sorts of assistance with taking medications such as medication reminders. Medication administration, if performed by a health care provider, would be a health care expense under § 3.278(c)(1). A medication reminder from a provider who is not a health care provider would not be a medical expense unless the individual requires custodial care and the provisions of final § 3.278(d) apply.
Many commenters also urged us to include IADLs in the definition of ADLs or, similarly, to include IADLs alone as medical expenses. We note that the final rule liberalizes the circumstances in which payment for assistance with IADLs constitutes a medical expense, as discussed below. We believe this obviates the commenters' concerns without the need for changing definitions in this regard. We have, however, made one change to our list of IADLs based on our further administrative review. In the proposed rule, we proposed to exclude as an IADL, and as a medical expense under proposed paragraph (e)(5), fees paid to a VA-appointed fiduciary.
We received a number of comments regarding our definition of “custodial care” and we have made changes. The commenters believed that the proposed rule unfairly excluded, as a medical expense, payments for the care of individuals with dementia. Many of these commenters said that such individuals would no longer qualify, because they may not require assistance with two ADLs. Other comments stated that physical disorders should be included. We agree. Final § 3.278(b)(4)(ii) includes physical, developmental, and cognitive disorders along with mental disorders.
Further, we received several comments from individuals who were concerned that the language used in proposed § 3.278(b)(4)(ii) (requiring “regular . . . [s]upervision because an individual . . . is unsafe if left alone”) was too limiting. These commenters seemed to read the proposed rule to say that the disabled individual could never be left alone under any circumstances. To avoid such misunderstandings, final § 3.278(b)(4)(ii) now includes supervision “to protect the individual from hazards or dangers incident to his or her daily environment,” the same phrase used in 38 CFR 3.352(a).
On that point, several commenters appeared to confuse the purpose of proposed § 3.278 with the purpose of 38 CFR 3.351 and 3.352(a). One commenter stated that proposed § 3.278 conflicts with and “amends” § 3.352. To be clear, §§ 3.351 and 3.352(a) provide the criteria for determining whether an individual is housebound, or requires aid and attendance, as well as the compensation or pension rate to apply; those regulations apply to both needs-based and non-needs-based benefits, and do not address income calculations or deductions. The purpose of § 3.278 is quite different because it describes medical expenses that can be deducted from income for pension, parents' DIC, and section 306 pension. (These are the only VA needs-based benefits for which deductible medical expenses may be used to reduce income.) Because the purpose of § 3.278 differs from that of §§ 3.351 and 3.352(a), it is not essential for § 3.278 to precisely mirror §§ 3.351 and 3.352(a). Nevertheless, there is some value in consistent terminology across part 3, and the changes in this final rule to proposed § 3.278(b)(4)(ii) provide that.
One commenter believed that needing regular assistance with only one ADL could constitute custodial care. We make no change based on this comment. We continue to believe that two ADLs is appropriate, particularly given the fact that we have expanded the definition of ADLs to include an additional ADL and have added additional types of disorders to the definition of custodial care. The final definition of custodial care, § 3.272(b)(4), is regular (i) assistance
Multiple commenters discussed the wide variation among States with respect to “assisted living facility,” “independent living facility,” and other facility types, both in terms of the type of care provided and licensure requirements. We agree with the commenters who emphasized that the medical expense deduction should be contingent on the sort of care the disabled individual is receiving in the facility and the necessity for the individual to be there—not the name of the facility. For this reason, we have revised the term and definition used for these facilities. The term proposed at § 3.278(b)(8), “Assisted living, adult day care, or similar facility,” is now “[c]are facility other than a nursing home” and defined in final § 3.278(b)(7) to mean “a facility in which a disabled individual receives health care or custodial care under the provisions of paragraph (d) of this section.” Such a facility must be licensed if facilities of that type are required to be licensed in the State or country in which the facility is located. The regulation also provides that a facility that is residential must be staffed 24 hours per day with care providers and that the providers do not have to be licensed health care providers.
Our proposed definition at § 3.278(b)(8) required residential facilities to be staffed 24 hours per day with “custodial care providers.” Several commenters urged us to clarify whether such providers were required to be licensed health care providers. The final rule, in § 3.278(b)(7), does not use the term “custodial care provider” and, as noted above, clarifies that these providers do not have to be licensed health care providers.
We made two additional changes to the definitions section; these are discussed in the information pertaining to institutional forms of care.
As mentioned above, in October 2012, VA issued Fast Letter 12–23 to its field stations in order to clarify and address inconsistencies that had arisen in VA's procedures manual, particularly with respect to when room and board in a facility could be considered a deductible medical expense. Numerous commenters wrote that Fast Letter 12–23 was more liberal in many respects than the proposed rule and urged us to incorporate these aspects of the fast letter in this final rule. We agree and have significantly revised § 3.278(d)(3) in the following ways:
The title of the paragraph is now “Care facilities other than nursing homes” instead of “Assisted living, adult day care, and similar facilities,” consistent with final § 3.278(b)(7). By not mentioning any particular facility type in the title, we hope to avoid the impression that we are not allowing payments made to certain facilities based on the name of the facility. As mentioned above, we are focusing on the care that the individual receives within the facility and the need for the individual to be in the facility rather than the facility name.
Final paragraph (d)(3) provides clearly that care “in a facility” may be provided by the facility, contracted by the facility, obtained from a third-party provider, or provided by family or friends. Many commenters urged us to make this clarification. This provision is consistent with Fast Letter 12–23, although the fast letter did not address family or friends. Fast Letter 12–23 spoke only to contracts that a claimant made with third-party providers. However, we heard from a number of commenters telling us that their loved one needed to live in a facility to receive care provided by a third party or by family or friends and we agree that this is reasonable.
One commenter expressed extreme dismay that we would permit third-party contractors to provide the care, believing this would lead to “warehousing” veterans in non-government facilities. We disagree. We believe that it is appropriate to allow veterans and their survivors to receive care in a facility or from a provider of their choice. We make no changes based on the comment.
The “general rule,” now found at paragraph (d)(3)(ii), simply provides that payments for health care provided by a health care provider are medical expenses. We stress that this rule applies to all individuals in a care facility, including those who do not need A&A, are not housebound, do not require custodial care, and do not need to be in a protected environment. We moved assistance with ADLs to final § 3.278(d)(3)(iii), which now incorporates IADLs and is discussed below. We note that this general rule is, in fact, no different from § 3.278(c)(1), which simply states that payments to a health care provider for services performed within the scope of the provider's professional capacity are medical expenses.
