Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits
Proposed rule.
CFR Part: "38 CFR Part 3"
RIN Number: "RIN 2900-AO73"
Citation: "80 FR 3840"
Page Number: "3840"
"Proposed Rules"
SUMMARY: The
EFFECTIVE DATE: VA must receive comments on or before
ADDRESSES: Written comments may be submitted through http://www.regulations.gov; by mail or hand-delivery to: Director, Regulation Policy and Management (02REG),
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION: The
As a preliminary matter, we propose to refer to the current pension benefit as "pension," rather than referring to "improved pension." See 38 CFR 3.3(a)(3). When specificity is required in VA regulations to distinguish between veterans and survivors, we propose to refer to "veterans pension" and "survivors pension" instead of "disability pension" and "death pension." We have determined that the term "disability pension" is a misnomer because a veteran who has attained age 65 does not need to be disabled to receive pension. See 38 U.S.C. 1513. We also note that subchapter II of 38 U.S.C. chapter 15 is titled "Veterans' Pensions" and subchapter III is titled "Pensions to Surviving Spouses and Children." The proposed terms would be consistent with the titles used in the statutes.
We would not amend current
Executive Summary
1. Legal Authority and Need for Rulemaking
Section 501 of title 38, United States Code, authorizes VA to prescribe regulations necessary for administration of its programs. In the context of VA's needs-based pension benefit, sections 1522 and 1543 of title 38, United States Code, direct VA to deny, reduce, or discontinue the payment of pension when it is reasonable that a claimant consume some portion of his or her net worth for his or her maintenance. Because nothing in sections 1522 and 1543 define when "it is reasonable" for a claimant to consume some part of his or her net worth or provide criteria for determining when net worth is excessive, VA may interpret the law by filling these gaps.
Similarly, section 1503(a)(8) of title 38, United States Code, authorizes VA to deduct from a pension claimant's countable income payments for unreimbursed medical expenses but does not define a medical expense for VA purposes. This rulemaking would fill that gap.
This proposed rulemaking would amend regulations governing VA's needs-based pension programs to promote consistency in benefit decisions, reduce opportunities for attorneys and financial advisors to take advantage of pension claimants, and preserve the integrity of the pension program. The revised regulations would promote consistent decisions by establishing a bright-line net worth limit and re-defining net worth as the sum of assets and annual income. The revised regulations would also promote consistent decisions by defining in regulations those unreimbursed medical expenses that VA will deduct from a claimant's annual income for purposes of determining a claimant's annual pension payment.
By establishing in regulations a look-back and penalty period for claimants who transfer assets before applying for pension to create the appearance of economic need where it does not exist, the revised rules would reduce opportunities for financial advisors to provide advice for the restructuring of assets that, in many cases, renders the claimant ineligible for other needs-based benefits. Establishing a look-back and penalty period for pre-application transfers of assets would also preserve the integrity of the pension program by ensuring that VA only pays the benefit to those with genuine need.
2. Summary of Major Provisions
Proposed SEC 3.274 would establish a clear net worth limit. VA does not currently have a bona fide net worth limit. The proposed net worth limit is the dollar amount of the maximum community spouse resource allowance established for
Proposed SEC 3.275 would describe how VA calculates assets. It would provide that VA would not consider a claimant's primary residence, including a residential lot area not to exceed 2 acres, as an asset. Proposed
Proposed SEC 3.276 would provide new requirements pertaining to pre-application asset transfers and net worth evaluations to qualify for VA pension. The changes respond to recommendations that the
Proposed SEC 3.278 would define and clarify what VA considers to be a deductible medical expense for all of its needs-based benefits. The medical expense amendments will help to ensure that those who process VA needs-based claims process them fairly and consistently and that only needy claimants receive needs-based benefits. It would provide definitions for several terms, including activities of daily living (ADLs) and instrumental activities of daily living (IADLs), and provide that custodial care means regular assistance with two or more activities of ADLs or assistance because a person with a mental disorder is unsafe if left alone due to the mental disorder. It would provide that generally, payments to facilities such as independent living facilities are not medical expenses, nor are payments for assistance with IADLs. However, there would be exceptions for disabled individuals who require health care services or custodial care. The proposed rule would place a limit on the hourly payment rate that VA may deduct for in-home attendants.
Proposed SEC 3.279 would place in one central location all statutory exclusions from income and assets that apply to all VA needs-based benefits.
Proposed SEC 3.503 would incorporate in regulations statutory changes regarding
3. Assessment of Costs and Benefits
VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www1.va.gov/orpm/, by following the link for "VA Regulations Published."
Background Information on Net Worth and Asset Transfers for Pension
Under 38 U.S.C. 1522 and 1543, VA may not pay pension to a veteran or survivor when the corpus of the individual's estate is such that under all the circumstances, including consideration of the individual's income and that of the individual's spouse or dependent children, it is reasonable that the individual consume some part of the estate for his or her maintenance prior to receiving pension. However,
The Veterans Benefits Administration's (VBA) Adjudication Procedures Manual (manual), M21-1MR, which interprets VA regulations and establishes procedures for implementing regulations, instructs adjudicators to deny pension on excessive net worth grounds if "a claimant's assets are sufficiently large that the claimant could live off these assets for a reasonable period of time." M21-1MR, Part V, Subpart iii, Chapter 1, Section J.67.g. The manual also provides that "[p]ension entitlement is based on need and that need does not exist if a claimant's estate is of such size that he/she could use it for living expenses." Id. at J.67.h. However, neither current regulations nor the manual defines "reasonable period of time" or establish definitive pension net worth limits. Accordingly, GAO concluded in its
The GAO report also identified over 200 organizations that market services, primarily financial planning services, to assist veterans and survivors with transferring assets in order to reduce net worth and qualify for VA pension. As GAO noted, "[c]urrent federal law allows veterans to transfer significant assets" before applying for pension and still qualify for pension, which is inconsistent with the purpose of the program." GAO-12-540, at 22. Currently, a pension claimant may lawfully transfer significant assets before applying for pension. Current
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. The legislative history of the current pension program reveals
Proposed Net Worth and Asset Transfer Amendments
Current 38 CFR 3.274, 3.275, and 3.276 use the terms "net worth" and "corpus of the estate" to describe the assets available to a claimant or beneficiary that could bar pension entitlement if sufficiently great. In particular, current
Section 3.274--Net Worth and VA Pension
We propose to revise
Unlike the regulatory framework governing other Federal needs-based programs, such as the
In addition to producing inconsistent decisions, current rules require development of additional information not solicited in the initial application for compensation and pension, VA Form 21-526, or the application for survivors' benefits, VA Form 21P-534. For example, to determine the potential rate of depletion of a claimant's net worth, VA must gather information about a claimant's living expenses and reconcile those expenses with the claimant's income over an unspecified period of time. This development necessarily adds time and complexity to the adjudication of these needs-based benefits, potentially creating greater financial hardship for claimants as they wait for VA to decide their claims.
As stated above, the statutory authorities for net worth, 38 U.S.C. 1522 and 1543, require VA to consider a veteran's, surviving spouse's, or child's annual income when determining whether excessive net worth bars pension entitlement. Current regulations governing VA's assessment of net worth, 38 CFR 3.275(d), require VA, in making net worth determinations, to consider "the amount of the claimant's income," together with other considerations. In order to account for the statutory annual income component of net worth determinations, we propose a new net worth definition which VA would calculate by adding assets and annual income.
Proposed SEC 3.274(a) would establish a clear net worth limit for pension entitlement. Establishing a clear limit would promote uniformity and consistency in pension entitlement determinations consistent with the purpose of the pension program. Additionally, under a clear bright-line limit, it would no longer be necessary for claim adjudicators to complete lengthy, subjective net-worth determinations, which would free up limited resources for other claim-related activities, specifically timely delivery of benefits to individuals who immediately need Government support.
The net worth limit for pension entitlement that we propose to use is the standard maximum community spouse resource allowance (CSRA) prescribed by
Congress' intent in establishing the CSRA was to prevent the impoverishment of the non-institutionalized spouse of a
The current cost of nursing home and assisted living care supports our proposal to adopt the maximum CSRA. A recent survey found that the average annual cost of a semi-private room in a nursing home was over
Proposed SEC 3.274(a) includes several placeholders that describe what the final rule would contain if implemented. The net worth limit would be the dollar amount of the current maximum CSRA as of the effective date of the final rule, to be increased by the same percentage as the increase in
Under proposed
Proposed SEC 3.274(b)(2) would provide that VA calculates a claimant's or beneficiary's assets under this section and
Proposed SEC 3.274(c) generally restates provisions in current
Proposed SEC 3.274(d) would clarify paragraphs (b) and (d) of current
Proposed SEC 3.274(d)(1) would clarify two issues pertaining to dependent children. Proposed paragraph (d)(1)(i) would provide that a "dependent child" refers, for the purposes of this section, to a child for whom a veteran or a surviving spouse is entitled to an increased maximum annual pension rate. The maximum annual pension rates are the annual pension rates set forth in 38 U.S.C. 1521 for veterans and 38 U.S.C. 1541 for surviving spouses. These maximum rates are then reduced by countable annual income, divided by 12, and rounded down to the nearest whole number to calculate the monthly pension entitlement rate. The maximum annual pension rate is the annual amount to which an eligible claimant is entitled to receive if his or her annual income is zero.
