Michigan veterans and seniors need to express their concerns over proposed new VA regulations affecting their ability to plan for benefits. Our office supports changes to regulations in order to protect seniors and veterans in Michigan, but, changes need to be consistent with Congressional intent, the Constitution itself, and, at the very least, consistent with Medicaid regulations that are true and tested over time.
Current VA regulations DO NOT include a "look back" period. This has provided unscrupulous planners to take advantage of the law to sell financial products unfit for seniors facing long term care planning decisions.
Seniors and veterans using accredited attorneys, agents, or other planners skilled in elder law often provide sound, legal strategies to ensure that seniors and veterans that need help, DO NOT exhaust their assets because of the cost of their care and are others forced into a nursing home, at the federal government's own expense, in the form of Medicaid.
The proposed new regulations will create regulations that arbitrarily treat different classes of claimants differently, potentially violating the United States Constitution and federal law. Specifically, the proposed regulations, as written, will:
1. Treat a married applicant differently from a single veteran or surviving spouse, by creating a longer penalty period for single veterans and surviving spouses that "give away" the same amount of money or asset--effectively disproportionately treating different classes of people applying for the same benefit.
2. Not follow Medicaid regulations. Although the VA directly references that it wishes to uphold the "spirit of Medicaid regulations" it does not allow: hardship provisions for gifts made for reasons not related to planning; does not allow an opportunity to "cure" gifts or transfers; treats annuities as "gifts" and, subjects prior claimants and applicants to the same penalties as applicants AFTER the proposed regulations are adopted. These are all concepts and ideas allowed, and, or, accepted pursuant to Medicaid regulations.
3. Circumvent Congress. The new regulations do not comply with the intent of Congress. Congress has introduced several different bills from 2012-2014 without adopting any laws to change VA practice. By not allowing our lawmakers to create laws for the VA to follow, the VA has essentially taken it upon itself to make its own law.
4. Unfairly treat people who engage in simple estate planning through the use of a living trust. The new regulations define all transfers to trusts as transfers for less than fair market value; thus, subjecting people using living trusts to divestment penalties.
5. Contradict the VA itself. Even thought he VA specifically addresses that they are trying to end planning techniques that allow applicants to become eligible through the use of planners (i.e. professionals like attorneys, CPAs and financial planers) statistics show that less than one percent (1%) of applicants make transfers to become eligible for benefits, which in turn, probably means even less are seeking the services of professionals to become eligible for benefits.
6. Violates due process. Current claimants that are eligible under current law will be denied continued eligibility based upon transfers that they made prior to the date of their original applications.
The above examples can all be used to address your local Congressperson to illustrate why allowing the VA to adopt its own proposed regulations is a bad idea and will hurt seniors and veterans. You may find out who your Congressperson is by following this link.
You may also contact the VA directly with your comments by phone, email, or letter by using the following information:
Martha Schimpf, Analyst
Pension and Fiduciary Service (21P)
Phone 505 364-4817
Fax 505 346-4861
Veterans Benefits Administration,
Pension and Fiduciary Service (21P)
810 Vermont Avenue NW.,
Washington DC 20420
You may also post your comments directly to the federal website by following this link.
Your voice is important. You need to be heard!