State of Florida VA Nursing Homes Fail to Follow Federal Law Financially Harming Wives of Chronically ILL Veterans

12/15/2008 by Jack M. Rosenkranz, J.D.

Updated 1/7/2009

Warning! This is not intended to be legal advice, prior to acting on any information below I strongly recommend you get tailored advice to your facts and conditions.  This is being posted for educational purposes, to change the Florida law to follow federal law on the issue.

The State of Florida Department of Veteran Affairs operates five nursing homes for veterans. It is paid for through many funding sources, one of which is Medicaid, and state and federal entitlement program.   Medicaid's funding is only available as a last resort. In the State of Florida, your Medicaid eligibility is determined by the Department of Children and Family Services. However, the State Veterans Nursing Homes have required payments over and above amounts established by the Department of Children and Family Services.

The issue of a veteran’s financial responsibility to the State of Florida Veterans Nursing Home has been unresolved for more than ten years, due to a major misunderstanding of Federal Law.

Most chronically ill veterans in a nursing home are eligible for the VA pension benefit known as Aid and Attendance. Roughly speaking, veterans qualify for Aid and Attendance if their medical expenses exceed their income and they have a modest amount of assets.   In the State of Florida, there is currently a discrepancy between the federal and state law for those veterans residing in veterans nursing homes. 

Veterans seldom access this monthly pension benefit, which  is composed of three components: the Improved Income Pension ($1,220), an additional payment for Aid and Attendance  ($ 334) and an additional supplemental payment if the Veteran is married($288).  If a Veteran has less income than $1,220, some of the Improved Pension, the difference between the income and the $1220 may be counted as unearned income. However, for Veterans with higher income, all of the Improved Pension should be considered a reimbursement for unreimbursed medical expense when paid to the nursing home.  It is because of the payment to nursing home that the veteran qualifies for the pension.

All of these payments are counted as income for those veterans in State of Florida Veteran Nursing Homes.  Florida Law requires payment of these funds directly to said nursing homes.

In 1997, the prior VA policy and regulation were enacted into Federal Law, to eliminate issue for married veterans that the amounts paid for Aid and Attendance and the additional increase for the spouse of a veteran would not be counted as income to the veteran.  The State of Florida to this day has a law, which has grown stale and must be changed. 

In fact in all other nursing homes the federal law is honored. 

The State of Florida Department of Veteran affairs relies on Florida Statue 296.37. 

(1)  Every resident of the home who receives a pension, compensation, or gratuity from the United States Government, or income from any other source of more than $35 per month, shall contribute to his or her maintenance and support while a resident of the home in accordance with a schedule of payment determined by the administrator and approved by the director. The total amount of such contributions shall be to the fullest extent possible, but, in no case, shall exceed the actual cost of operating and maintaining the home.

This reliance is contrary to the Department of Children and Families 2003 Transmittal, which tracks the Federal Law.  In November of 2008, the Department of Children and Families updated their policy manual to make it very clear that the state would instruct their eligibility workers to follow the federal law.

The Florida Department of Veterans Affairs web site describes the "state agency [as] responsible for assisting, without charge to the claimant, Florida's 1.8 million veterans, their families and survivors in improving their health and economic well-being through quality benefit information, advocacy, education and long-term health services. The department operates five veterans' nursing homes and one assisted living facility through the State Veterans' Homes Program."

The statute 292.05 also charges the department to "survey ... federal, state, public, and private moneys available that could be used to defray the costs of state or community services needed for such persons" 

At times this can create a conflict of interest if veteran service officers and staff of state veterans homes fail to advise veterans and their spouses accurately of their choices so that the State can take advantage of funds that could be used to support their wives in the community.

Here is an example of how this should work and how it saves the state of Florida money:

HYPO

Dwight, 83, and Mimi, 80, live in the Tampa Bay area. In May Dwight had a stroke and required long term care in a nursing home.

Under Medicaid, Dwight can shift his all of his income to Mimi. The Medicaid Program will pay for his total care, no payment from Dwight.  However if Dwight pays all of his income for his care the State of Florida pays less and his wife Mimi can receive more money.

How this could be done using Aid and Attendance.

He receives $1,133.00 a month from social security. His wife has only $500 in social security income. His wife has a bank account of $80,000.  Together they own their home and a car.

Dwight is admitted to Baldomero Lopez, the State of Florida Veteran Nursing Home near Tampa.  Dwight is encouraged to seek Aid and Attendance to help pay for his care, and receives it five months later.  The first check, a lump sum payment, was for $9,210.00 and a second for $1,842.00

There is much confusion as to what is considered income, unreimbursed medical expenses, Aid & Attendance and the spouse's increase for Aid &Attendance.  Each of these amounts are unique in the income determination.

Based on the above, the amount that would be counted for Medicaid purposes as countable income is $87.00 per month.  As the lump sum is for 5 months of VA benefits, the countable income of $87.00 is multiplied by 5 to determine the countable income to Dwight under Medicaid. 

This equates to $435.00 ($87.00 x 5), which when added to the $1,133.00,  Dwight receives, equals $1,568.00 of monthly income for the month October.  This amount is less than $1,911.00, the threshold amount for the income cap for Medicaid eligibility and need for a  Qualified Income Trust.   

Since the Dwight can use the money as he pleases, he may give it to Mimi.  How much does Mimi receive?  Answer $1,755

This is good for the state of Florida and Mimi.

Change can be good.  However this only affects a small number of veterans, less than 100 a year in the state veterans nursing homes. The state should pay more attention to the fairness for those vets on Aid & Attendance who are on Medicaid.  They sacrificed for us, serving our government in a time of need.  Isn’t it time our government returns the favor?

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Jack Rosenkranz is an Advocate for Florida Elders. For more information he can be reached at 813 223- 4195

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