Technically, surviving spouses do not have dependent children for VA purposes. For VA purposes, any child must be a child of the veteran. A veteran's child who is not in the custody of a surviving spouse, as custody is defined at
Proposed SEC 3.274(d)(1)(ii) would provide that a "potential dependent child" refers to a child who is excluded from a veteran's or surviving spouse's pension award solely or partly because the child's net worth exceeds the limit and provides that references to a "dependent child" also include such potential dependent children.
Similar to proposed paragraphs (b)(1) through (b)(3) for claimants and beneficiaries, paragraphs (d)(2) through (d)(4) of proposed
Nothing in current
Information about a claimant's net worth may come from the claimant him or herself or from VA matching programs with the
Nothing in current
Proposed SEC 3.274(f)(2) would simply cross-reference the regulations that apply to pension annual income calculations. By law, VA must consider annual income in determining net worth. A decrease in annual income is the second method by which net worth can decrease. In proposed
Paragraphs (g), (h), and (i) of proposed
Proposed SEC 3.274(h) pertains to reduction or discontinuance of a beneficiary's pension entitlement based on excessive net worth. Proposed paragraph (h)(1) would restate the statutory end-of-year effective date for reducing or discontinuing a pension award because of excessive net worth. See 38 U.S.C. 5112(b)(4)(B). The first day of non-payment or reduced rate would be the first day of the year that follows the net worth change. This is consistent with longstanding VA implementation of reduction and discontinuance effective dates. See 38 CFR 3.500. Proposed paragraph (h)(2) would clarify that if net worth decreases to or below the limit before the effective date, VA will not reduce or discontinue the pension award on the basis of excessive net worth. Proposed
Proposed SEC 3.274(i) prescribes additional effective dates that pertain to changes in a dependent child's net worth. As discussed above in the information pertaining to
Proposed SEC 3.274(i)(2) would address the situation in which establishing a dependent child results in a decreased pension entitlement rate for the veteran or surviving spouse. Paragraph (i)(2)(i) would establish an end-of-year effective date for a decreased pension entitlement rate when an increase in a dependent child's net worth results in removing the child from the award when the child's net worth is excessive. This end-of-year effective date is the same regardless of whether establishing or not establishing the dependent child due to a net worth change results in a decreased pension entitlement rate for the veteran or surviving spouse. Under 38 U.S.C. 5112(b), the "effective date of a reduction or discontinuance of . . . pension . . . by reason of change in [net worth] shall be the last day of the calendar year in which the change occurred." Emphasis added.
Proposed paragraph (i)(2)(ii) would establish the effective date for an increased entitlement rate based on removing the child as a dependent as the date VA receives a claim for an increased pension rate based on the dependent child's net worth increase. This is consistent with 38 CFR 3.660(c), effective
The explanatory derivation table below regarding net worth effective dates is provided as an aid for those reading this NPRM.
Table 1--Net Worth (NW) Effective-Date Provisions Derivations Proposed Derived from Situation Effective date Change from S. 3.274 current rule 3.274(g) 3.660(d) NW has Entitlement No date change. decreased after from date of NW Addition of VA denial, increase if certified reduction, or information statement discontinuance received timely requirement. 3.274(h) 3.660(a)(2) NW has End-of-the-year No date change. increased and that NW Addition of reduction or increases certified discontinuance statement necessary requirement when NW decreases before the effective date. 3.274(i)(1) New Cross- Reference 3.274(i)(2)(1) 3.660(d) Dependent End-of-the-year No date change. child's NW has that NW decreased and decreases adding the child results in a rate decrease for the veteran or surviving spouse 3.274(i)(2)(2) 3.660(c) Dependent Date of receipt No date change. child's NW has of claim for Claim required increased and increased rate for increased removing the based on rate. child results child's NW in a rate increase increase for the veteran or surviving spouse
We would remove from
Finally, we would update the authority citation at the end of
Section 3.275--How VA Determines the Asset Amount for Pension Net Worth Determinations
Although sections 1522 and 1541 require VA to deny or discontinue pension or increased pension when a veteran's, surviving spouse's, or child's net worth is excessive, nothing in these statutes prescribes how VA should calculate net worth. VA implemented the statutory net worth provisions in current 38 CFR 3.275 by establishing net worth evaluation criteria. We propose to amend
As noted in the above discussion of proposed
Under current
Proposed SEC 3.275(a)(1) would define "assets" and restate most of current
Proposed paragraph (a)(3) would define "residential lot area" to state and clarify VA's policy with respect to lot size. Current
The United States Census Bureau reports that in 2010, the average lot size for new single-family homes sold was 17,590 square feet. In metropolitan areas, it was 16,585 square feet and outside metropolitan areas, it was 27,363 square feet. We propose to establish a 2-acre residential lot area limit to avoid disadvantaging veterans and survivors who may have purchased a residence with an above-average lot size long before they developed a need for the support provided by the pension program. This limit would support our policy choice, under which we exclude a claimant's primary residence from assets, while at the same time placing a reasonable limit on excluded property for purposes of preserving the pension program for Veterans and survivors who have an actual need.
Proposed paragraph (b) would prescribe exclusions from assets. In proposed paragraph (b)(1), we would incorporate other matters of longstanding VA policy with respect to a claimant's residence, as explained and justified below. Under current
Consistent with proposed
Current SEC 3.275(b) does not address whether VA excludes a claimant's residence if the claimant is receiving care in a nursing home or other residential facility or receiving care in the home of a family member. The legislative history of Public Law 95-588, which created the current pension program, indicates that
Proposed paragraphs (b)(3) through (b)(6) would list four types of payments that are excluded from assets for VA's net worth calculations for pension. These four exclusions apply to current pension but do not apply to prior pension programs. Proposed paragraph (b)(3) would list payments under section 6 of the Radiation Exposure Compensation Act of 1990 and is taken from current
Below in this NPRM, we propose a new
Waived Income Provision Relocation and Revision
We propose to move the provision of current 38 CFR 3.276(a), which pertains to waived income, to a new paragraph (i) in 38 CFR 3.271. We believe that
Section 3.276--Asset Transfers and Penalty Periods
Sections 1522 and 1543 of 38 U.S.C. require VA to deny or discontinue pension when a claimant's or beneficiary's net worth, including consideration of annual income, is excessive. As stated in the above introductory information on net worth determinations and asset transfers, current
Proposed SEC 3.276(a) would define "covered asset," "covered asset amount," "fair market value," "transfer for less than fair market value," "annuity," "trust," "uncompensated value," "look-back period" and "penalty period." These definitions would make this necessarily complex regulation easier to understand. We would also provide a cross-reference to the definition of "claimant" in proposed
We would define "covered asset" to mean an asset that was part of net worth, was transferred for less than fair market value, and would have caused or partially caused net worth to exceed the limit had the claimant not transferred the asset. The "covered asset amount" would be the monetary amount by which net worth would have exceeded the limit on account of a covered asset if the uncompensated value of the covered asset had been included in the net worth calculation. We would include two examples of covered asset amounts. These definitions are important because the covered asset amount is the amount that VA proposes to use to calculate the penalty period as described below. A smaller covered asset amount results in a shorter penalty period. We propose to define "covered asset amount" in this manner because, in our view, it would be inequitable to calculate a penalty period using the entire transferred amount when net worth would have exceeded the limit by only a small amount if the claimant had not transferred any assets at all.
In proposed
We then propose to define "transfer for less than fair market value" as selling, conveying, gifting, or exchanging an asset for an amount less than the fair market value of the asset. In addition, we would include as a transfer for less than fair market value any 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 VA pension by transferring assets to or purchasing such instruments or investments. Two examples of such instruments or investments are annuities and trusts. We would define "annuity" to mean "a financial instrument that provides income over a defined period of time for an initial payment of principal." This definition is derived from the GAO report. We would define "trust" to mean a legal arrangement by which an individual (the grantor) transfers property to an individual or an entity (the trustee), who manages the property according to the terms of the trust, whether for the grantor's own benefit or for the benefit of another individual. As previously stated, the GAO report identified numerous organizations that assist claimants with transferring assets to create pension entitlement. Therefore, we are including these asset transfers in the proposed definition of "transfer for less than fair market value." We note that similar terms are used in 42 U.S.C. 1382b(c), which pertains to
The "uncompensated value" of an asset would be defined as the difference between its fair market value and the amount of compensation an individual receives for the asset. (In this context, the word "compensation" has its more general meaning rather than the technical meaning given in 38 U.S.C. 101(13).) In the case of an asset transfer to, or purchase of, a financial instrument or investment such as a trust or an annuity, the uncompensated value would mean the amount of money or the monetary value of other assets so transferred.
