There is much buzz about the long anticipated VA rule change to the improved Pension Program. These were announced in a 135 page document published in the Federal Register on September 18th. The new rules become effective October 18, 2018. Thanks to Boston attorney Harry Margolis we can give you a very short summary of the major changes. Here are some points from the Margolis summary.
• Net worth allowable – $123,600. The figure is welcomed by many vets and surviving spouses because their claims were denied for excess net worth. Some applications had been denied where the applicant had less than $10,000. However there is a bit of a trick in the number: it includes one year of income. Example: veteran and spouse have household income of $2,500 per month, which equals $30,000 per year. That means they can only have $93,600 max in cash assets.
• The second big change is that the VA added a three year look-back with a potential maximum penalty period. The rules are complex but the bottom line is if the amount transferred during the look-back combined with the amount of net worth at the time of application exceeds the maximum ($123,600 in 2018) the VA will impose a penalty period. It will be roughly measured by the amount of dollars over $123,600 the Vet would have divided by the maximum pension amount. The reason for the rule was to stop the practice of veterans purchasing annuities to reduce net worth.
Note that the look-back date runs from the date of application but the transfer penalty period runs from the date of transfer.
• A residence is still excluded but it is subject to a cap. The cap is not on the value of the property, which is what Medicaid does. The VA limit that the residence may not include more than two acres of property. This will work a hardship for vets who live in the exurban, semi-rural areas where parcels are larger.
• The VA has clarified an expanded list of what will be considered deductible medical expense. We can say that any “doctor ordered” product or service that will improve a the vet’s functioning; or that prevent, slow, or ease functional decline is covered.
Note that while we refer to vet the rules apply to any beneficiary/applicant.
The new rules add much needed clarity to the VA Pension program. Previously applications were decided by the judgment of the individual adjudicators processing the application. The process will be simpler for many applicants, but much more complicated for others because of the three year look-back. Allow me an example:
How can the following “transfers” be fixed? Suppose the applicant is a surviving spouse. After husband Vet dies surviving spouse adds daughter’s name to her accounts. Under current VA practice this has the effect of reducing net worth. Will the VA review every transaction from the bank account? Or suppose the applicant surviving spouse moves into daughter’s home and pays for necessary home modifications that takes her below the maximum net worth? How can this be fixed? Or, suppose in contemplation of getting benefits the family develops a care plan that includes the above and more?
As with many changes in government rules it takes a while for “the dust to settle” and some people may get chewed up in the process. The moral seems to be unless you have a very simple application with no history of “transfers” of net worth, it is best to check with an expert before you file.
I am feeling a bit feisty today because I just read again a case where an agent will needlessly have to pay, more than $50,000, out of his own pocket because he violated two simple rules.
Here’s a case from our neighbor to the south, Ohio, that came out late last year. The court ruled an Agent under a DPOA was personally responsible for the nursing home bills. Unless you want to pay tens of thousands of dollars on somebody else’s bills, don’t make his mistakes!
The case called Classic Healthcare Systems, LLC v. Miracle (yes the Agent’s name was miracle!) The case can be found at http://www.supremecourt.ohio.gov/rod/docs/pdf/12/2017/2017-Ohio-8540.pdf
I will not go through the mind numbing details but there are two simple big mistakes he made when he signed an admission agreement, a contract with the nursing home, while his mother was already a resident and then he tried to do Medicaid himself.
If you follow the two rules above you will not be sued by a nursing home for failure to pay their very large bill.
There. I feel better now, my outrage has settled down. Hope it will help you.
Good day!
Interesting case from the Michigan Court of Appeals brought to our attention by attorney Jeanne Hannah (author of “Taking Charge: Good Medical Care for the Elderly and How to Get It”) about contracts in retirement communities. First the lesson then the case. The moral is retirement communities are bound by their, lengthy multi-page, contracts.
The case involves Henry Ford Village in Dearborn, a continuing care retirement community. Prior to the year 2000 HFV promised that residents would get their full deposit back after they moved out or died when their unit was re-occupied.
As I understand the facts, a problem developed for HFV. The market changed – competing facilities opened in other parts of the metro area – and the units were not as valuable. People did not want to move across town to Dearborn. HFV could not get new residents to put down as large a deposit as before. HFV changed its policy. Representatives of the units could get the full deposit if they were willing to wait for a new resident to pay that much or they could take the lesser amount that HFV could now get for the units. Some former residents took the lesser amount.