Final paragraph (d)(3)(iii) incorporates the intent of Fast Letter 12–23 by stating that the provider does not need to be a health care provider, and that payments for assistance with ADLs and IADLs are medical expenses, if the disabled individual is receiving health care or custodial care in the facility and either: (A) Needs A&A or is housebound; or (B) a physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that, due to a physical, mental, developmental, or cognitive disorder, the individual has a need to be in a protected environment. This is a liberalization from proposed paragraph (d)(3), which would have required a veteran or a surviving spouse (or parent for parents' DIC purposes) to be in need of A&A or to be housebound in order for VA to consider certain medical expenses as deductible; the physician's or physician assistant's statement option was only for dependents and other relatives. Fast Letter 12–23, however, permits the “physician's statement” option for veterans and surviving spouses as well. We determined that the “physician's statement” option should be permitted for veterans and surviving spouses because not doing so could mean that veterans and surviving spouses might be subject to a higher level of disability requirement than their dependents and relatives for their ADL and IADL assistance payments to be authorized as medical expenses. Also regarding the “physician's statement” option, which previously only included physicians and physician assistants, this final rule expands this option to include certified nurse practitioners and clinical nurse specialists as well. We recognize that a claimant's primary medical provider may not be a physician or physician assistant.
On this issue, one commenter stated that the rule should be modified to eliminate the need for a statement from a physician or physician assistant that “due to physical or mental disability, the qualified relative requires the health care services or custodial care that the in-home attendant provides.” The commenter opined this is burdensome
We have amended proposed paragraph (d)(3)(i)(B) to now provide, in final paragraph (d)(3)(iv), that payments for meals and lodging, as well as payments for other facility expenses not directly related to health or custodial care, are medical expenses when either of the following are true: (A) The facility provides or contracts for health care or custodial care for the disabled individual; or (B) a physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that the individual must reside in the facility (or a similar facility) to separately contract with a third-party provider to receive health care or custodial care or to receive (paid or unpaid) health care or custodial care from family or friends. This change is consistent with Fast Letter 12–23; however, as noted above, we are including family and friends.
Final paragraphs (d)(3)(iii) and (iv) also differ from proposed paragraph (d)(3)(i)(B) by eliminating the proposed “primary reason” requirement. The proposed rule stated that medical expenses included all payments to the facility when the “primary reason” for the individual to be in the facility was to receive health care or custodial care. We agree with the many commenters who said the proposed provision was too restrictive. We believe these liberalizing changes satisfy the commenters' concerns.
Consistent with our revisions to paragraph (d)(3) described above as well as to our revisions to paragraph (d)(2) described below, we have made two additional changes to the definitions section. First, we have removed proposed § 3.278(b)(5), the definition for “qualified relative,” and renumbered § 3.278(b) accordingly. Under this final rule, it is no longer necessary to define a qualified relative. We previously proposed, at 80 FR 3850, to define a qualified relative because we were distinguishing between (A) veterans, surviving spouses, and parents' DIC claimants, versus (B) other individuals, when it came to the “physician's statement” option. We no longer need the definition because under this final rule, as noted above, we have liberalized the requirements to allow any disabled individual to utilize the type of physician's statement that had been proposed solely for qualified relatives. We emphasize that the deletion of the definition of “qualified relative” in no way limits the scope of the individuals whose medical expenses VA may deduct.
Second, we added a definition of “needs A&A or is housebound” as final § 3.278(b)(8), to simplify the rest of the regulation and to account for another type of individual whom VA may determine to need aid and attendance. As briefly mentioned above, in the section titled “Terminology Clarifications Regarding VA Pension and Other VA Needs-Based Benefits,” VA pays a higher disability compensation (
Consistent with these changes, this final rule does not include proposed § 3.278(e)(3), which previously stated that VA does not consider payments for meals and lodging to facilities that do not provide health care services or custodial care to be medical expenses. Instead, final § 3.278(d)(3)(iv)(B) allows for those payments to be medical expenses if specified individuals attest that the individual must reside in the facility to separately contract with a third-party provider to receive health care or custodial care or to receive such care from family and friends.
Numerous commenters expressed their opinion that our proposal, at § 3.278(d)(2), to limit the deductible hourly rate for in-home attendants was a bad idea for many reasons: (1) It is patently unfair to set a national average as a limit, so there must be a geographical component; (2) using an average does not take into consideration overtime or holiday time; (3) there was no cap proposed on facility costs; (4) the proposed limit was far too low and based on an outdated source (the MetLife Mature Market Institute no longer produces its Market Survey of Long-Term Care Costs); and (5) the authorizing statute (38 U.S.C. 1503(a)(8)) does not permit VA to set a limit on the medical expense amount.
While we disagree with this comment regarding our authority, we agree with many of the other commenters, and the final rule does not include a limit to the hourly rate of in-home care. We have also removed the last sentence of proposed § 3.278(d)(2), which referred to the website where VA would publish the hourly rate limit. Several commenters suggested alternative in-home care limits such as the Genworth Cost of Care Survey or using 150 percent of the limit we proposed. We make no changes based on these suggestions because we have removed the in-home care hourly rate limit at this time, and we will consider whether we should revisit the issue in a future rulemaking.
One commenter urged us to “consider adding language to the final rule that would ensure greater protection for veterans to ensure they are not open to potential liability through the employment of a registry model of home care.” They urged us to require that all home care providers employ their home care workforce and thus train, bond, and withhold taxes for their employees. They went on to point out that some home care providers are simply staffing agencies that link a senior or disabled individual with an independent contractor who comes into the home without the training or insurance needed to provide real protections for the claimant. They believe VA should require the home care provider to employ their workforce rather than using independent contractors in an effort to eliminate the burden of potential liability. We decline to
The final rule, regarding in-home attendants, is much simpler than the proposed rule, consistent with the changes we made to the care facility provisions, and for many of the same reasons:
(1) The final rule at § 3.278(d)(2) provides that payments for assistance with ADLs and IADLs by an in-home attendant are medical expenses, as long as the attendant provides the disabled individual with health care or custodial care. The proposed rule would not have considered payments for IADLs to be a medical expense for a veteran or surviving spouse (or parent for parents' DIC) unless the claimant needed A&A or was housebound and providing health care or custodial care was the “primary responsibility” of the attendant.