Proposed SEC 3.276(a)(7) would define "look-back period" to mean the 36-month period before the date on which VA receives either an original pension claim or a new pension claim after a period of non-entitlement. As previously stated, VA proposes to establish a 3-year look-back period similar to that employed by the
"Penalty period" would be defined as a period of non-entitlement due to transfer of a covered asset.
Proposed SEC 3.276(b) would establish VA's policy with regard to pension entitlement and covered assets and would put claimants on notice that VA may require evidence to determine whether a prohibited asset transfer has occurred. This is consistent with current
Proposed SEC 3.276(c) would establish a presumption, rebuttable by clear and convincing evidence, that transferring an asset during the look-back period was for the purpose of reducing net worth to establish entitlement to pension. As a result, the asset would be considered a covered asset. The presumption could be rebutted if the claimant establishes that he or she transferred an 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 VA pension. We propose that evidence substantiating the application of this exception may include a complaint contemporaneously filed with state, local, or Federal authorities reporting the incident. In such a case, VA would not consider the transferred asset to be a covered asset and would thus not calculate any penalty period, although this would mean that net worth would be excessive and the provisions of
Proposed SEC 3.276(d) would set forth an exception that applies to assets transferred to a trust for the benefit of a veteran's child whom VA rates or has rated as being permanently incapable of self-support under the provision of 38 CFR 3.356. VA would not consider assets transferred to a trust established on behalf of such a child to be covered assets as long as there is no circumstance under which distributions from the trust can be used to benefit the veteran, veteran's spouse, or surviving spouse.
VA considered providing for an exception consistent with the "undue hardship" determination prescribed in the aforementioned SSI statute, 42 U.S.C. 1382b(c)(1)(C)(iv). However, the statutory resource limit in the SSI program is
In proposed
We propose to set a maximum penalty period of 10 years. We considered setting the maximum penalty period at 36 months, which would be consistent with the SSI statute; however, after further consideration, we determined that it would be inequitable for an individual who transfers, for example,
Under proposed
We would provide an example of penalty period calculations at proposed
Proposed SEC 3.276(e)(5) states that, with two exceptions, VA would not recalculate a penalty period under this section. VA would recalculate the penalty period if the original calculation is shown to be erroneous or if all of the covered assets were returned to the claimant before the date of claim or within 30 days after the date of claim. If, not later than 90 days after VA's decision notice pertaining to the penalty period, VA receives evidence showing that all covered assets have been returned to the claimant, VA would not assess a penalty period. Although VA would not assess a penalty period in such a situation, the claimant's net worth would be excessive, but would be available for the claimant to use for his or her needs consistent with Congressional intent. Once correctly calculated, the penalty period would be fixed, and return of covered assets after the 30-day period provided would not shorten the penalty period. Numerous penalty period recalculations would detract from the primary mission of paying pension benefits to those in need. Claimants always have the right to appeal any VA decision. See 38 CFR 20.201.
Section 3.277--Eligibility Reporting Requirements
VA has discretionary authority, under 38 U.S.C. 1506, to require pension beneficiaries to complete annual Eligibility Verification Reports (EVR) to verify the amount of their income, net worth, and the status of their dependents. VA has implemented this authority at 38 CFR 3.277(c)(2), which currently provides that VA "shall" require an EVR in particular situations. We now propose to remove the word "shall" and replace it with the word "may," which reflects the statute and gives VA discretionary authority to require EVRs.
Section 3.278--Deductible Medical Expenses
Section 1503(a)(8) authorizes VA, in determining annual income in the current pension program, to exclude from annual income 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 they exceed 5 percent of the applicable maximum annual pension rate. In the parents' DIC program, section 1315(f)(3) authorizes VA to exclude from a claimant's annual income "unusual medical expenses." See 38 CFR 3.262(l) (defining unusual medical expenses and implementing the exclusion for parents' DIC and section 306 pension).
There is currently no regulation that adequately defines "medical expense" for VA purposes. Current 38 CFR 3.262(l) and 3.272(g) are clear that a deductible medical expense must be unreimbursed and must be made on behalf of certain individuals, e.g., the veteran, veteran's spouse, veteran's surviving spouse, or other qualifying relatives. Except for the provision in 38 CFR 3.362(l) that unreimbursed health, accident, sickness, and hospitalization insurance premiums are included in medical expenses for purposes of section 306 pension and parents' DIC, VA regulations do not define what constitutes an unreimbursed medical expense for VA's needs-based benefit programs. In particular, no regulation reflects current VA policy pertaining to deductions available for institutional forms of care and in-home attendants.
We therefore propose to add new
Proposed SEC 3.278 would implement sections 1315(f)(3) and 1503(a)(8) by describing and defining the medical expenses that VA may deduct for purposes of three of VA's needs-based benefit programs. In proposed paragraph (a), we would define the scope of proposed
Paragraphs (b)(2) and (b)(3) of proposed
Although managing finances is an IADL for purposes of this section, we propose to clarify that managing finances does not include services rendered by a VA-appointed fiduciary. We also provide, in proposed paragraph (e)(5), that a fee paid to a VA-appointed fiduciary is not a deductible medical expense. Beneficiaries pay fees to VA-appointed fiduciaries out of their monthly VA benefits. Accordingly, we have determined that it would be inappropriate to permit a deduction from income for financial management services, and thus increase the amount of pension paid, when VA benefits are used to pay for the services.
Proposed SEC 3.278(b)(4) would define "custodial care" as regular assistance with two or more ADLs or regular supervision because an individual with a mental disorder is unsafe if left alone due to the mental disorder This definition is consistent with current VA policy.
Proposed SEC 3.278(b)(5) would define "qualified relative." Under 38 U.S.C. 1503(a)(8) and 1315(f)(3), VA may deduct medical expenses paid by a veteran, a veteran's dependent spouse, a surviving spouse, or a surviving child (pension and section 306 pension) or by a veteran's parent (parents' DIC). The implementing regulations, 38 CFR 3.262(l) and 3.272(g), limit whose medical expenses VA may deduct. In addition to the claimant's or beneficiary's medical expenses, the medical expenses of dependents and certain other family members are deductible. We would define "qualified relative" as a veteran's dependent spouse, a veteran's dependent or surviving child, and other relatives of the claimant who are members or constructive members of the claimant's household whose medical expenses are deductible under SUBSEC 3.262(l) or 3.272(g). A "constructive member" of a household is an individual who would be a member of the household if the individual were not in a nursing home, away at school, or a similar situation. Defining a "qualified relative" for the purposes of the medical expense deduction makes the regulation simpler. We would not include veterans or surviving spouses in the definition because veterans and surviving spouses are the only pension beneficiaries who can be rated or presumed to require the aid and attendance of another individual or to be housebound under 38 CFR 3.351. This distinction is significant as will be explained below in this NPRM. We would also not include claimants who are parents for parents' DIC purposes because they too can be rated or presumed to require the aid and attendance of another individual.
Proposed SEC 3.278(b)(6), the definition of "nursing home," would cross-reference current
Consistent with current VA health care regulations, proposed paragraph (b)(7) would define "medical foster home" as a privately owned residence, recognized and approved by VA, that offers a non-institutional alternative to nursing home care for veterans who are unable to live alone safely due to chronic or terminal illness. See 38 CFR 17.73.
Proposed paragraph (b)(8) would define "assisted living, adult day care, or similar facility." We would use this rather lengthy term to avoid confusion that could result from the fact that not all facilities that meet our proposed definition use the same nomenclature. Some governmental institutions could also fall under our proposed definition. Our proposed definition for such a facility is that it must provide individuals with custodial care; however, the facility may contract with a third-party provider to provide such care. We would further provide that residential facilities must be staffed with custodial care providers 24 hours per day. To be included in our definition, a facility must be licensed if such facilities are required to be licensed in the state or country in which the facility is located.
Proposed paragraph (c) would prescribe VA's general medical expense policy and list examples of expenses that VA considers medical expenses for its needs-based benefits. In general, medical expenses for VA purposes are payments for items or services that are medically necessary or that improve a disabled individual's ability to function. This reflects longstanding VA policy with respect to medical expenses.
Proposed SEC 3.278(c) would specify that the term "medical expenses" includes, but is not limited to, payments specified in paragraphs (c)(1) through (c)(7). Paragraphs (c)(1) through (c)(7) list payments made to a health care provider; payments for medications, medical supplies, medical equipment, and medical food, vitamins, and supplements; payments for adaptive equipment; transportation expenses for medical purposes; health insurance premiums; smoking cessation products; and payments for institutional forms of care and in-home care as provided in paragraph (d). We propose to include in paragraph (c) detailed provisions relating to the broad categories of medical expenses. These clarifications provide further guidance regarding the medical expenses that may be deducted from income.
Under current policy, medical expenses include payments for care provided by a health care provider, but not for cosmetic procedures that only improve or enhance appearance, although these may be deductible if the purpose of such procedure is to improve a congenital or accidental deformity or is related to treatment for a diagnosed medical condition. Proposed SUBSEC 3.278(c)(1) and (e)(2) would continue this policy.