A former resident representative sued in court contending that HFV had to pay back the full deposit regardless of whether it got a lesser deposit from a new resident. Attorneys for HFV opposed the suit. The Court decision allowed the case to proceed as “class action consisting of all residents of HFV who did not receive a full refund of their entrance deposits on their individual units as advertised and promised by defendants.”
The case name is Erma Rogers Revocable Trust v. Erickson Retirement Communities et al, case no. 332495 published December 12, 2017. I also wish to note that the attorney representing the proposed class of residents is former state representative David Honigman an attorney who specializes in class action suits.
The case must yet go to trial and the plaintiff-residents must prove their case. But the moral is a retirement community cannot back out of its contractual duties, even if it has good reason. Residents do have contract rights that they can take to court.
I have written often on the need for an elder to have a patient advocate to get the best care. But, what should the advocate do besides be in good communication with the doctor? I read an interesting article by Dr. George G. Ellis, Jr. In it he identifies the most common causes of medical mistakes that lead to legal claims by patients. While it is always good to avoid mistakes, take note that when a mistake arises to a legal claim a patient has had a bad outcome. You can read Doctor Ellis’s article here.
According to Dr. Ellis, here are the two most common medical mistakes and how you can prevent them.
When the doctor prescribes, or administers, a medication the side effects and interaction with the medications the patient is already taking must be considered. According to one study 100,000 people die each year due to adverse drug interactions, making it the fourth leading cause of death. The study found 350,000 cases of serious adverse drug reactions in nursing homes each year. Read more here
The failure to recognize adverse side effects and interactions was fatal for Michigan attorney Jean Hannah’s mother. She wrote how her mother who was an active 83 year old woman died in 63 days in a nursing home from this problem. She wrote about it in her book “Taking Charge: Good Medical Care for the Elderly and How to Get It.”
Seasoned social worker Diane Sasson, of Sasson Senior Services who has helped many seniors with problems of aging, reports that online.epocrates.com is an excellent, free resource for checking medication side effects and interactions. To check on the effects of alternate medications, such as herbal remedies, one will need an annual subscription.
Moral: The patient advocate must know all the medications the patient is taking and their side effects and interactions with the patient’s other medications.
This mistake is made of two parts: one, the tests do not happen either because the order was not executed so no tests were scheduled or the patient did not show up for the tests. The second part occurs when the test reports an abnormality and the physician does not follow up. Sometimes the lab performs the wrong test and the physician does not notice. Then the untreated medical condition becomes much more serious.
One study found that perhaps 25% of all medical malpractice claims involve the failure to follow up on tests. See “No News Is Not Always Good News.”
One can easily find many malpractice case reports based in this error. Malpractice attorney Jules Olsman reported an $850,000 settlement for a 64-year-old man who died as a result of a medication error when the patient was discharged from a rehabilitation center without anticoagulants that were specifically ordered by his physician’s assistant, causing him to suffer a blood clot and die.
To read a full case report involving this error see “Failure to follow up . . . leads to $150,000 award”
For some practical advice to the patient advocate, listen to the podcast interview of Dr. John Hickner, professor of family medicine at the University of Chicago in the New York Times Wellness blog
The moral for the patient advocate is no news is not always good news.” Monitor the medical practice at every step. Be sure tests ordered are completed. Be sure the lab performs the right test. Get a copy of the lab report. And finally, check with the doctor to learn the results of the test.
Conclusion
With simple vigilance the patient advocate can help an aging parent avoid the majority of serious medical errors.
We had a Great! time at the 2017 Caregiver Expo. Great to see “old” friends in the aging network and Great! to meet so many new people. For the 11th year now I have had the premiere speaking time at 12:30. ( I like to think of it as The Main Event! :p ) We had so many people interested in the presentation, the room was full and they had to be turned away at the door. 🙁
That reflects the genius of the AAA 1B Expo. Jenny Jarvis, Kathleen Yannik and crew provide a program of information you can’t get anywhere else. Many times attendees say “I didn’t know this service even existed!” (Referring to the offering of the many, many exhibitors.)
In my part I tried to offer attendees a down-to-earth education on options and plans that made sense and would not “blow up” due to a change in law or simply mistaken advice. So I thank the many attendees who said it was the best program they attended.
If you are an elder or a caregiver for an elder there is much you need to know, and know this, the AAA 1B is an excellent (FREE) source of information.
All the best,
Jim