(2) The final rule at § 3.278(d)(2)(i) and (ii) provides that the attendant must be a health care provider, unless the disabled individual needs A&A or is housebound, or a physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that due to a physical, mental, developmental, or cognitive disorder, the individual requires the health care or custodial care that the in-home attendant provides. The proposed rule did not permit a “doctor's statement” option for veterans, surviving spouses, or parents' DIC claimants.
Numerous commenters urged us to provide a “grandfathering provision” for our proposed changes to institutional care and in-home care provisions. Although we do not believe that the final rule necessitates such a provision, we are providing one because we have no desire or intent to harm or displace any person. We do not want to take a chance that previous guidance might have been interpreted more liberally than this final rule, in any individual case. Some commenters, who were residing in independent living facilities, expressed hesitation to submit a medical expense deduction claim for eyeglasses, for example, for fear that VA would re-consider and disallow their existing care facility expenses. We want to allay any concern or fear in this regard. Therefore, the final rule provides, in an introductory paragraph of final § 3.278(d), that paragraph (d), which pertains to institutional forms of care and in-home care, applies with respect to unreimbursed medical expense claims for institutional forms of care or in-home care received on or after October 18, 2018 that VA has not previously granted. Previous medical expense grants pertaining to institutional or in-home care made before that date would continue unless the claimant moves to a different facility or employs a different in-home attendant or in-home care agency.
In paragraph (c) of proposed § 3.278, we provided that “[g]enerally, medical expenses for VA needs-based benefit purposes are payments for items or services that are medically necessary or that improve a disabled individual's functioning.” One commenter pointed out that such a provision effectively restricts payments for medical expenses when no improvement is anticipated, such as hospice care. To clarify this provision, final § 3.278(c) provides that medical expenses for VA needs-based benefit purposes are payments for items or services “that are medically necessary; that improve a disabled individual's functioning; or that prevent, slow, or ease an individual's functional decline.”
The same commenter noted that we had not included payments for Medicare Part A in § 3.278(c)(5). Most individuals in the U.S. qualify for free Part A benefits; however, a small number purchase this benefit. Although § 3.278(c)(5) would not have prohibited deducting Part A payments as a medical expense, we agree that for the sake of clarity and completeness Part A payments should be included, and we have added it in the final rule.
One commenter requested that we include, as a medical expense, any expense made necessary due to a claimant's medical condition or disability, such as a heated blanket to regulate body temperature for a veteran with quadriplegia; cranberry juice to prevent urinary tract infections for a veteran with a spinal cord injury; or home modifications to allow disabled individuals to live safely in the community. We make no changes based on this comment. Although we are sympathetic and understand the impetus behind this suggestion, it is longstanding VA policy not to consider such expenses to be deductible medical expenses. VA's procedures manual provides, “Mechanical and electronic devices that compensate for disabilities are deductible medical expenses to the extent that they represent expenses that would not normally be incurred by nondisabled persons. Do not allow a medical expense deduction for equipment that would normally be used by a nondisabled person, such as an air conditioner or automatic transmission.” M21–1MR, V.iii.1.G.43.k (May 20, 2011). We believe this policy is consistent with common understanding of medical expenses and have decided to continue that policy.
One commenter found it unjust that proposed paragraph (c)(4) does not take into consideration higher mileage rates in certain geographical areas when calculating mileage for medical purposes. As previously stated in this document, statutory MAPRs are also not adjusted by locality. For its mileage rates, VA uses the privately owned vehicle mileage reimbursement rates provided by the U.S. General Services Administration, which we believe is a reasonable and fair standard. We make no changes based on the comment.
We now address comments we received regarding exclusions from income or income and assets (or “corpus of the estate” for parents as dependents and section 306 pension). In 38 CFR part 3, there are currently three regulations that address exclusions from income, §§ 3.261, 3.262, and 3.272, and this rulemaking adds a fourth, § 3.279. There are also currently three regulations that address exclusions from assets, §§ 3.261, 3.263, and 3.275, and this rulemaking adds a fourth, § 3.279. The reason for so many regulations is that sometimes a statutory exclusion is written in such a way that the exclusion applies to all VA needs-based benefits; however, sometimes a statutory exclusion is written in such a way that the exclusion applies only to some VA needs-based benefits. Sections 3.261 and 3.262 apply only to: (1) Parents as dependents for compensation purposes; (2) parents' DIC; and (3) section 306 pension and old-law pension, which are VA's previous and largely obsolete pension programs. Section 3.263, also largely obsolete, applies only to parents as dependents for compensation purposes and to section 306 pension. Sections 3.272 and 3.275 apply only to current-law pension. Section 3.279 will apply to all VA needs-based benefits (parents as dependents, parents' DIC, section 306 pension, old-law pension, and pension under the current law). This part of the preamble applies to all comments we received on exclusions regardless of where the exclusion is listed.
One commenter noted that our proposed rules did not contain a general statutory exclusion,
Two commenters noted that we failed to list in § 3.279 that Federal income tax refunds are excluded income. They are also excluded from resources (
This final rule does not include proposed § 3.272(k), under which only the interest component of annuity payments would have counted as income in certain situations.
On further review, proposed § 3.272(k) was in conflict with several VA precedential General Counsel opinions, which provide that distributions from individual retirement accounts (IRAs) and annuities are income for purposes of VA's needs-based benefits.
Final § 3.279 includes some corrections and a clarification, in addition to the “catch all” statutory exclusion of paragraph (a), and the income tax return exclusion of paragraph (e)(1). We have changed the title of paragraph (a) from “Scope of section” to “Statutory exclusions not countable” because we believe the new title is more descriptive. Final paragraphs (c)(1), (2), and (3) use the term “assets” in the first column rather than the term “net worth” as proposed. Using the previous term was an oversight. The actual statutory language at 25 U.S.C. 1407 and 1408 is “income or resources”; however, VA terminology for resources is now assets.
Several commenters noted that our proposed rule did not include a statutory exclusion found at 38 U.S.C. 1503(a)(5). The statute excludes reimbursements for loss; Public Law 112–154 added it to 38 U.S.C. 1503 in August 2012. We thank the commenters for pointing this out and have added this exclusion as final § 3.272(s). We note that we informed our field stations of the exclusion soon after the law change.
Several commenters referred to a statement we made in the preamble of the proposed rule that VA counts distributions from IRAs as income.