We propose to prescribe in
In proposed
Proposed SEC 3.278(d) would prescribe VA's medical expense policy for payments for institutional and in-home care services. In accordance with longstanding VA policy, proposed paragraph (d)(1) would provide that payments to hospitals, nursing homes, medical foster homes, and inpatient treatment centers, including the cost of meals and lodging charged by such facilities, are deductible medical expenses.
In paragraph (d)(2), we propose to clarify VA's policy with respect to in-home attendants. We also propose a limit to the hourly in-home care rate that VA would deduct. We propose this limit to minimize instances of fraudulent or excessive in-home care charges. We also would require that payments, to qualify as medical expenses for VA, must be commensurate with the number of hours that the provider attends to the disabled individual. The proposed limit is reasonable and derived from a reputable industry source. The limit that we propose is the average hourly rate for home health aides, which is published annually by the
We would next state the general rule that an in-home attendant must be a health care provider for the expense to qualify as a medical expense and that only payments for assistance with ADLs or health care services are medical expenses. However, if a veteran or a surviving spouse (or parent for parents' DIC) meets the criteria for regular aid and attendance or is housebound, the attendant does not need to be a health care provider. In addition, VA would consider payments for assistance with IADLs (as defined by VA) to be medical expenses, as long as the attendant's primary responsibility is to provide the veteran, surviving spouse, or parent with health care services or custodial care. In accordance with current VA policy, this provision would also apply to a qualified relative if a physician or physician assistant states in writing that, due to physical or mental disability, the relative requires the health care services or custodial care that the in-home attendant provides.
Similarly, proposed paragraph (d)(3) would address facilities that are assisted living, adult day care, and similar facilities, and would provide the general rule that only payments for health care services and assistance with ADLs provided by a health care provider are medical expenses. However, if a veteran or surviving spouse (or parent for parents' DIC) meets the criteria for regular aid and attendance or is housebound, the care does not need to be provided by a health care provider. In addition, if the primary reason for the veteran or surviving spouse to be in the facility is to receive health care services or custodial care that the facility provides, then VA would deduct all fees paid to the facility, including meals and lodging. This provision would also apply to a qualified relative if a physician or physician assistant states in writing that, due to the relative's physical or mental disability, the relative requires the health care services or custodial care that the facility provides.
Proposed paragraph (e) would list examples of items and services that are not medical expenses for purposes of VA needs-based benefits. We would clarify that generally, payments for items or services that benefit or maintain general health, such as vacations and dance classes, are not medical expenses, nor are fees paid to a VA-appointed fiduciary, as explained above. Proposed paragraph (e)(2) would provide that cosmetic procedures are not medical expenses except in the instances described in proposed paragraph (c)(1). We would also clarify that except as specifically provided, medical expenses do not include assistance with IADLs (i.e., shopping, food preparation, housekeeping, laundering, managing finances, handling medications, using the telephone, and transportation for non-medical purposes), nor do they include payments for meals and lodging, except in limited situations involving custodial care. Here, we would explicitly state that this category applies to facilities such as independent living facilities that do not provide individuals with health care services or custodial care.
VA's intent in promulgating these rules is to ensure that deductions from countable income reflect
Section 3.279--Statutory Exclusions From Income or Assets (Net Worth or Corpus of the Estate)
As stated above in this NPRM in the information pertaining to
Many of these exclusions are already contained in current VA regulations. We have determined that it would be useful for regulation users to have all of the statutory exclusions listed in one regulation. Exclusions that are not applicable to every VA-administered needs-based benefit would be contained only in the regulations pertaining to the benefit. This NPRM describes statutory exclusions that are either not currently contained in 38 CFR part 3 or are only partly contained in current part 3.
Proposed paragraph (a) would describe the scope of the section as described above.
Proposed SEC 3.279(b)(1) would exclude from income relocation payments made under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended. 42 U.S.C. 4601. Payments made under the Act are excluded from income by 42 U.S.C. 4636.
Proposed SEC 3.279(b)(4) would exclude from income and assets payments made to individuals because of their status under Public Law 103-286, as victims of Nazi persecution.
Proposed SEC 3.279(b)(7) would exclude from income and assets payments under the National Flood Insurance Act of 1968. See 42 U.S.C. 4031.
Proposed SEC 3.279(c)(1) would exclude from income and assets funds paid under the Indian Tribal Judgment Funds Use or Distribution Act, 25 U.S.C. 1401, while such funds are held in trust. The first
Proposed SEC 3.279(c)(2) would exclude from income the first
Proposed SEC 3.279(c)(3) would address exclusions under the Per Capita Distributions Act, codified at 25 U.S.C. 117a-117c. Under section 117b(a), distributions of funds are subject to the provisions of 25 U.S.C. 1407. The exclusions under
Proposed SEC 3.279(c)(4) would exclude from income and assets income derived from certain submarginal land of
Proposed SEC 3.279(c)(5) would exclude from income and assets up to
Proposed SEC 3.279(c)(6) would exclude from income and assets any income or asset received under the Alaska Native Claims Settlement Act, 43 U.S.C. 1626. Current SUBSEC 3.262(x) and 3.272(t) exclude the following payments from income consideration: cash (including cash dividends on stock received from a
Proposed SEC 3.279(c)(7) would exclude from income and assets payments received under the Maine Indian Claims Settlement Act of 1980, 25 U.S.C. 1721.
Proposed SEC 3.279(c)(8) would exclude payments received by Native Americans under the settlement in Cobell v. Salazar, Civil Action No. 96-1285 (TFH) (D.D.C.). Section 101(f)(2) of Public Law 111-291,
Proposed SEC 3.279(d)(1) would exclude from income allowances, earnings, and payments to individuals participating in programs under the Workforce Investment Act of 1998, 29 U.S.C. 2931, which provides that allowances, earnings, and payments to individuals participating in programs under the Act shall not be considered as income for the purposes of determining eligibility for, and the amount of, income transfer and in-kind aid furnished under any Federal or Federally-assisted needs-based program. There would be no net worth exclusion.
Proposed SEC 3.279(d)(2) would exclude from income allowances, earnings, and payments to AmeriCorps participants pursuant to 42 U.S.C. 12637. There would be no asset exclusion.
Current SUBSEC 3.262(q) and 3.272(k) list payments from various Federal volunteer programs that are excluded from income. Through a series of legislative changes, these programs are now administered by the
Proposed SEC 3.279(e)(1) would exclude from income and assets the value of the allotment provided to an eligible household under the Food Stamp Program. Proposed
Proposed SEC 3.279(e)(3) would exclude from income the value of any child care provided or arranged (or any amount received as payment for such care or reimbursement for costs incurred for such care) under the Child Care and Development Block Grant Act of 1990, 42 U.S.C. 9858.
Proposed SEC 3.279(e)(4) would exclude from income the value of services, but not wages, provided to a resident of an eligible housing project under a congregate services program under the Cranston-Gonzalez National Affordable Housing Act. 42 U.S.C. 8011.
Proposed SEC 3.279(e)(5) would exclude from income and assets the amount of any home energy assistance payments or allowances provided directly to, or indirectly for the benefit of, an eligible household under the Low-Income Home Energy Assistance Act of 1981, 42 U.S.C. 8621.
Proposed SEC 3.279(e)(6) would exclude from income payments, other than wages or salaries, received from programs funded under the Older Americans Act of 1965, 42 U.S.C. 3001. In accordance with 42 U.S.C. 3020a(b), such payments may not be treated as income for the purpose of any other program or provision of Federal or state law.
Proposed SEC 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, including Federal work-study programs,
Proposed SEC 3.279(e)(8) would exclude from income annuities received under subchapter 1 of the Retired Serviceman's Family Protection Plan. 10 U.S.C. 1441. We note that this exclusion is currently listed at
As an aid to those who read this supplementary information, we are providing the following derivation table for proposed
Table 2--Proposed S. 3.279 Derivation Proposed S. 3.279 Derived from current S. 3.272 (or "New") 3.279(b)(1) New. 3.279(b)(2) 3.272(v). 3.279(b)(3) 3.272(p). 3.279(b)(4) New. 3.279(b)(5) 3.272(o). 3.279(b)(6) 3.272(u). 3.279(b)(7) New. 3.279(c)(1) New. 3.279(c)(2) 3.272(r). 3.279(c)(3) through New. (c)(5) 3.279(c)(6) 3.272(t). 3.279(c)(7) through New. (d)(2) 3.279(d)(3) 3.272(k). 3.279(e)(1) through New. (e)(8) 3.279(e)(9) 3.272(w).
