Elder Law Prof Blog

A Veterans' Low Interest Mortgage Program that Doesn't Quite Add Up?

Today, Veterans' Day, I caught an interesting radio piece on the marketing of supposedly low-interest-rate loans for those who are or have service in U.S. military branches. I've been teaching a Nonprofit Organizations Law course this semester at Dickinson Law, and the lack of transparency in the various loan programs reminded me of a student's presentation about a "veterans' benefit" nonprofit organization that, until recently, seemed to be doing more fundraising for the organizers than for the military service people.  Misuse of "charitable" missions is a topic we explore in the class.

But, I caught the program a second time while driving.  The second time around I realized that the story started with a curious segment with a particular veteran who was describing his recent struggle with a misleading veteran-friendly loan company that charged more, not less, than conventional loans.  This time, I realized the interview included a tour of the older vet's lovely home on the water in Florida, and of his various boats. The borrower was clearly proud, and rightly so, and the interviewer even admitted to a bit of envy.  The loan he was seeking was to refinance about $350k for what seemed to be pretty high-end living and it was easy to be glad the older gentleman has done well in his post-service life. 

The radio interview and the accompanying article at NPR's Morning Edition site described low-interest loans, "backed by the U.S. Department of Veterans Affairs" as a "perk" offered to vets and service members in honor of their service. Wait a minute.  This wasn't a struggling veteran getting started in civilian life, perhaps needing help to buy a first or second home or to fund to start a new business.  This veteran was struggling to find the best terms in a veteran-friendly program -- not to "get" a loan.  

My reaction the second time while listening to the program about misleading loans to veterans was "wouldn't it be better if all consumers could rely on transparency and fairness in lending rates and terms?" 

GAO Report: Protecting Vets from Financial Exploitation

The GAO recently issued this report, Veterans Benefits: Actions VA Could Take to Better Protect Veterans from Financial Exploitation. Here are the highlights from the report

Why This Matters

Veterans with disabilities who receive benefits from the Department of Veterans Affairs (VA) can be tempting targets for exploitation and scams. Veterans and their survivors who need help performing everyday activities, like bathing and dressing, can receive increased pension benefits known as aid and attendance.

Key Takeaways

VA paid $3.2 billion in total pension benefits to 232,000 recipients of aid and attendance in fiscal year 2018. Most recipients were over 80.

Scams that target them include:

• being overcharged for home care, or charged for services they did not receive, and

• getting bad investment advice from financial services organizations.

VA does not centrally collect and analyze information, such as complaints made against companies, that could show the prevalence of these scams, help VA target outreach to veterans, and help law enforcement go after scammers.

Other threats to veterans include:

• VA’s applications do not warn them about exploitation or scams: For example, forms do not warn veterans that they cannot be charged fees for filing claims.

• Misdirected benefit payments: VA does not always verify direct deposit information on applications, which could lead to payments being stolen. In contrast, the Social Security Administration verifies this information by reviewing individuals’ checks or account statements.

• What GAO Recommends

  We made four recommendations to VA, including that it collect better information on potential financial exploitation, post warnings on applications, and examine if it should take more steps to verify veterans' direct deposit information. VA agreed in principle with the need to collect better information, but its proposed actions do not fully address our concerns. VA agreed with the other three recommendations.

The full report is available here.

Veterans Victims of Consumer Scam

The New York Times recently reported indictments against five perpetrators of an identity theft scam that targeted vets.

5 Indicted in Identity Theft Scheme That Bilked Millions From Veterans explains how the scam worked:

First, they secretly photographed the Social Security and bank account numbers of thousands of veterans and senior military members on a computer screen at a United States Army base in South Korea.

Then, they used the personal information to withdraw or reroute millions of dollars in disability benefits and other payments made to veterans. The stolen funds were later wired to the bank accounts of so-called money mules and laundered so that they could not be traced.

The perpetrators were charged with aggravated identity theft, wire fraud and conspiracy according to the article.  Described as the largest ever perpetrated against military personnel, "the personal information of more than 3,000 veterans and military personnel had been compromised over a period from 2014 to 2019. Many of the victims were disabled and older, and were unlikely to access their account information online." DOJ is still looking to identify victims.  "The Justice Department and Veterans Affairs are in the process of notifying victims and trying to help them recover lost funds."