One commenter noted that our proposed rule did not amend § 3.272(e) to incorporate the decision of the United States Court of Appeals for Veterans Claims (Veterans Court) in
One commenter took issue with the income exclusions located at proposed § 3.279(c)(1), (2), (3), and (6). These exclude from income payments to American Indians of up to $2,000 per year received from Tribal Judgment Fund distributions, interests in trust or restricted lands, or per capita distributions, as well as cash payments to Alaska Natives of up to $2,000 per year received from the Alaska Native Claims Settlement Act. The commenter disagreed with the $2,000 cap on such payments. We make no change based on this comment because the $2,000 cap is statutory.
One commenter stated that there should not be a cap on the exclusion at proposed § 3.272(r), which incorporates a statutory income exclusion found at 38 U.S.C. 1503(a)(11). The exclusion, now incorporated in this final rule at § 3.272(k), provides that VA will exclude up to $5,000 per year that a State or municipality pays to a veteran as a veterans' benefit due to injury or disease. Because the statute specifically provides for the $5,000 cap, no change is warranted based on the comment.
One commenter opined that our proposed exclusion at § 3.279(b)(1) is erroneous because it “is inconsistent with 25 U.S.C. 1408” and because “relocation payments under 25 U.S.C. 1408 are treated as assets.” We make no change because the statute cited, section 1408, pertains to interests of American Indians in trusts or restricted lands and is listed in § 3.279(c)(2), where we note such payments are excluded from income (up to $2,000 per year) and assets.
However, the commenter goes on to quote from 42 U.S.C. 4636, which is the
One commenter opined that payments received under the Workforce Investment Act of 1998 (29 U.S.C. chapter 30) should not be considered an asset. This payment type is listed as an income exclusion at proposed and final § 3.279(d)(1). Although the authority for this exclusion, 29 U.S.C. 2931(a)(2), has been moved to 29 U.S.C. 3241(a)(2), the statutory text still only excludes these payments from income, not assets. Therefore, the only change we make here is to update the statutory citation.
Similarly, the same commenter stated that payments to AmeriCorps participants, listed as an exclusion from income at § 3.279(d)(2), should not be considered an asset for the annualization period in which the payment is received. Since the statutory authority for this exclusion, 42 U.S.C. 12637(d), does not authorize the exclusion of these payments from assets, we make no changes based on this comment.
The same commenter expressed the opinion that, if a payment type is excluded from income, then it should be excluded as an asset during the annualization period in which it is received. We understand the commenter's point of view; however, absent statutory authority, there is no reason to suppose that excluding a payment from income necessarily equates to excluding that payment from assets during the annualization period in which the payment is received. Indeed, if that was Congress' intent, Congress would have made its intent known. In 26 U.S.C. 6409, for example, Congress plainly stated that the refund payment is not to be considered income and is not to be considered a resource for the annualization period of receipt. No such statement is present for the statutes pertaining to AmeriCorps or Workforce Investment payments. Without an instruction from Congress, we decline to subtract certain types of payments, once received, from assets. To the extent this commenter believes this practice constitutes double-counting, we disagree. Double counting would be including a payment as income and assets in the year of receipt; these payments are being excluded from income, but included as assets. The income exclusion still benefits the claimant inasmuch as it affects his or her pension rate. 38 U.S.C. 1521.
One commenter stated that, due to the fact that payments from the Retired Serviceman's Family Protection Plan are excluded from income, Survivor Benefit Plan payments should likewise be excluded from income. The Retired Serviceman's Family Protection Plan was the Department of Defense (DoD) survivor program that was in effect before September 21, 1972, which was replaced by the Survivor Benefit Plan. Payments under the Retired Serviceman's Family Protection Plan are specifically excluded under 10 U.S.C. 1441. There is no similar statutory exclusion for the Survivor Benefit Plan in 10 U.S.C. chapter 73 or in any other statute.
The same commenter stated that life insurance payouts provided under the Servicemembers' Group Life Insurance (SGLI) and Veterans' Group Life Insurance (VGLI) should be excluded. Under 38 U.S.C. 1503(a)(12), the lump-sum proceeds of any life insurance policy on a veteran are excluded—but only for survivors pension purposes. This exclusion is currently located at § 3.272(x) and, as proposed, will be relocated to § 3.272(q) by this final rule. Given the statute, we make no change based on this comment.
This commenter also stated that death transitional payments such as death gratuities or “transitioning child allowances” should be excluded. The death gratuity is a payment that DoD pays when a service member dies on active duty. Congress has provided for the exclusion of the death gratuity for parents' DIC purposes at 38 U.S.C. 1315(f)(1)(A). It was previously called the “six months' death gratuity” and is listed as an exclusion in § 3.261(a)(12). However, there is no statutory authority to exclude death gratuity payments from current-law survivors pension, so we make no change based on this comment. We note that it would be extremely rare for a survivor to receive a death gratuity payment and also receive VA survivors pension. When a service member dies on active duty, his or her survivor is generally entitled to receive DIC from VA, which is a greater benefit than survivors pension. As previously discussed, DIC for surviving spouses and children is not a needs-based benefit and is not part of this final rule.
Likewise, we believe the “transitioning child allowance” that the commenter mentions is the additional DIC amount paid to a surviving spouse under 38 U.S.C. 1311(f) when the surviving spouse has a child or children under the age of 18. A surviving spouse receiving DIC and the “transitioning child allowance” would not receive VA pension, see 38 U.S.C. 5304(a), and therefore there would be no need for the suggested exclusion for the “transitioning child allowance.” We make no changes based on this comment.
The same commenter noted that proposed § 3.279(e)(7) would exclude from income and assets the amount of student financial assistance received under Title IV of the Higher Education Act of 1965. The commenter stated that this exclusion should cover VA education benefits. We note that under 38 U.S.C. 1503(a)(9), educational and vocational rehabilitation expenses for books, fees, tuition, and materials are deductible from income for pension purposes, as are transportation fees in certain situations. Therefore, if a veteran uses his or her education benefit to pay for school and supplies (or allowable transportation fees), then the amounts paid would be deducted. Similarly, when a VA educational benefit is payable directly to the school, VA considers it received by the veteran and then paid to the school, so VA does not count it as income. However, if the educational benefit includes a stipend to pay for living expenses or dormitory fees, then such payments are countable income for pension. Thus, while there is no statute that excludes all VA education benefits, portions of educational expenses will not count as income. VA regulations note this exclusion at § 3.272(i).