Conforming Amendments, Corrections, and Other Exclusions
Because the statutory exclusions pertaining to all VA-administered needs-based benefits would be listed in proposed
We would amend
For reasons described below in the information pertaining to conforming amendments and additions to
Conforming Amendments and Corrections to Sections 3.261 and 3.262
Sections 3.261 and 3.262 set forth income exclusions for section 306 pension, old-law pension, parental dependency for compensation under
Additionally, we would add to proposed
We would remove current entries (35) through (37) and (39) through (41) from current
Additionally, we would add to proposed
For reasons described below in the information pertaining to conforming amendments and additions to
Conforming Amendments and Additions to Section 3.272
Section SEC 3.272 sets forth income exclusions for current pension. We propose to add to current
We propose to remove paragraph (w) because it describes a statutory income and asset exclusion of payments received under the
We also propose to add a new income exclusion at
Generally, VA counts income from Individual Retirement Accounts and similar investments, even though such income represents a partial return on principal. In addition, a claimant or beneficiary may transfer assets from one form to another form, e.g., selling real estate at fair market value and placing the proceeds into a savings account or certificate of deposit. Such a transfer of assets has no impact on net worth for VA pension as long as VA has included the fair market value as an asset and net worth remains within the net worth limit. However, sometimes a claimant or beneficiary, or someone acting on his or her behalf, will sell an asset or his or her residence and purchase an annuity with the proceeds. We emphasize that these are situations in which the proceeds would not cause net worth to bar pension entitlement. If a claimant sells his or her primary residence that was previously excluded as an asset and uses the proceeds to purchase an annuity, VA views such a transfer in a similar manner as if the claimant had placed the proceeds from the sale in a bank account. If the proceeds were placed in a bank account, then the bank account itself would be an asset. However, incremental withdrawals from the bank account would not count as income. Accordingly, fairness would dictate that the same proceeds, if placed into an annuity principal rather than a bank account, should not result in countable income that reduces pension entitlement, although the annuity principal itself could adversely affect pension entitlement if the value of the annuity principal caused net worth to exceed the net worth limit.
In proposed
As an aid to those who read this supplementary information, we are providing the following proposed distribution and derivation tables for current and proposed
Table 3--Current S. 3.272 Distribution Current S. 3.272 Distributed to or no change in location 3.272(a) through (j) No change. 3.272(k) 3.279(d)(3). 3.272(l) through (n) No change. 3.272(o) 3.279(b)(5). 3.272(p) 3.279(b)(3). 3.272(q) 3.272(o). 3.272(r) 3.279(c)(2). 3.272(s) 3.272(p). 3.272(t) 3.279(c)(6). 3.272(u) 3.279(b)(6). 3.272(v) 3.279(b)(2). 3.272(w) Removed. 3.272(x) 3.272(q).
GOES
Table 4--Proposed S. 3.272 Derivation Proposed S. 3.272 Derived from, no change, or "new" 3.272(a) through (f) No change. 3.272(g), last sentence New. 3.272(h) through (j) No change. 3.272(k) New. 3.272(l) through (n) No change. 3.272(o) 3.272(q). 3.272(p) 3.272(s). 3.272(q) 3.272(x). 3.272(r) New. 3.272(s) New.
Statutory Change to Medicaid Nursing Home Provision
We propose to amend current 38 CFR 3.551(i) to reference the authorizing statute, 38 U.S.C. 5503(d)(7) rather than to specify the statutory sunset date. Section 203 of Public Law 112-260, enacted
We would also add "surviving child" where appropriate to state that the
Paperwork Reduction Act
This proposed rule includes a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that requires approval by the
Comments on the collections of information contained in this proposed rule should be submitted to the
VA considers comments by the public on proposed collections of information in--
* Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of VA, including whether the information will have practical utility;
* Evaluating the accuracy of VA's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used;
* Enhancing the quality, usefulness, and clarity of the information to be collected; and
* Minimizing the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
The collections of information contained in 38 CFR 3.276 and 3.278 are described immediately following this paragraph, under their respective titles.
Title: Asset Transfers and Penalty Periods.
Summary of collection of information: Under proposed 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. This would also require amendments to the following existing application forms:
* VA Form 21-526, Veterans Application for Compensation and/or Pension, OMB Control Number 2900-0001.
* VA Form 21P-527, Income, Net Worth, and Employment Statement, OMB Control Number 2900-0002.
* VA Forms 21P-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable), and 21P-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits, OMB Control Number 2900-0004.
* VA Forms 21P-527EZ, Application for Pension, OMB Control No. 2900-0002.
Description of the need for information and proposed use of information: The information is needed to ensure that only qualified claimants receive VA needs-based benefits.
Description of likely respondents: Claimants for VA pension or survivor benefits.
Estimated frequency of responses: Once per claim.
Estimated number of respondents per year and respondent burden:
VA form No. OMB control Estimated Estimated Estimated No. number of respondent total annual pension and burden reporting and survivor recordkeeping benefit burden respondents (hours) per year 21-526 2900-0001 25,000 1 hour 25,000 21P-527 2900-0002 25,000 1 hour 25,000 21P-534 2900-0004 25,000 1 hour, 15 31,250 minutes 21P-534EZ 2900-0004 75,000 50 minutes 62,500 21-527EZ 2900-0002 75,000 50 minutes 62,500
Title: Deductible Medical Expenses.
Summary of collection of information: 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. This would also require amendments to the following existing forms:
* The application forms described above in the information pertaining to asset transfers and penalty periods.
* VA Form 21P-8416, OMB Control Number 2900-0161.
Description of the need for information and proposed use of information: The information is needed to ensure that only qualified claimants receive VA needs-based benefits.
Description of likely respondents: Claimants for VA pension benefits.
Estimated number of respondents per year: 60,000 pension claimants.
Estimated frequency of responses: Annual.
Estimated respondent burden: 30,000 hours (30 minutes per form x 60,000 respondents annually).
Regulatory Flexibility Act
The Secretary certifies that this proposed rule would 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 proposed rule would directly affect only individuals and would not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
Executive Orders 12866 and 13563
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) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a "significant regulatory action" requiring review by the OMB, unless OMB waives such review, as "any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of
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 will have an annual effect on the economy of
Unfunded Mandates
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
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this proposed rule are 64.104, Pension for Non-Service-Connected Disability for Veterans, and 64.105, Pension to Veterans Surviving Spouses, and Children.
Signing Authority
The Secretary of
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits, Pensions, Veterans.
Dated:
Acting Director,
For reasons set out in the preamble, VA proposes to amend 38 CFR part 3 as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity Compensation
1. The authority citation for part 3, subpart A continues to read as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. Amend the table in
a. Remove entries (35) through (37) and (39) through (42).
b. Redesignate entry (38) as entry (35).
c. Revise newly designated entry (35).
d. Add entry (36).
The revision and addition read as follows:
* * * * *
(a) Income.
Income Dependency Dependency Pension; Pension; See-- (parents) and old-law section 306 indemnity (veterans, (veterans, compensation surviving surviving (parents) spouses and spouses and children) children) * * * * * * * (35) Income Excluded Excluded Included Included S. 3.262(t). received under Section 6 of the Radiation Exposure Compensation Act (Pub. L. 101-426) (36) Other Excluded Excluded Excluded Excluded S. 3.262(u). payments excluded from income listed in S. 3.279
* * * * *
3. Amend
a. Add a sentence to the end of paragraph (l) introductory text.
b. Remove paragraphs (s), (u), (v), (x), (y), (z), and (aa).
c. Redesignate paragraphs (t) and (w) as paragraphs (s) and (t), respectively.
d. Revise newly designated paragraph (t).
e. Add a new paragraph (u).
The additions and revision read as follows:
* * * * *
(l) * * * For the definition of what constitutes a medical expense, See
* * * * *
(t) Radiation Exposure Compensation Act. For the purposes of parents' dependency and indemnity compensation and dependency of parents under
(u) Other payments. Other payments excluded from income listed in
4. Amend
5. Amend
a. Revise the heading in paragraph (a) by removing " Sections 3.250 to 3.270 " and adding in its place " Sections 3.250 through 3.270 and sections 3.278 through 3.279 ".
b. Revise the note to paragraph (a) by removing "SUBSEC 3.250 to 3.270" and adding in its place "SUBSEC 3.250 through 3.270 and SUBSEC 3.278 through 3.279".
c. Revise the heading in paragraph (b) by removing " Sections 3.271 to 3.300 " and adding in its place " Sections 3.271 through 3.300 ".
6. Amend
* * * * *
(i) Waiver of receipt of income. Potential income that is not excludable under SUBSEC 3.272 or 3.279 but is waived by an individual is included as countable income of the individual. However, if an individual withdraws a claim for
(Authority: 38 U.S.C. 1503(a))
7. Amend
a. Add a sentence to the end of paragraph (g) introductory text.
b. Remove paragraphs (k), (o), (p), (r), (t), (u), (v), and (w).
c. Redesignate paragraphs (q), (s), and (x) as paragraphs (o), (p), and (q), respectively.
d. Add new paragraphs (k), (r), and (s).
e. Revise the authority citation in newly designated paragraph (q).
The additions and revision read as follows:
* * * * *
(g) Medical expenses. * * * For the definition of what constitutes a medical expense, See SEC 3.278, Deductible medical expenses.