VA Nursing Homes-Call For Action

Last week The Hill ran an opinion piece, Patients in VA nursing homes are suffering — Wilkie needs to take responsibility. Responding to stories about poor care, the Secretary of the VA "responded that VA’s nursing homes 'care[ ] for sicker and more complex patients in its nursing homes than do private facilities.'" Although that may be true, the article notes, that is not a justification for poor care and the reported issues "are easily preventable and are not complex problems."  This follows the VA release of "a series of inspection reports detailing deficiencies in 52 out of 99 nursing home care facilities that caused “actual harm” to veterans."  Those numbers should give everyone pause.  The author calls for more "accountability [from the VA] by accepting responsibility for the problems outlined in them rather than making excuses and deflecting." Distinguishing between accepting responsibility and blame, the author offers that "[a] culture of responsibility is a greater asset to an organization like VA than the things we most often hear about, such as an increased budgets or legislative changes."

Click here to read the USA Today story about the deficiencies found in the VA nursing homes.

 

Change in Process to Appoint Administrative Judges

The Washington Post recently ran an article about changes to the system of selecting Veterans law judges (or ALJs) within the Board of Veterans Appeals and whether that is affecting their impartiality.  The story, I’ve never seen these positions politicized’: White House rejection of veterans judges raises concerns of partisanship is primarily about the rejection of candidates for positions within the Board of Veterans Appeals. This excerpt from the article gives you the background

The Board of Veterans’ Appeals has long filled a nonpartisan role in the federal government, run by dozens of judges charged with sorting through a thicket of regulations to determine whether an injured veteran is entitled to lifetime benefits.

But this summer, the White House rejected half of the candidates selected by the board chairwoman to serve as administrative judges, who make rulings on the disability claims. The rejections came after the White House required them to disclose their party affiliation and other details of their political leanings, according to documents viewed by The Washington Post.

Such questions had not been asked of judge candidates in the past, according to former judges and board staff.

As part of the process, the candidates were asked to provide links to their social media profiles and disclose whether they had ever given a speech to Congress, spoken at a political convention, appeared on talk radio, or published an opinion piece in a conservative forum such as Breitbart News or a liberal one such as Mother Jones, according to one candidate, who requested anonymity because the person is not authorized to speak to the media.

The rejected applicants are three Democrats and an independent. Of the four accepted by the White House and sworn in last week, three are Republicans, and one has no party affiliation but has voted in GOP primaries, according to documents and interviews.

The article quotes an administration official who explained that this is designed to get the best people for the job. But remember another change that happened this summer, about which we previously blogged. "The new approach at VA comes as the White House for the first time turned another class of administrative judges from civil servants into political appointees, reflecting an emerging conservative legal movement to involve the president in naming government adjudicators... Citing a Supreme Court decision, the Trump administration announced in July that administrative law judges, most of whom rule on disability claims for the Social Security Administration, would now be appointed by the president." The rest of the article examines the caseload of veterans appeals and the need for judges for the appeals system.

VA Posts "Annual" Comparative Ratings for Veterans Nursing Homes (but, is that enough?)

A recent press release from Department of Veterans Affairs announced the VA's  decision to release "annual" ratings for its nursing homes.  From the opening words, the language in the notice is, shall we say, interesting.

Today [June 12, 2018] the U.S. Department of Veterans Affairs (VA) extended its unprecedented 18-month record of transparency disclosures by making public for the first time its annual nursing home ratings. View the ratings here.

 

The data show that, overall, VA’s nursing home system – composed of more than 130 community living centers – compares closely with private sector nursing homes, even though the department on average cares for sicker patients in its nursing homes than do private facilities.

 

In fact, the overall star rating for VA’s nursing homes compared to the 15,487 private sector nursing homes rated by the Centers for Medicare and Medicaid Services (CMS) shows that VA has a significantly lower percentage (34.1 percent lower) of one-star, or lowest rated, facilities than the rest of the nation.

    

Of note, 60 of VA’s nursing homes improved their quality score from last year to this year (2^nd Quarter FY17 to 2^ndQuarter FY18).  Only one facility had a meaningful decline in that metric, and that facility was already rated with four stars.

 

Extending President Trump’s Commitment to VA Transparency, Quality Improvement

 

For years, the Obama administration had resisted making certain VA quality data public. But under President Trump’s leadership, transparency and accountability have become hallmarks of VA.... 