The same commenter also noted that payments “under the Atomic Commission appear to be missing from the list of exclusions.” We believe the commenter is referring to payments under the Radiation Exposure Compensation Act of 1990, which are excluded from income for current-law pension, parents' DIC, and parents as dependents for compensation purposes. Such payments are not excluded from income for section 306 or old-law pension purposes; therefore, the exclusion is not listed in § 3.279. Rather, this exclusion is listed in the portions of §§ 3.261 and 3.262 that apply to
The same commenter questioned our proposal to remove the statutory exclusion of payments received under the Medicare transitional assistance program and any savings associated with the Medicare prescription drug discount card, saying our explanation was confusing. These programs no longer exist.
One commenter expressed the belief that child support payments should not be countable income for VA pension purposes. We decline to make any change based on this comment. Section 1503 of 38 U.S.C. provides that all payments of any kind or from any source count unless excluded, and there is no statute that excludes these payments.
As an aid to readers of this supplementary information, we are providing the following distribution and derivation tables. Table 2 is a derivation table for the “chart” portion of new § 3.279. It lists the provisions in previous § 3.272 that were the basis for new § 3.279. Provisions that are new to part 3 are listed as new. The derivation table providing this information in the proposed rule had one error that has been corrected here.
Tables 3 and 4 are distribution and derivation tables for previous and revised § 3.272. We note here that “previous § 3.272” is current until the effective date of this final rule.
One commenter stated that the supplementary information in our proposal pertaining to Medicaid-covered nursing home care for veterans, surviving spouses, and surviving children was so “vague and convoluted as to be unintelligible.”
One commenter took issue with our proposal to amend 38 CFR 3.277(c)(2) to replace the word “shall” with the permissive word “may” with respect to annual Eligibility Verification Reports (EVRs).
One commenter expressed concern regarding that discretion, stating that an adjudicator may withhold payment if there is an appearance of fraud. Although there remains some discretion when it comes to individual adjudicators discerning fraud, we believe this rulemaking generally provides clearer guidance for pension entitlement decisions than existed previously, which will promote consistent benefit decisions, streamline processes, and constitute an important
One commenter suggested this final rule will increase annual reporting forms and reviewing documents from the past, which would lead to higher administrative costs. As stated, VA has no plans to require annual EVRs or increase the number of documents to be submitted and reviewed; thus, VA makes no changes based on this comment.
One commenter stated that VA has wasted significant amounts of time on requests for information on income matches, and elderly claimants must spend money on accountants to review records for years in which EVRs were filed. As stated, VA is not requiring annual EVRs, so we anticipate no reporting burden on all pension recipients. VA conducts income matches with the IRS and the Social Security Administration before awarding pension benefits, which reduces VA reliance on self-reported and unverified information from claimants. VA is moving toward a more streamlined claims process, which will benefit pension claimants and VA alike.
One commenter questioned if VA has considered the costs associated with this rulemaking, as well as the other requirements discussed by Executive Orders 12866 and 13563. As we stated in the proposed rule, VA's impact analysis, which includes the costs associated with this rulemaking, is published on
A few commenters mentioned a November 2013 Congressional Budget Office (CBO) cost estimate for a Senate bill introduced in the 113th Congress, S. 944, which, among other things, would have enacted a 3-year look-back period for VA pension. Commenters noted that the CBO estimate showed a cost and questioned why our impact analysis for the proposed rule showed a savings. Although we are not obligated to compare the two estimates, we first note that the CBO cost estimate was based on its assumption that VA would have to hire 70 additional claims processors. VA does not believe that additional claims processors will be required; in fact, we believe that somewhat fewer claims processors will be needed, given the bright-line net worth limit implemented here that was not present in S. 944. Those personnel will be re-directed to other mission-critical activities. Second, to the extent the CBO and our impact analysis have different estimates regarding the savings to be gained through a look-back period, we reiterate here that the impetus for the look back is preserving the integrity of the pension program—consistent with Congress' directive that pension be reserved for those with financial need—not a specific desire to “save money” in the pension program.
One commenter noted that GAO reported that VA's asset transfer provisions would cost taxpayers more money and increase the need for additional claims processors. We make no change based on the comment; we found no evidence of GAO making such a statement and, as stated above, we do not believe more claims processors will be required under this final rule.
One commenter suggested that VA should commission an independent study to weigh administrative expense against savings. VA has completed a cost benefit analysis that analyzed the costs and savings of this rule, is not required to complete an independent study, and declines to do so.
One commenter requested that VA consult with additional professionals before implementing this rule, specifically the National Governors Association (NGA), with regard to the effect of this rule on State Medicaid budgets. We thank the commenter for the suggestion and appreciate the input; however, VA declines to consult with the NGA at this time. VA has considered the recommendations of GAO with regard to ensuring the integrity of the pension program, has heard from a variety of interested parties through the notice and comment process coincident with this rulemaking and believes that no further consultation is necessary for implementation. Another commenter recommended that we consult with additional professionals, because this rule would cause significant internal cost to VA, to include adding claims processors. We make no change based on the comment. Again, we disagree that more claims processors will be necessary, we have completed a cost benefit analysis, and we do not believe further consultation is necessary for implementation.
Several commenters stated that VA is cutting benefits to save money, instead of helping claimants receive pension benefits. However, VA is not cutting benefits; as stated, we believe that more claimants will qualify for pension under this final rule. One commenter stated that, instead of taking away veterans' benefits, legislators should assess financial penalties for those who defer military service, which the commenter argued should cover the cost of VA and our veterans' needs as well as pay the national war debt. As stated, VA is not taking away any veterans' benefits. We make no changes based on these comments.
Several commenters expressed concern that this rulemaking would discourage claimants from applying for VA pension benefits, that the rulemaking would result in unnecessary delays, and that more appeals would result. VA disagrees with these comments. VA is streamlining its claims process to increase efficiency and decrease claims processing times. VA believes that this rule provides clearer pension entitlement criteria that will encourage claimants to apply for pension and decrease appeals. Therefore, VA does not make any changes to this rulemaking based on these comments.
Several commenters referred to a purported VA estimate of an extra 30 minutes per applicant to process claims. These commenters stated that it will take more time to review 36 months of financial documents. VA does not anticipate adding an additional 30 minutes to the processing time for each application and will generally not request 36 months of financial documents. We believe the processing time for pension claims will decrease with a bright-line net worth limit and other aspects of this final rule. The Paperwork Reduction Act section of the proposed rule did state that the “[e]stimated respondent burden” for VA Form 21P–8416 would be 30 minutes per form (consistent with past versions of VA Form 21P–8416), but it never stated that this rulemaking would require VA claims processors to spend 30 additional minutes on each claim. We make no change based on these comments.