* * * * *
(k) Income from certain annuity payments. VA will exclude annuity payments and count, on an annual basis, only the interest components of payments if a claimant or beneficiary (or someone acting on his or her behalf) transfers an asset to an annuity principal and either of the following statements is true:
(1) VA has already considered the fair market value of the transferred asset as the claimant's or beneficiary's asset for VA purposes.
(2) The funds used to purchase the annuity were proceeds from the sale of the claimant's or beneficiary's primary residence that was previously excluded as an asset under
* * * * *
(q) * * *
(Authority: 38 U.S.C. 1503(a)(12))
(r) Veterans' benefits from states and municipalities. VA will exclude from income payments from a state or municipality to a veteran of a monetary benefit that is paid as a veterans' benefit due to injury or disease. VA will exclude up to
(Authority: 38 U.S.C. 1503(a)(11))
(s) Other payments. Other payments excluded from income listed in
8. Revise
(a) Net worth limit. For purposes of entitlement to VA pension, the net worth limit effective [ insert effective date of the final rule after publication in the
(b) When a claimant's or beneficiary's net worth exceeds the limit. Except as provided in paragraph (h)(2) of this section, VA will deny or discontinue pension if a claimant's or beneficiary's net worth exceeds the net worth limit in paragraph (a) of this section.
(1) Net worth means the sum of a claimant's or beneficiary's assets and annual income.
(2) Asset calculation. VA will calculate a claimant's or beneficiary's assets under this section and
(3) Annual income calculation. VA will calculate a claimant's or beneficiary's annual income under
(4) Example of net worth calculation. A surviving spouse has claimed pension. The applicable maximum annual pension rate is
(c) Assets of other individuals included as claimant's or beneficiary's assets. (1) Claimant or beneficiary is a veteran. A veteran's assets include the assets of the veteran as well as the assets of his or her spouse, if the veteran has a spouse.
(2) Claimant or beneficiary is a surviving spouse. A surviving spouse's assets include only the assets of the surviving spouse.
(3) Claimant or beneficiary is a surviving child. (i) If a surviving child has no custodian or is in the custody of an institution, the child's assets include only the assets of the child.
(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. See
(d) How a child's net worth affects a veteran's or surviving spouse's pension entitlement. VA will not consider a child to be a veteran's or surviving spouse's dependent child for pension purposes if the child's net worth exceeds the net worth limit in paragraph (a) of this section.
(1) Dependent child and potential dependent child. For the purposes of this section--
(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) Dependent child net worth. A dependent child's net worth is the sum of his or her annual income and the value of his or her assets.
(3) Dependent child asset calculation. VA will calculate the value of a dependent child's assets under this section and
(4) Dependent child annual income calculation. VA will calculate a dependent child's annual income under
(e) When VA calculates net worth. Except as provided in paragraph (e)(3) of this section, VA calculates net worth only when:
(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) When VA may calculate net worth. 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) How net worth decreases. Net worth may decrease in three ways: assets can decrease, annual income can decrease, or both assets and annual income can decrease.
(1) How assets decrease. A veteran, surviving spouse, or child, or someone acting on their behalf, may decrease assets by spending them on the types of expenses provided in paragraph (f)(1)(i) and (ii) of this section. The expenses must be those of the veteran, surviving spouse, or child, or a relative of the veteran, surviving spouse, or child. The relative must be a member or constructive member of the veteran's, surviving spouse's, or child's household.
(i) Basic living expenses such as food, clothing, shelter, or health care; or
(ii) Education or vocational rehabilitation.
(2) How annual income decreases. See SUBSEC 3.271 through 3.273.
(3) How VA treats payment amounts that can decrease either annual income or assets. When expenses can be considered as either deductible expenses for purposes of calculating annual income under
(4) Example 1. The net worth limit is
(5) Example 2. The net worth limit is
(g) Effective dates of pension entitlement or increased entitlement after a denial, reduction, or discontinuance based on excessive net worth. (1) Scope of paragraph. This paragraph (g) applies when VA has:
(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) Effective date of entitlement or increased entitlement. The effective date of entitlement or increased entitlement is the day net worth ceases to exceed the limit. For this effective date to apply, the claimant or beneficiary must submit a certified statement that net worth has decreased and VA must receive the certified statement before the pension claim has become finally adjudicated under
(h) Reduction or discontinuance of beneficiary's pension entitlement based on excessive net worth. (1) Effective date of reduction or discontinuance. When an increase in a beneficiary's or dependent child's net worth results in a pension reduction or discontinuance because net worth exceeds the limit, the effective date of reduction or discontinuance is the last day of the calendar year in which net worth exceeds the limit.
(2) Net worth decreases before the effective date. If net worth decreases to the limit or below the limit before the effective date provided in paragraph (h)(1) of this section, VA will not reduce or discontinue the pension award on the basis of excessive net worth.
(i) Additional effective-date provisions for dependent children. (1) Establishing a dependent child on veteran's or surviving spouse's pension award results in increased pension entitlement. When establishing a dependent child on a veteran's or surviving spouse's pension award results in increased pension entitlement for the veteran or surviving spouse, VA will apply the effective-date provisions in paragraphs (g) and (h) of this section.
(2) Establishing a dependent child on veteran's or surviving spouse's pension award results in decreased pension entitlement. (i) When a dependent child's non-excessive net worth results in decreased pension entitlement for the veteran or surviving spouse, the effective date of the decreased pension entitlement rate (i.e., VA action to add the child to the award) is the end of the year that the child's net worth decreases.
(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 (i.e., VA action to remove the child from the award) is the date that VA receives a claim for an increased rate based on the child's net worth increase.
(Authority: 38 U.S.C. 1522, 1543, 5110, 5112)
9. Revise
(a) Definitions pertaining to assets. (1) The term assets means the fair market value of all property that an individual owns, including all real and personal property, unless excluded under paragraph (b) of this section, less the amount of mortgages or other encumbrances specific to the mortgaged or encumbered property. VA will consider the terms of the recorded deed or other evidence of title to be proof of ownership of a particular asset. See also
(2) Claimant. (i) Except as provided in paragraph (a)(2)(ii) of this section, for the purposes of this section and
(ii) For the purpose of paragraph (b)(1) of this section, claimant means a pension beneficiary or applicant who is a veteran, a surviving spouse, or a surviving child.
(3) Residential lot area. For purposes of this section, residential lot area means the lot on which a residence sits that is similar in size to other residential lots in the vicinity of the residence, but not to exceed 2 acres (87,120 square feet), unless the additional acreage is not marketable.
(b) Exclusions from assets. Assets do not include the following:
(1) The value of a claimant's primary residence (single-family unit), including the residential lot area, in which the claimant has an ownership interest. VA recognizes one primary residence per claimant. If 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.
(i) Personal mortgage not deductible. VA will not subtract from a claimant's assets the amount of any mortgages or encumbrances on a claimant's primary residence.
(ii) Claimant not residing in primary residence. Although rental income counts as annual income as provided in
(A) A nursing home or medical foster home;
(B) An assisted living or similar residential facility that provides custodial care; or
(C) The home of a family member for custodial care.
(2) Value of personal effects suitable to and consistent with a reasonable mode of life, such as appliances and family transportation vehicles.
(3) Radiation Exposure Compensation Act payments. Payments made under section 6 of the Radiation Exposure Compensation Act of 1990.
(Authority: 42 U.S.C. 2210 (note))
(4) <org>Ricky Ray Hemophilia Relief Fund payments. Payments made under section 103(c) and excluded under section 103(h)(2) of the Ricky Ray Hemophilia Relief Fund Act of 1998.
(Authority: 42 U.S.C. 300c-22 (note))
(5) Energy Employees Occupational Illness Compensation Program payments. Payments made under the Energy Employees Occupational Illness Compensation Program.
(Authority: 42 U.S.C. 7385e(2))
(6) Payments to Aleuts. Payments made to certain Aleuts under 50 U.S.C. App. 1989c-5.
(Authority: 50 U.S.C. App. 1989c-5(d)(2))
(7) Other payments. Other payments excluded from net worth listed in
(Authority: 38 U.S.C. 1522, 1543)
. Revise
(a) Asset transfer definitions. For purposes of this section--
(1) Claimant has the same meaning as defined in
(2) Covered asset means an asset that--
(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) Covered asset amount means the monetary amount by which a claimant's net worth would have exceeded the limit due to the covered asset alone if the uncompensated value of the covered asset had been included in net worth.
(i) Example 1. The net worth limit under
(ii) Example 2. The net worth limit under
(4) Fair market value means the price at which an asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. 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.
(5) Transfer for less than fair market value means--
(i) Selling, conveying, gifting, or exchanging an asset for an amount less than the fair market value of the asset, or
(ii) 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 but for the claimant's attempt to qualify for VA pension by transferring the asset to, or purchasing, the instrument or investment. Examples of such instruments or investments include--
(A) Annuities. Annuity means a financial instrument that provides income over a defined period of time for an initial payment of principal.