In addition to the press release, interested readers will want to follow USA TODAY and Boston Globe articles analyzing statistical reports from the VA, including Secret VA Nursing Home Ratings Hide Poor Quality Care From the Public (June 17, 2018); Lawmakers Demand Secrete NVA Nursing Home Data Be Released After USA TODAY, Boston Globe Report (June 19, 2018).   

On June 20, 2018, USA Today followed up its series of articles with an editorial, pointing to incomplete information released by the VA:

Veterans can now go online to see comparative data for VA hospitals and outpatient clinics and choose private alternatives if VA care is wanting. But Veterans Affairs evidently hasn't yet learned that lesson for its operation of nursing homes. Though it released limited appraisal information after reporters inquired, the agency continues to withhold underlying quality data such as infection and injury rates at its elderly care facilities.

 

This information needs to be made public, not just when reporters ask for it but for any veteran or family of a veteran considering care at a VA nursing home. Private nursing homes are required by federal law to make this information available, and so should taxpayer-financed VA facilities. 

From the Boston Globe, A Story That Raises Lots of Questions about Timeliness of VA Aid & Attendance Benefits

The Boston Globe has a lengthy article about one couple's struggle to get VA approval for Aid & Attendance pension benefits when they transferred from their own home to a nursing home.  Oddly, the delays in approval appear to be tied, at least in part, to the contention that as both the husband and the wife were Marine veterans, the applications must be processed "simultaneously."  Is that really true?  Here are some of the key -- and often sad -- details of the family's struggle:

 

Moseley [an director at the couple's nursing home] said she placed several calls to the VA while Robert DiCicco [85 year-old husband] the listened from his wheelchair. Each call ended the same way — no approval, no update on where things stood, no firm information at all.

 

“I told them that these veterans could be homeless if it wasn’t for our home taking them in, and that they needed to be approved very soon,” Moseley said. “It wasn’t something that was very important to the VA. The disappointment that would come across his face was heartbreaking.” In her 35-year career, Moseley said, she has never handled a more difficult case involving the VA.

 

VA officials said the DiCicco case is complicated because, under law, pension claims for two married veterans must be processed simultaneously, and that [wife] Mary Lou DiCicco’s claim required additional, time-consuming verification of her military service. 

 

The VA said that “regrettably, our efforts to establish entitlement resulted in delays.”

The agency needed only 59 days on average to resolve pension claims in February, including aid and attendance requests, the VA said. The overall goal is to resolve all claims, including disability and pension applications, within 125 days — a standard that was met 91 percent of the time in fiscal 2017, said James Blue, spokesman for the VA’s North Atlantic District. 

 

But many veterans advocates and lawyers who work on VA claims said the process often can take 12 to 18 months. Lesa Jacob-Pollich, the veterans service officer for Saline County, where the DiCiccos live, said she watched helplessly while the family waited month after month for an answer.

For the full story, read For These Veterans, Dealing with VA Has Been A Relentless Fight, by Brian MacQuarrie for the Boston Globe, published March 24, 2018.

Veterans Victims of Financial Elder Abuse

Boots on the Ground - Fighting Financial Abuse of Elder Veterans explains the Veterans Benefits Protection Project. "One form of financial abuse targets elder veterans and their families, promising to assist them with qualifying for veterans benefits through the sale of unsuitable financial products and irrevocable living trusts. These scams threaten the health, safety, and financial well-being of thousands of elder veterans across the country."  The project started "outreach and website last Veterans Day to share reliable resources for veterans and professionals working with veterans. Since then, the IOA has conducted 14 trainings to over 725 individuals, notified and trained administrators at all licensed residential care facilities and senior centers in San Francisco about the scam, and received an Aging Innovation Award from the National Association of Area Agencies on Aging."

Here's an explanation about the scam

Financial predators have been making large commissions by selling medium-and-high wealth seniors unnecessary or unsuitable financial products or services. They tell the seniors that in order to get the benefit, they need to “appear impoverished,” and they can accomplish that by converting their assets into their “veteran-friendly estate plan.” Seniors who follow their advice end up with irrevocable trusts or financial products that tie up their money so they cannot access it for the rest of their lives, while the predators walk away with large commissions or service fees for their “help.”

This multi-agency project offers resources and materials for veterans and families and professionals working with veterans.