A commenter asked how VA would treat applicants who have a claim pending on the effective date of this final rule. As explained above in the information pertaining to asset transfers, VA will not review asset transfers that occurred before the effective date of this final rule. Moreover, as explained above in the information pertaining to medical expense definitions, the new provisions pertaining to institutional forms of care or in-home care will only apply to claimants who move to a different institution or change in-home providers. In addition, if a claimant is receiving pension on the effective date of this final rule, although his or her net worth exceeds the net worth limit under final § 3.274(a), the claimant will continue to receive pension, unless he or she loses
One commenter suggested that veterans of World War II or the Korean Conflict, as well as their surviving spouses, should be grandfathered in as a class of potential claimants, and all pension recipients should be exempt. We make no change based on this comment. It is unclear why those two groups in particular—or even all current recipients—should be exempt from the new rules, especially when the new rules will benefit many elderly claimants. Another commenter expressed concern that this rulemaking would permit VA to audit every claim and deny those already receiving benefits. This is not the case; VA has no intention of systematically denying benefits to claimants who are currently receiving pension benefits. Therefore, we make no change based on such comments.
Numerous commenters asked VA to extend the comment period. Consistent with existing Executive Orders, VA provided a comment period of 60 days.
Several commenters stated that these rules should not be effective until one year or longer after date of publication. These commenters, however, failed to identify a compelling reason for such an extension, and we do not believe that the final rules are so onerous as to require such a delayed effective date.
One commenter stated that the proposed rule contained an incorrect telephone number. The phone numbers listed in the proposed rule are the correct numbers to VA's Office of Regulation Policy and Management and Pension and Fiduciary Service. Therefore, no change to this rulemaking is warranted based on this comment.
One commenter noted that this rulemaking does not appear on the Office of Management and Budget's (OMB's) website and asked why VA has not submitted this rulemaking for review as required by Executive Orders 12866 and 13563. VA did submit this rulemaking for OMB review, and this rulemaking appears on OMB's
One commenter stated that VA failed to provide notice of the proposed rule on social media. Another commenter believed that VA should mail out notice of the proposed rule to all veterans. One commenter requested a Senate hearing on this rulemaking. In issuing this rulemaking, VA complied with the procedural requirements of the Administrative Procedure Act. 5 U.S.C. 551–559. Section 553(b) requires that a proposed rule be published in the
One commenter suggested further outreach and collaboration, and another commenter wondered how VA would make the public aware of the new eligibility requirements. Again, VA published the proposed rule in the
Several commenters mentioned that VA should focus on outreach programs to make veterans more aware of VA pension instead of focusing on “taking it away.” As noted above, VA disagrees that this rule focuses on taking away veteran's benefits. Moreover, VA publishes benefit information at
Several commenters seemed to believe that VA is amending its pension program through an Executive Order. VA is amending its regulations through the rulemaking process that is governed by the Administrative Procedure Act.
One commenter wanted to know what is being done to make sure claims are granted properly now and in the future. VA is continuously working with regional office personnel to make sure claims are processed properly. We make no change based on this comment.
A few commenters seemed to think that this rulemaking would eliminate the involvement of attorneys and financial advisors from assisting VA claimants in applying for VA benefits. A few commenters stated that VA should regulate how financial advisors and organizations are allowed to assist veterans with their claims for VA benefits. While these comments pertain more to VA's accreditation program than its pension program, it is important to note that VA does regulate those who assist on veterans' claims through its rules pertaining to accreditation. 38 CFR
Several commenters suggested that VA should focus on ensuring that VA accredited representatives are competent and preventing unaccredited individuals from assisting VA claimants and charging for their services. One commenter noted that States have the authority to investigate those individuals who sell unsuitable financial products to consumers. Others expressed similar sentiment that VA should focus on pension poaching organizations, rather than “penalizing” claimants. VA takes the accreditation of representatives very seriously and, as noted above, has implemented regulatory provisions governing the accreditation program (outside of this rulemaking).
If individuals fail to cease an unlawful practice, VA will report to Federal, State, or local agencies or offices that enforce unauthorized practice, unfair business practice, or consumer or senior fraud laws. Over the past year, VA has enhanced its coordination with the U.S. Department of Justice, the Federal Trade Commission, and State Attorney General offices to combat “pension poaching” and other scams targeting veterans and their family members. VA coordination with enforcement agencies is the best response to unauthorized or unlawful practices in this realm. This rulemaking does not in any way detract from these efforts; therefore, VA is not making any changes to this rulemaking based on these comments.
Several commenters stated that this rulemaking would make applying for pension benefits more difficult. The commenters believed the more difficult application process would drive claimants to seek out advice from consultants and estate planning attorneys, which would increase abuse. To prevent such abuse, one commenter recommended allowing VA accredited agents and attorneys to charge fees for assisting with a claimant's initial application. VA disagrees that this rulemaking makes applying for pension benefits more difficult. With this rulemaking, VA is providing additional guidance on the qualifying criteria and allowable medical expenses beyond what is currently available. Claimants have the option to seek assistance from VA accredited representatives, and we see no reason why VA claimants will have a more difficult time finding representation. Moreover, VA is bound by the statutory prohibition of representatives charging fees at the time of initial application. 38 U.S.C. 5904(c). Therefore, VA does not make any changes to this rulemaking based on these comments.
Several commenters made statements regarding their own claim for benefits. These comments are outside the scope of this rulemaking, and, therefore, VA makes no changes based on these comments. One commenter spoke in support of equitable relief for claimants who encounter unique situations, citing an example of a claimant who inherited money from a child and lost pension entitlement even though the claimant used the money to pay the child's burial expenses and distributed the remainder to siblings. While we do note that equitable relief is available for certain cases under 38 U.S.C. 503, this comment is outside the scope of this rulemaking; therefore, VA makes no change to the final rule based on it.
One commenter asked that VA consider providing in its pension award letters a break-down of VA pension benefits between the portion considered to be basic pension and the portion considered to be the additional A&A allowance for purposes of reporting income to State and local agencies. This comment is outside the scope of this rulemaking, which does not pertain to decision award letters; therefore, VA makes no change to the final rule based on it.
We are making a technical correction to § 3.262(t) to include the authority citation, which was inadvertently omitted from the proposed rule.
We are making a technical correction to § 3.270. The proposed revisions to § 3.270 were stated incorrectly in the proposed rule.