(B) Trusts. Trust means a legal arrangement by which an individual (the grantor) transfers property to an individual or an entity (the trustee), who manages the property according to the terms of the trust, whether for the grantor's own benefit or for the benefit of another individual.
(6) Uncompensated value means the difference between the fair market value of an asset and the amount of compensation an individual receives for it. In the case of a trust, annuity, or other financial instrument or investment described in paragraph (a)(5)(ii) of this section, uncompensated value means the amount of money or the monetary value of any other type of asset transferred to such a trust, annuity, or other financial instrument or investment.
(7) Look-back period means the 36-month period immediately preceding the date on which VA receives either an original pension claim or a new pension claim after a period of non-entitlement.
(8) Penalty period means a period of non-entitlement, calculated under paragraph (e) of this section, due to transfer of a covered asset.
(b) General statement of policy pertaining to pension and covered assets. VA pension is a needs-based benefit and is not intended to preserve the estates of individuals who have the means to support themselves. Accordingly, a claimant may not create pension entitlement by transferring covered assets. VA will review the terms and conditions of asset transfers made during the 36-month look-back period to determine whether the transfer constituted transfer of a covered asset. In accordance with
(c) Presumption and exception pertaining to covered assets. In the absence of clear and convincing evidence showing otherwise, VA presumes that an asset transfer made during the look-back period was for the purpose of decreasing net worth to establish pension entitlement and will consider such an asset to be a covered asset. However, VA will not consider such an asset to be a covered asset if the claimant establishes through clear and convincing evidence that he or she 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 VA pension. Evidence substantiating the application of this exception may include a complaint contemporaneously filed with state, local, or Federal authorities reporting the incident.
(d) Exception for transfers to certain trusts. VA will not consider as a covered asset an asset that a veteran, a veteran's spouse, or a veteran's surviving spouse transfers to a trust established on behalf of a child of the veteran if:
(1) VA rates or has rated the child incapable of self-support under
(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) Penalty periods and calculations. When a claimant transfers a covered asset during the look-back period, VA will assess a penalty period not to exceed 10 years. VA will calculate the length of the penalty period by dividing the total covered asset amount by the monthly penalty rate described in paragraph (e)(1) of this section and rounding the quotient down to the nearest whole number. The result is the number of months for which VA will not pay pension.
(1) Monthly penalty rate. The monthly penalty rate is the applicable maximum annual pension rate (MAPR) under 38 U.S.C. 1521(d), 1542(d), or 1543 described in this paragraph (e)(1) that is in effect as of the date of the pension claim, divided by 12, and rounded down to the nearest whole dollar. The MAPRs are located on VA's Web site at http://www.benefits.va.gov/pension/.
(i) If the claimant is a veteran or a surviving spouse, the annual rate is the MAPR at the aid and attendance level for a veteran or a surviving spouse with the applicable number of dependents.
(ii) If the claimant is a child, the annual rate is the child alone MAPR.
(2) Beginning date of penalty period. When a claimant transfers a covered asset or assets during the look-back period, the penalty period begins on the first day of the month that follows the date of the transfer. If there was more than one transfer, the penalty period will begin on the first day of the month that follows the date of the last transfer.
(3) Entitlement upon ending of penalty period. VA will consider that the claimant, if otherwise qualified, is entitled to benefits effective the last day of the last month of the penalty period, with a payment date as of the first day of the following month in accordance with
(4) Example of penalty period calculation: VA receives a pension claim in
(5) Penalty period recalculations. VA will not recalculate a penalty period under this section unless--
(i) The original calculation is shown to be erroneous; or
(ii) VA receives evidence showing that all covered assets were returned to the claimant before the date of claim or within 30 days after the date of claim. If all covered assets were returned to the claimant, VA will not assess a penalty period. For this exception to apply, VA must receive the evidence not later than 60 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 under the provisions of
(Authority: 38 U.S.C. 1522, 1543, 1506(1))
(
11. Amend
12. Add
(a) Scope. This section identifies medical expenses that VA may deduct from countable income for purposes of three of its needs-based programs: Pension, section 306 pension, and parents' dependency and indemnity compensation (DIC). Payments for such medical expenses must be unreimbursed to be deductible from income.
(b) Definitions. For the purposes of this section--
(1) Health care provider means:
(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; and
(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) Activities of daily living (ADL) mean basic self-care activities and consist of bathing or showering, dressing, eating, toileting, and transferring. Transferring means an individual's moving himself or herself from one position to another, such as getting in and out of bed.
(3) Instrumental activities of daily living (IADL) mean independent living activities, such as shopping, food preparation, housekeeping, laundering, managing finances, handling medications, using the telephone, and transportation for non-medical purposes. Managing finances does not include services rendered by a VA-appointed fiduciary.
(4) Custodial care means regular:
(i) Assistance with two or more ADLs, or
(ii) Supervision because an individual with a mental disorder is unsafe if left alone due to the mental disorder.
(5) Qualified relative means a veteran's dependent spouse, a veteran's dependent or surviving child, and other relatives of the claimant who are members or constructive members of the claimant's household whose medical expenses are deductible under SUBSEC 3.262(l) or 3.272(g). A "constructive member" of a household is an individual who would be a member of the household if the individual were not in a nursing home, away at school, or a similar situation. Qualified relatives do not include claimants who are veterans, surviving spouses, or parents.
(6) Nursing home means a facility defined in
(7) Medical foster home means a privately owned residence, recognized and approved by VA under 38 CFR 17.73(d), that offers a non-institutional alternative to nursing home care for veterans who are unable to live alone safely due to chronic or terminal illness.
(8) Assisted living, adult day care, or similar facility means a facility that provides individuals with custodial care. The facility may contract with a third-party provider for this purpose. A facility that is residential must be staffed 24 hours per day with custodial care providers. To be included in this definition, a facility must be licensed if such facilities are required to be licensed in the state or country in which the facility is located.
(c) Medical expenses for VA purposes. Generally, 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. Medical expenses may include, but are not limited to, the payments specified in paragraphs (c)(1) through (7) of this section.
(1) Care by a health care provider. Payments to a health care provider for services performed within the scope of the provider's professional capacity are medical expenses. Cosmetic procedures that a health care provider performs to improve a congenital or accidental deformity or related to treatment for a diagnosed medical condition are medical expenses.
(2) Medications, medical supplies, medical equipment, and medical food, vitamins, and supplements. Payments for prescription and non-prescription medication procured lawfully under Federal law, as well as payments for medical supplies or medical equipment are medical expenses. Medically necessary food, vitamins, and supplements as prescribed or directed by a health care provider authorized to write prescriptions are medical expenses.
(3) Adaptive equipment. Payments for adaptive devices or service animals, including veterinary care, used to assist a person with an ongoing disability are medical expenses. Medical expenses do not include non-prescription food, boarding, grooming, or other routine expenses of owning an animal.
(4) Transportation expenses. Payments for transportation for medical purposes, such as the cost of transportation to and from a health care provider's office by taxi, bus, or other form of public transportation are medical expenses. The cost of transportation for medical purposes by privately owned vehicle (POV), including mileage, parking, and tolls, is a medical expense. For transportation in a POV, VA limits the deductible mileage rate to the current POV mileage reimbursement rate specified by the
(i) Example. In
(ii) [Reserved]
(5) Health insurance premiums. Payments for health, medical, hospitalization, and long-term care insurance premiums are medical expenses. Premiums for Medicare Parts B and D and for long-term care insurance are medical expenses.
(6) Smoking cessation products. Payments for items and services specifically related to smoking cessation are medical expenses.
(7) Institutional forms of care and in-home care. As provided in paragraph (d) of this section.
(d) Institutional forms of care and in-home care. (1) Hospitals, nursing homes, medical foster homes, and inpatient treatment centers. Payments to hospitals, nursing homes, medical foster homes, and inpatient treatment centers (including inpatient treatment centers for drug or alcohol addiction), including the cost of meals and lodging charged by such facilities are medical expenses.
(2) In-home care. Payments for services provided by an in-home attendant are medical expenses. Payments must be commensurate with the number of hours that the provider attends to the disabled person, and the attendant's hourly rate may not exceed the average hourly rate for home health aides published annually by the
(i) Except as provided in paragraphs (d)(2)(ii) and (iii) of this section, the attendant must be a health care provider, and only payments for assistance with ADLs or health care services are medical expenses.
(ii) If a veteran or surviving spouse (or parent, for parents' DIC purposes) meets the criteria in
(A) The attendant does not need to be a health care provider, and
(B) Payments for assistance with IADLs are medical expenses only if the primary responsibility of the attendant is to provide health care services or custodial care. Otherwise, only payments for assistance with health care or custodial care are medical expenses.
(iii) Paragraph (d)(2)(ii) of this section also applies to a qualified relative if a physician or physician assistant states in writing that, due to physical or mental disability, the qualified relative requires the health care services or custodial care that the in-home attendant provides.