Medicaid and Veterans

Medicaid has been in the news frequently of late, as Congress debates the repeal of the Affordable Care Act.  Kaiser Family Foundation released a new infographic on the relationship of Medicaid and veterans. Medicaid’s Role in Covering Veterans explains how Medicaid works as a safety net for veterans, helps with coverage for vets with complex medical issues, and provides federal matching funds (which may be affected by the repeal of the ACA).  The infographic provides demographic data, lists the conditions of veterans (by percentages) on Medicaid and explains what would happen if Medicaid funding were reduced. 

Veteran's Family Caregiver Support

According to a recent article in the Washington Post, not all family caregivers of vets are treated equally. Law makes VA treat some family caregivers better than others explains that  for "veterans injured on duty, Uncle Sam pays more attention to some of their caregivers than others. The law allows the government to provide caregiver services for vets injured on Sept. 11, 2001, or after, but not those injured before that ...." On June 19, 2017, the Disabled American Veterans (DAV) organization released a report about its efforts, the "Unsung Heroes Initiative" to change the law. The DAV describes this, according to the article, as  “a national campaign to raise awareness about the service and sacrifice of caregivers to America’s severely disabled veterans as well as the inequities of supports available, particularly for those injured before 9/11.”  Bills are before Congress to change the law "that would make all veterans, no matter when they served, eligible for the caregiver support."  The article also references a recent Veterans' Affairs Committee hearing on budgets, with testimony, etc. available here.

Veterans "Hidden" Benefits

Kiplinger's ran an article about less noticed veterans benefits. Vets, Don't Miss Out on 'Hidden Benefits' discusses life insurance, hearing aids, spouse and dependent benefits (DIC), health insurance, directed care, Agent Orange benefits, Aid & Attendance, home modification and coverage for conditions from the water at Camp Lejeune  to name a few.  The article offers information about eligibility, where to get help, how to apply for benefits and more.

21st Century Cures Act

The Senate passed the 21st Century Cures Act, HR 34, on December 7, 2016. Having already passed the House, the bill goes to the President for signature.  There are two specific provisions in the Cures Act that bear mention:

The Special Needs Trust Fairness Act in section 5007, which allows a beneficiary with capacity to establish her own first-party SNT (finally) and Section 14017 which deals with capacity of Veterans to manage money.

Section 5007 provides:

SEC. 5007. Fairness in Medicaid supplemental needs trusts.

(a) In general.—Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)) is amended by inserting “the individual,” after “for the benefit of such individual by”.

(b) Effective date.—The amendment made by subsection (a) shall apply to trusts established on or after the date of the enactment of this Act.

Section 14017 amends 38 USC chapter 55 by adding new section 5501A "Beneficiaries’ rights in mental competence determinations"

“The Secretary may not make an adverse determination concerning the mental capacity of a beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title unless such beneficiary has been provided all of the following, subject to the procedures and timelines prescribed by the Secretary for determinations of incompetency:

“(1) Notice of the proposed adverse determination and the supporting evidence.

“(2) An opportunity to request a hearing.

“(3) An opportunity to present evidence, including an opinion from a medical professional or other person, on the capacity of the beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title.

“(4) An opportunity to be represented at no expense to the Government (including by counsel) at any such hearing and to bring a medical professional or other person to provide relevant testimony at any such hearing.”.

The effective date for the VA amendment is for "determinations made by the Secretary of Veterans Affairs on or after the date of the enactment...."

The President is expected to sign the bill soon. More to follow.

Remembering Pearl Harbor

Remembering all of those of the Greatest Generation who gave so much.

LeadingAge's Annual Meeting Begins October 30 in Indianapolis

LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October.  This year's theme is "Be the Difference," a call for changing the conversation about aging.  I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns.  For example, this year's line up of workshops and topics includes:

• General sessions featuring Pulitzer Prize winning journalist Charles Duhigg on the "The Science of Productivity," 2013 MacArthur Fellow and psychologist Angela Duckworth on the the importance of grit and perservance for successful leadership, and famed neurosurgeon and speaker Sanjay Gupta on "Medicine and the Media." 
• Hundreds of sessions, organized by "interest groups":

  Board of Directors/Trustees

  Facilities Management 

  Home and Community Based Services

  Affordable Housing

  Workforce Issues

  Philanthropy

ABA Family Law Quarterly Focuses on "Gray Divorces and Silver Separations"

This week my in-basket sported the latest copy of the Family Law Quarterly and it is a strong lineup of symposium authors writing on a range of issues connected to late-in-life marital woes.  The articles in the Spring 2016 issue include:

• The Challenging Phenomenon of Gray Divorces, by Paula G. Kirby & Laura S. Leopardi
• Representing the Elderly Client or the Client with Diminished Capacity, by Robert B. Fleming
• The Battle for the Biggest Assets: Dissolution of the Military Marriage and Postdivorce Considerations for Aging Clients, by Brentley Tanner
• Residence Roulette in the Jurisdictional Jungle: Where to Divide the Military Pension, by Mark E. Sullivan
• Family Support, Garnishment and Military Retired Pay, also by Mark E. Sullivan
• Premarital Agreements for Seniors, by Peter M. Walzer & Jennifer M. Riemer, and 
• Financial Abuse of the Dependent Elder: A Lawyer's Ethical Obligations, by Jeanne M. Hannah

In my review of the articles, I would have liked to see more discussion of the potential expectations  of the couple about payment of their respective long-term care costs, especially as a party's carefully signed premarital agreement may prove to be irrelevant to the state's analysis of eligibility for Medicaid to cover long-term care.  In most states, authorities insist on counting assets of both halves of the couple, without regard to any premarital agreement.  This is where "elder law" attorneys can be of help to traditional "family law" attorneys in planning.  Compare this Elder Law Answers' discussion of "Five Myths About Medicaid's Long-Term Care Coverage."

Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania

In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute.  This year the program, in its 19th year, will take place on July 21-22.  It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event.  Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida.  He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.

Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level.  The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars." 

I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues.   So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.

Here is a link to pricing and registration information.  Just two weeks away!

 

University of Hawaii Elder Law Program Celebrates 25th Year

The University of Hawaii William S. Richardson School of Law recently celebrated the 25th anniversary of its Elder Law program with a half-day educational program for the public on veterans rights. The program included a question and answer session with the Honorable Coral Pietsch, a judge on the U.S. Court of Appeals for Veterans Claims (CAVC). Judge Pietsch offered an overview of CAVC and covered unique aspects of practice before this court.

Judge Pietsch is the spouse of University of Hawaii Law Professor James Pietsch, who launched the Elder Law and Veterans Clinics at the law school. Together, they reflected on their service as military lawyers on active duty, in the Army Reserve and as civilian Rule of Law Advisors in Iraq.

For more on Professor Pietsch's interesting career see our earlier Elder Law Prof Blog profile.

The Gerontologist Special Issue on Veterans

The February 2016 issue of The Gerontologist is devoted to Veterans issues.  The issue contains a number of articles on a variety of interesting topics. Check it out!

Register Now-Webinar on Veterans Pension Benefits

The ABA is offering a webinar on VA Pension: Income Security for Veterans and Their Family.  The 90 minute webinar is scheduled for November 17th, 2015 from 1-2:30 p.m. est. The website offers the following description of the webinar

This webinar will cover eligibility of veterans and their dependents for VA pension.

Panelists will discuss how to get the best results for a client looking to obtain a VA pension. Practical pointers on obtaining the highest amount for pension will be discussed, as well as how a client can keep that amount each year. Practice tips on dealing with a VA debt—due to an overpayment issue related to a VA pension—will also be provided. This presentation will give practitioners an understanding of the law and provide practical tips on how to work within the confines of the VA.

To register, click here.

Kudos to my Stetson colleague, Stacey-Rae Simcox, one of the panelists!

2015 National Aging & Law Conference

The National Aging & Law Conference is scheduled for October 29-30, 2015 at the Hilton Arlington, Arlington, VA. A number of ABA commissions and divisions are sponsors of this conference including the Commission on Legal Problems of the Elderly, the Coordinating Committee on Veterans Benefits & Services, the Senior Lawyers Division and the Real Property, Trust & Estate Law Section.  The website describes the conference

The 2015 National Aging and Law Conference (NALC) will bring together substantive law, policy, and legal service development and delivery practitioners from across the country.  The program will include sessions on Medicare, Medicaid, guardianship, elder abuse, legal ethics, legal service program development and delivery, consumer law, income security, and other issues.

The 2015 National Aging and Law Conference marks the second year that this conference has been hosted by the American Bar Association. This year’s agenda will include 24 workshops and 4 plenary sessions on key topics in health care, income security, elder abuse, alternatives to guardianship, consumer law, and  legal service development and delivery.  The focus of the agenda is on issues impacting law to moderate income Americans age 60 and over and the front line advocates that serve them. 

The agenda is available here. To register, click here.  Early bird registration ends August 28, 2015.