We are making a technical correction to §§ 3.274(a) and 3.278(c)(4) to insert the VA website address where VA will publish the net worth limit and the privately owned vehicle mileage reimbursement rate. The proposed rule simply used a placeholder for a to-be-determined VA website address. Moreover, we inadvertently omitted headers in proposed §§ 3.274(b)(1), 3.275(b)(1) and (b)(2); this final rule corrects those omissions.
We are making a technical correction to proposed § 3.274(e), which as proposed included a heading at § 3.274(e)(3). On review, the information contained in proposed § 3.274(e)(3) was more appropriate as a note to paragraph (e), and we have re-designated it accordingly. Therefore, final § 3.274(e) does not include the introductory language, “[e]xcept as provided in paragraph (e)(3) of this section,” because final § 3.274 does not contain a paragraph (e)(3). Moreover, final § 3.274(f)(3) and (4) have been slightly altered, in a non-substantive way, for readability.
Final § 3.275(b)(1)(ii)(B) and (C) are slightly different than proposed in order to conform to final § 3.278. Final § 3.275(b)(1)(ii)(B) refers to “[a] care facility other than a nursing home” instead of “[a]n assisted living or similar residential facility that provides custodial care,” to accord with the new title of § 3.278(d)(3). Final § 3.275(b)(1)(ii)(C) refers to “[t]he home of a family member for health care or custodial care” instead of “[t]he home of a family member for custodial care” to accord with the new language of § 3.278(d)(2).
Proposed § 3.276(b) mistakenly referenced § 3.277(b) as VA's authority to obtain additional documentation necessary to determine the annual income and the value of the corpus of the estate. That authority is actually in § 3.277(a), and final § 3.276(b) corrects this mistake. We also updated the examples in paragraphs (a)(3) and (4) of proposed (now final) § 3.276.
We are making a technical correction to § 3.278(b)(1) by changing the proposed conjunction between (i) and (ii). We are spelling out the acronym “aka” used in proposed § 3.279(a), and making a technical correction to § 3.279(e)(9) to correctly refer to subchapter I instead of subchapter 1 as the authority for excluding as income annuities received under the Retired Serviceman's Family Protection Plan.
The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number.
In the proposed rule, we stated that proposed 38 CFR 3.276 and 3.278 constitutes a collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521). We also noted in the proposed rule that VA submitted a copy of the proposed rule to OMB for its review of the collection of information, and requested public comments on the collection of information provisions contained in 38 CFR 3.276 and 38 CFR 3.278.
VA received a comment stating that neither the pension application nor development forms request information regarding living expenses. A claimant's completion of VA Form 21–8049, Request for Details of Expenses (OMB Control number 2900–0161), has been an administrative requirement for claims processors to make net worth determinations. VA agrees with the comment that some of the information requested on this form will no longer be necessary for net worth determinations. Therefore, VA determined the information collection from VA Form 21P–8049, Request for Details of Expenses (OMB control number 2900–0107), is no longer necessary and VA will discontinue use of the form. The discontinuance of this form will be pursued through a separate administrative action. Considering the last PRA approval usage and the discontinuation of the form, there will be an estimated decrease in burden hours by 5,700 and an annual incremental information burden cost savings of $136,002.00.
Under 38 CFR 3.276, the collections of information are currently approved by OMB under the assigned OMB control numbers 2900–0001, 2900–0002 and 2900–0004. Specifically, under 38 CFR 3.276, claimants would be required to report to VA whether they have transferred assets within the 3 years prior to claiming pension or anytime thereafter and if so, information about those assets.
Prior to the creation of the Fully Developed Claims (FDC) program, all initial applications for Veterans Compensation and/or Pension claims had to be filed using VA Form 21–526 (OMB Control Number 2900–0001). In the administration of the FDC program, VA created two new, streamlined forms: VA Form 21–526EZ for Veterans Compensation claims (now under OMB Control Number 2900–0747) and VA Form 21P–527EZ for Veterans Pension claims (now under OMB Control Number 2900–0002). The creation and use of those two forms has resulted in the obsolescence of VA Form 21–526. Therefore, VA is pursuing discontinuance of VA Form 21–526.
For VA Form 21P–527EZ (OMB control number 2900–0002), VA estimates 839 new claimants/respondents in 2018, which represents the Veteran portion of the total caseload impacted by provisions under 38 CFR 3.276. The estimated completion time remains 30 minutes. VA therefore estimates the total incremental information collection burden costs to claimants/respondents to be $14,409.28 (592 burden hour × $24.34 per hour).
For VA Form 21P–534EZ (OMB control number 2900–0004), VA estimates 1,617 new claimants/respondents in 2018, which represents the survivor portion of the total caseload impacted by the provisions under 38 CFR 3.276. The completion time for VA Form 21P–534EZ remains 30 minutes. VA therefore estimates the total incremental information collection burden costs to claimants/respondents to be $16,648.56 (684 burden hour × $24.34 per hour).
Under 38 CFR 3.278, the collections of information are currently approved by OMB under the assigned OMB control numbers 2900–0161. Specifically, under proposed 38 CFR 3.278, claimants would be required to submit information pertaining to their medical expenses. Certain claimants would also be required to submit evidence that they need custodial care or assistance with activities of daily living.
We are adding a parenthetical statement after the authority citations in the amendatory language of this final rule to all of the sections containing information collections, so that the control numbers are displayed for each information collection.
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601–612. This final rule will directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the final regulatory flexibility analysis requirements of section 604.
Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review)
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined to be a significant regulatory action under Executive Order 12866 because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order. VA's revised impact analysis can be found as a supporting document at
This rule is considered an Executive Order 13771 deregulatory action. The estimated cost savings of the rule, expressed in 2016 dollars and discounted back to the 2016 equivalent, is $0.0937 million.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this final rule are 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the
Administrative practice and procedure, Claims, Disability benefits, Pensions, Veterans.
For the reasons set forth in the preamble, VA amends 38 CFR part 3 as follows:
38 U.S.C. 501(a), unless otherwise noted.
The revision and additions read as follows:
(a) * * *
The additions and revision read as follows:
(l) * * * For the definition of what constitutes a medical expense, see § 3.278, Deductible medical expenses.
(t)
(u)
(v)
The addition reads as follows:
(e) VA will exclude from the corpus of estate or net worth any amount designated by statute as not countable as a resource. See § 3.279.
(i)
The additions and revision read as follows:
(g) * * * For the definition of what constitutes a medical expense, see § 3.278, Deductible medical expenses.
