How to Appeal a decision

Discussion in 'Surviving Spouse Application' started by twstdsister74, Feb 16, 2015.

  1. twstdsister74

    twstdsister74 Newbie

    My 92 year old mother applied for A&A in November 2014 when she sold her house (at a loss) and moved into an Assisted Living Facility. She just received a letter of denial, stating that her income of $11,678 for the year was over the limit. They will not let her use the cost of the ALF (which is $3800 a month) towards her medical expenses because "the ALF stated that they do not provide you any assistance with your daily living nor provide any medical management" What the heck is that, if she is living in Assisted Living, they are providing assistance. She is not at the point of needing help with showering or her meds, but they do everything else an ALF does, providing meals, laundry and housekeeping. How do we appeal this and get a decision in her favor? Will the money she received for her house come into this decision now? If so she will have burned down enough in 4 months to get her under the $80,000 limit. She meets all of the other requirements, IE my father was a WWII vet and passed away 40 years ago. At this rate she will be out of $ in two years and on the street
  2. vetadmin

    vetadmin Administrator Staff Member

    If her only income annually is $11,678, something is not right here.

    Housekeeping, laundry are not considered assistance with daily living. She has to require 2 ADL's, which can be assistance with dressing, bathing, toileting, transferring, eating.

    If the facility does not assist with any of these, or if she does not have ALZ, or dementia where she cannot be left alone, there would be a challenge here.

    You NEVER appeal the decision. In doing so, you buy yourself an automatic 2 1/2+ years for a hearing. You would use VA form 21-4138 Statement in Support of Claim to offer up additional information for reconsideration.

    You say that that she has enough money to last for 2 years, then it may be that she is over the income threshold at this time.
  3. twstdsister74

    twstdsister74 Newbie

    Her Social Security and a very small pension, minus what she pays for Medicare part B and D and gap insurance brings her to that amount. They state they can only consider medical expenses that are more than $431.00 which represents 5% of the maximum annual death pension rate $8630. I really am not sure I understand what that means! In the last three years she has fallen twice and broken her ankle one of those times, each time landed her in rehab for a total of four months. Because of this and I think also because of some cognitive issues her doctor recommended she do this, at 92 all she needs is one more fall and she'll have a broken hip. They state she can reapply for death pension when her income drops or the medical expenses you pay increase which is nice when they won't even consider the cost of her ALF cost :(
  4. vetadmin

    vetadmin Administrator Staff Member

    I know it is frustrating, but again, she has to have assistance to meet the qualifiers for the rent to be counted.
  5. OhioVSO

    OhioVSO Newbie


    It sounds like you may be able to get some of the expenses counted.

    The key here is to get your mother’s physician to write a letter certifying that she needs to live in a “Protected Environment”. Have her physician write a letter on his office letterhead detailing her cognitive issues, that she is an extreme fall risk and her history of falls. The letter should also state that it is under his recommendation that she live in a “Protected Environment”; It important that he use that wording.

    You should also (if it hasn't already been done) submit a billing breakdown from the ALF. You should also submit a VA Form 21-4138 explaining that this is additional evidence supporting the initial claim.

    This should allow the VA to count at least a part of the monthly ALF charge. Custodial care (room and board) and medical or nursing care are deductible expenses under these circumstances (the need for a protected environment).
  6. VA Legal Team

    VA Legal Team Full Member

    Ohio VSO:

    That is a very interesting comment. Have you seen the VA count the ALF as an UME when the applicant isn't receiving ADL's?

  7. OhioVSO

    OhioVSO Newbie

    VA Legal Team,

    Refer to - M21-1MR, Part V, Subpart iii, Chapter 1, Section G.

    This provides the procedural guidance, to the raters, regarding this issue.
  8. VA Legal Team

    VA Legal Team Full Member

    Thank you, but I'm already familiar with that. I was actually interested in your real-world experience helping people obtain benefits.
  9. 330PMC

    330PMC Newbie

    the easiest solution is to talk with the ALF and have them provide the cheapest 2 ADLs. Like bathing and dressing once a week. She doesn't have to actually use them just pay for them. If they provide a statement that her level of care has changed and that 2 ADLs are provided the VA should count it.

    the manual is outdated, it is actually undergoing a complete rewrite. additionally, Fast letter 12-23 supersedes M21-1MR, Part V, Subpart iii, Chapter 1, Section G. VA recently posted to the federal register to change the CFR in regards to medical expenses, excluded income and countable income. their proposed rule change mirrors FL 12-23 from what i read of it.
  10. VA Legal Team

    VA Legal Team Full Member

    As usual, you and I are in agreement. I've used 12-23 many times to get the VA to count the cost of IL as an UME. We shall what the proposed rule changes do to ILF's as an UME.
  11. 330PMC

    330PMC Newbie

    i don't think it will change from FL 12-23. the proposed rule still talks about custodial care and such. i'm actually more interested in the changes to net worth and the look back period. i've sent about 3 cases to regional counsel for opinions on trusts this year. which is 3 more than i've submitted in the last 6.

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