(3) Assisted living, adult day care, and similar facilities. Certain payments to assisted living, adult day care, and similar facilities are medical expenses. Except as provided in paragraphs (d)(3)(i) and (ii) of this section, only payments for health care services or assistance with ADLs provided by a health care provider are medical expenses.
(i) If a veteran or surviving spouse (or parent for parents' DIC purposes) meets the criteria in
(A) The care does not need to be provided by a health care provider, and
(B) Medical expenses include all payments to the facility, to include meals and lodging, if the primary reason for the veteran or surviving spouse to be in the facility is to receive health care services or custodial care that the facility provides. Otherwise, only payments for assistance with health care or custodial care are medical expenses.
(ii) Paragraph (d)(3)(i) of this section also applies to a qualified relative if a physician or physician assistant states in writing that, due to mental or physical disability, the qualified relative requires the health care services or custodial care that the facility provides.
(e) Non-medical expenses for VA purposes. Payments for items and services listed in paragraphs (e)(1) through (5) of this section are not medical expenses for VA needs-based benefit purposes. The list is not all-inclusive.
(1) Maintenance of general health. Payments for items or services that benefit or maintain general health, such as vacations and dance classes, are not medical expenses.
(2) Cosmetic procedures. Except as provided in paragraph (c)(1) of this section, cosmetic procedures are not medical expenses.
(3) Meals and lodging. Except as provided in paragraph (d) of this section, payments for meals and lodging are not medical expenses. This category includes payments to facilities such as independent living facilities that do not provide health care services or custodial care.
(4) Assistance with IADLs. Except as provided in paragraph (d) of this section, payments for assistance with IADLs are not medical expenses.
(5) VA fiduciary fees. Fees for VA-appointed fiduciary services are not medical expenses.
CROSS REFERENCES: For the rules governing how medical expenses are deducted, see
(Authority: 38 U.S.C. 501(a), 1315(f)(3), 1503(a)(8), 1506(1))
(
13. Add
(a) Scope of section. 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), aka, net worth or the corpus of the estate (section 306 pension and parents as dependents for compensation).
Program or payment Income Assets Authority (corpus of the estate) (b) COMPENSATION OR RESTITUTION PAYMENTS (1) Relocation payments. Payments to Excluded Included 42 U.S.C. individuals displaced as a direct result of 4636. programs or projects undertaken by a Federal agency or with Federal financial assistance under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (2) Crime victim compensation. Amounts Excluded Excluded 42 U.S.C. received as compensation under the Victims of 10602(c). Crime Act of 1984 unless the total amount of assistance received from all federally funded programs is sufficient to fully compensate the claimant for losses suffered as a result of the crime (3) Restitution to individuals of Japanese Excluded Excluded 50 U.S.C. ancestry. Payments made as restitution under App. Public Law 100-383 to an individual of 1989b-4(f). Japanese ancestry who was interned, evacuated, or relocated during the period ofDecember 7, 1941 , throughJune 30, 1946 , pursuant to any law, Executive Order, Presidential proclamation, directive, or other official action respecting these individuals (4) Victims of Nazi persecution. Payments Excluded Excluded 42 U.S.C. made to individuals because of their status 1437a note. as victims of Nazi persecution (5) Agent Orange settlement payments. Excluded Excluded Sec. 1, Payments made from the Agent Orange Public Law Settlement Fund or any other fund established 101-201. pursuant to the settlement in the In Re Agent Orange product liability litigation, M.D.L. No. 381 (E.D.N.Y.) (6) Chapter 18 benefits. Allowances paid Excluded Excluded 38 U.S.C. under 38 U.S.C. chapter 18 to a veteran's 1833(c). child with a birth defect (7) Flood mitigation activities. Assistance Excluded Excluded 42 U.S.C. provided under the National Flood Insurance 4031. Act of 1968, as amended (c) PAYMENTS TO NATIVE AMERICANS (1) Indian Tribal Judgment Fund Excluded Excluded 25 U.S.C. distributions. All Indian Tribal Judgment 1407. Fund distributions excluded from income and net worth while such funds are held in trust. First$2,000 per year of income received by individual Indians under the Indian Tribal Judgment Funds Use or Distribution Act in satisfaction of a judgment of theUnited States Court of Federal Claims excluded from income (2) Interests of individual Indians in trust Excluded Excluded 25 U.S.C. or restricted lands. Interests of individual 1408. Indians in trust or restricted lands excluded from net worth. First$2,000 per year of income received by individual Indians that is derived from interests in trust or restricted lands excluded from income (3) Per Capita Distributions Act. First Excluded Excluded 25 U.S.C.$2,000 per year of per capita distributions 117b, to members of a tribe from funds held in 25 U.S.C. trust by the Secretary of the Interior for an 1407. Indian tribe. All funds excluded from income and net worth while funds are held in trust (4) Submarginal land. Income derived from Excluded Excluded 25 U.S.C. certain submarginal land of the United States 459e. that is held in trust for certain Indian tribes (5) Old Age Assistance Claims Settlement Act. Excluded Excluded 25 U.S.C. Up to$2,000 per year of per capita 2307. distributions under the Old Age Assistance Claims Settlement Act (6) Alaska Native Claims Settlement Act. Any Excluded Excluded 43 U.S.C. of the following, if received from a Native 1626(c). Corporation, under the Alaska Native Claims Settlement Act: (i) Cash, including cash dividends on stocks and bonds, up to a maximum of$2,000 per year; (ii) Stock, including stock issued as a dividend or distribution; (iii) Bonds that are subject to the protection under 43 U.S.C. 1606(h) until voluntarily and expressly sold or pledged by the shareholder after the date of distribution; (iv) A partnership interest; (v) Land or an interest in land, including land received as a dividend or distribution on stock; (vi) An interest in a settlement trust. (7) Maine Indian Claims Settlement Act. Excluded Excluded 25 U.S.C. Payments received under the Maine Indian 1728. Claims Settlement Act of 1980 (8) Cobell Settlement. Payments received Excluded Excluded Sec. 101, under Cobell v. Salazar, Civil Action No. for one for one Public Law 96-1285 (TFH) (D.D.C.) year year 111-291. (d) WORK-RELATED PAYMENTS (1) Workforce investment. Allowances, Excluded Included 29 U.S.C. earnings, and payments to individuals 2931(a)(2). participating in programs under the Workforce Investment Act of 1998 (29 U.S.C. chapter 30) (2) AmeriCorps participants. Allowances, Excluded Included 42 U.S.C. earnings, and payments to AmeriCorps 12637(d). participants under the National and Community Service Act of 1990 (3) Volunteer work. Compensation or Excluded Excluded 42 U.S.C. reimbursement to volunteers involved in 5044(f). programs administered by theCorporation for National and Community Service , unless the payments are equal to or greater than the minimum wage. The minimum wage is either that under the Fair Labor Standards Act of 1938 (29 U.S.C.201 et seq.) or that under the law of the state where the volunteers are serving, whichever is greater (e) MISCELLANEOUS PAYMENTS (1) Food stamps. Value of the allotment Excluded Excluded 7 U.S.C. provided to an eligible household under the 2017(b). Food Stamp Program (2) Food for children. Value of free or Excluded Excluded 42 U.S.C. reduced-price for food under the Child 1780(b). Nutrition Act of 1966 (3) Child care. Value of any child care Excluded Included 42 U.S.C. provided or arranged (or any amount received 9858q. as payment for such care or reimbursement for costs incurred for such care) under the Child Care and Development Block Grant Act of 1990 (4) Services for housing recipients. Value of Excluded Included 42 U.S.C. services, but not wages, provided to a 8011(j)(2). resident of an eligible housing project under a congregate services program under theCranston-Gonzalez National Affordable Housing Act (5) Home energy assistance. The amount of any Excluded Excluded 42 U.S.C. home energy assistance payments or allowances 8624(f). provided directly to, or indirectly for the benefit of, an eligible household under the Low-Income Home Energy Assistance Act of 1981 (6) Programs for older Americans. Payments, Excluded Included 42 U.S.C. other than wages or salaries, received from 3020a(b). programs funded under the Older Americans Act of 1965, 42 U.S.C. 3001 (7) Student financial aid. Amounts of student Excluded Excluded 20 U.S.C. financial assistance received under Title IV 1087uu, of the Higher Education Act of 1965, 2414(a). including Federal work-study programs,Bureau of Indian Affairs student assistance programs, or vocational training under the Carl D. Perkins Vocational and Technical Education Act of 1998 (8) Retired Serviceman's Family Protection Excluded Included 10 U.S.C. Plan annuities. Annuities received under 1441. subchapter 1 of the Retired Serviceman's Family Protection Plan
(Authority: 38 U.S.C. 501(a))
14. Amend
* * * * *
(c) Medicaid-covered nursing home care (
(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.
(Authority: 38 U.S.C. 501, 1832, 5112(b), 5503(d))
15. Amend
* * * * *
(i) Certain beneficiaries receiving
* * * * *
16. Amend
[FR Doc. 2015-00297 Filed 1-22-15;
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