Dept. of Veterans Affairs Publishes Final Rule for Needs-Based Benefits: Deductible Medical Expenses

Hook Law News | Oct 4, 2018 | Shannon Laymon-Pecoraro, CELA

The Department of Veteran Affairs (“VA”) has published a final rule relating to the needs-based VA pension benefit for veterans and spouses. The new rule, which was published on September 18, 2018 will be effective on October 18, 2018. I have previously provided a general overview of the proposed rule and the net worth and asset transfer rules imposed under the final rule. In this newsletter, I will breakdown the requirements for the deductible medical expenses.

The VA permits deductions for amounts paid by a veteran or veteran’s spouse for unreimbursed medical expenses to the extent such expenses exceed 5% of the maximum annual rate of pension. In general, such expenses are payments for items or services that are medically necessary, improve functioning, or prevent, slow, or ease a functional decline. The VA considers the following medical expenses:

Health Care Providers – services performed within a professional capacity are medical expenses. Cosmetic procedures that improve a congenital or accidental deformity or are otherwise related to treatment for a diagnosed medical condition are medical expenses. A health care provider is someone licensed by a State or country to provide health care in the State or country in which care is received. This may be a physician, physician’s assistant, psychologist, chiropractor, registered nurse, licensed vocational nurse, licensed practical nurse, physical therapist, or occupational therapist. A health care provider may also be a nursing assistant or home health aide who is supervised by a health care provider.

Medications, Supplies, Equipment, and Food – medication, including over-the-counter medications, procured lawfully, as well as medical supplies and equipment are included as medical expenses. Medically necessary food, vitamins, and supplements as prescribed or directed by a health care provider, and authorized prescriptions are medical expenses.

Adaptive Equipment – adaptive devices and service animals, including veterinary care, used to assist a person with an ongoing disability are medical expenses. This does not include routine expenses associated with owning an animal.

Transportation – payments for transportation for medical purposes is a medical expense. For purposes of a privately owned vehicle, this can include mileage reimbursement, at the current rate established by the General Services Administration, parking and tolls.

Insurance – health, medical and hospitalization premiums, including Medicare parts A, B, and D, are medical expenses. Long-term care insurance premiums are also included.

Smoking Cessation – payments related to smoking cessation are medical expenses.

Institutional Care – Care received in a facility or in-home are subject to specific requirements, which are further detailed herein. Hospitals, nursing homes, medical foster homes, and inpatient treatment centers, including the cost of meals and lodging charged by such facilities, are a medical expense.

Payments for assistance with Activities of Daily Living (ADLs) and Instrumental Activities of Daily Living (IADLs) by an in-home attendant are medical expenses, provided the individual receives health care or custodial care. The attendant must be a health care provider unless the individual needs Aid & Attendance or is housebound, or a physician, physician’s assistant (PA), certified nurse practitioner (CNP), or clinical nurse specialist (CNS) states in writing that, due to the individual’s needs, the care provided by the attendant is required. Breaking this down further:

  • Custodial care is defined as either (i) assistance with two or more ADLs or (ii) supervision because an individual with a mental, developmental, or cognitive disorder requires assistance on a regular basis to protect the individual from hazards or dangers incident to his or her daily environment.
  • ADLs are basic self-care activities consisting of bathing, dressing, eating, toileting, and transferring, which is the ability to move oneself from one position to another.
  • IADLs are independent living activities, such as shopping, food preparation, housekeeping, doing one’s laundry, managing finances, handling medications, using the telephone, and transportation for non-medical purposes.

With regard to facilities other than nursing homes, the individual must be receiving care provided by the facility, contracted by the facility, or otherwise obtained from a third-party provider, including a friend or family member. The provider does not need to be a health care provider provided the requirements for in-home attendants, which are identified above, are met. The meal and lodging costs charged by facilities are considered medical expenses only if the facility provides or contracts for health care or custodial care for the individual, or a physician, PA, SNP, or CNS states in writing that the individual must reside in such facility to separately contract with a third-party provider, including friends or family, to receive health care or custodial care.

Ask Kit Kat – Rare Turtles

Hook Law Center: Kit Kat, what can you tell us about the Kemp ridley sea turtles in the Cape Hatteras National Seashore?

Kit Kat: Well, the ridley sea turtle is the rarest sea turtle on planet Earth. In the past, the beaches on the Outer Banks have only seen the nests of the rare sea turtle twice—one nest in  2011 and one in 2016. This year, 8 nests have been spotted. There were 4 more reported on other North Carolina beaches—a state record! The normal nesting grounds for the Kemp ridley sea turtle are in Mexico, along the Gulf of Mexico in the eastern state of Tamaulipas, and in the Padre Island National Seashore in South Texas. Experts are not really sure why this year was so good for them on the Outer Banks. Jeff George, executive director of the nonprofit Sea Turtle, Inc. hypothesizes that the regular nesting grounds may be reaching capacity, but he really has no proof of this—just an educated guess. However, the Outer Banks have many things that meet the Kemp ridley’s preferences perfectly—gradually sloping beaches, their favorite diet of blue crabs in plentiful numbers,  and uncrowded with people. The lack of people is important to them, because they nest during daylight, unlike most turtles, who nest at night.

The Kemp ridley sea turtle is making a  bit of a comeback. In 1947, there were about 40,000 nests in Mexico. Then, in the 1970s, their numbers declined significantly due to people taking their eggs, etc., and Mexico and Texas began working to protect them. Their numbers were steadily increasing, but the 2010 Gulf of Mexico oil spill interrupted that upward trajectory. In 2017, they rebounded again, and 24,000 nests were counted in Mexico with an additional 353 in Texas. The ultimate goal according to wildlife officials is to be able to remove them from the endangered species lists altogether. They’re making progress, but there is still more work to be done, before that can safely occur. (Jeff Hampton, “World’s rarest sea turtle nests in record numbers in Hatteras,” The Virginian-Pilot, Sep.22, 2018, p. 1 & 4)

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