(k)
(q) * * *
(r)
(s)
(t)
(a)
(b)
(1)
(2)
(3)
(4)
(c)
(2)
(3)
(ii) If a surviving child has a custodian other than an institution, the child's assets include the assets of the child as well as the assets of the custodian. If the child is in the joint custody of his or her natural or adoptive parent and a stepparent, the child's assets also include the assets of the stepparent.
(d)
(1)
(i) “Dependent child” refers to a child for whom a veteran or a surviving spouse is entitled to an increased maximum annual pension rate.
(ii) “Potential dependent child” refers to a child who is excluded from a veteran's or surviving spouse's pension award solely or partly because of this paragraph (d). References in this section to “dependent child” include a potential dependent child.
(2)
(3)
(4)
(e)
(1) VA has received—
(i) An original pension claim;
(ii) A new pension claim after a period of non-entitlement;
(iii) A request to establish a new dependent; or
(iv) Information that a veteran's, surviving spouse's, or child's net worth has increased or decreased; and
(2) The claimant or beneficiary meets the other factors necessary for pension entitlement as provided in § 3.3(a)(3) and (b)(4).
If the evidence shows that net worth exceeds the net worth limit, VA may decide the pension claim before determining if the claimant meets other entitlement factors. VA will notify the claimant of the entitlement factors that have not been established.
(f)
(1)
(2)
(3)
(4)
(g)
(i) Discontinued pension or denied pension entitlement for a veteran, surviving spouse, or surviving child based on the veteran's, surviving spouse's, or surviving child's excessive net worth; or
(ii) Reduced pension or denied increased pension entitlement for a veteran or surviving spouse based on a dependent child's excessive net worth.
(2)
(h)
(2)
(i)
(2)
(ii) When a dependent child's excessive net worth results in increased pension entitlement for the veteran or surviving spouse, the effective date of the increased pension entitlement rate (
(a)
(2)
(ii) For the purpose of paragraph (b)(1) of this section,
(3)
(b)
(1)
(i)
(ii)
(A) A nursing home or medical foster home;
(B) A care facility other than a nursing home; or
(C) The home of a family member for health care or custodial care.
(2)
(3)
(4)
(5)
(6)
(7)
(a)
(1)
(2)
(i) Was part of a claimant's net worth;
(ii) Was transferred for less than fair market value; and
(iii) If not transferred, would have caused or partially caused the claimant's net worth to exceed the net worth limit under § 3.274(a).
(3)
(i)
(ii)
(4)
(5)
(i) Selling, conveying, gifting, or exchanging an asset for an amount less than the fair market value of the asset; or
(ii) A voluntary asset transfer to, or purchase of, any financial instrument or investment that reduces net worth by transferring the asset to, or purchasing, the instrument or investment unless the claimant establishes that he or she has the ability to liquidate the entire balance of the asset for the claimant's own benefit. If the claimant establishes that the asset can be liquidated, the asset is included as net worth. Examples of such instruments or investments include—
(A)
(B)
(6)
(7)
(8)
(b)
(c)
(d)
(1) VA rates or has rated the child incapable of self-support under § 3.356; and
(2) There is no circumstance under which distributions from the trust can be used to benefit the veteran, the veteran's spouse, or the veteran's surviving spouse.
(e)
(1)
(2)
(3)
(4)
(5)
(i) The original calculation is shown to be erroneous; or
(ii) VA receives evidence showing that some or all covered assets were returned to the claimant before the date of claim or within 60 days after the date of VA's notice to the claimant of VA's decision concerning the penalty period. If covered assets are returned to the claimant, VA will recalculate or eliminate the penalty period. For this exception to apply, VA must receive the evidence not later than 90 days after the date of VA's notice to the claimant of VA's decision concerning the penalty period. Once covered assets are returned, a claimant may reduce net worth at the time of transfer under the provisions of § 3.274(f).
(a)
(b)
(1)
(i) An individual licensed by a State or country to provide health care in the State or country in which the individual provides the health care. The term includes, but is not limited to, a physician, physician assistant, psychologist, chiropractor, registered nurse, licensed vocational nurse, licensed practical nurse, and physical or occupational therapist; or
(ii) A nursing assistant or home health aide who is supervised by a licensed health care provider as defined in paragraph (b)(1)(i) of this section.
(2)
(3)
(4)
(i) Assistance with two or more ADLs; or
(ii) Supervision because an individual with a physical, mental, developmental, or cognitive disorder requires care or assistance on a regular basis to protect the individual from hazards or dangers incident to his or her daily environment.
(5)
(6)
(7)
(8)
(i) Veteran;
(ii) Surviving spouse;
(iii) Parent (for parents' DIC purposes); or
(iv) Spouse of a living veteran with a service-connected disability rated at least 30 percent disabling, who is receiving pension.
(c)
(1)
(2)
(3)
(4)
(i)
(ii) [Reserved]
(5)
(6)
(7)
(d)
(1)
(2)
(i) The disabled individual needs A&A or is housebound; or
(ii) A physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that, due to a physical, mental, developmental, or cognitive disorder, the individual requires the health care or custodial care that the in-home attendant provides.
(3)
(ii) Payments for health care provided by a health care provider are medical expenses.
(iii) The provider does not need to be a health care provider, and payments for assistance with ADLs and IADLs are medical expenses, if the disabled individual is receiving health care or custodial care in the facility and—
(A) The disabled individual needs A&A or is housebound; or
(B) A physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that, due to a physical, mental, developmental, or cognitive disorder, the individual needs to be in a protected environment.
(iv) Payments for meals and lodging (and other facility expenses not directly related to health care or custodial care) are medical expenses if:
(A) The facility provides or contracts for health care or custodial care for the disabled individual; or
(B) A physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that the individual must reside in the facility (or a similar facility) to separately contract with a third-party provider to receive health care or custodial care or to receive (paid or unpaid) health care or custodial care from family or friends.
(e)
(1)
(2)
(3)
(4)
This section sets forth payments that Federal statutes exclude from income for the purpose of determining entitlement to any VA-administered benefit that is based on financial need. Some of the exclusions also apply to assets (pension), also known as net worth or the corpus of the estate (section 306 pension and parents as dependents for compensation). VA will exclude from income or assets any amount designated by statute as not countable as income or resources, regardless of whether or not it is listed in this section.
(c)
(2) If the child or the child's custodian willfully conceals information necessary to make the reduction, the last day of the month in which that willful concealment occurred.
(i)