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M21-1, Part V, Subpart iii, Chapter 2, Section B – Aid and Attendance (A&A) Status for Beneficiaries Who Are Patients in a Qualified Nursing Home

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
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1.  Identifying Qualified Nursing Homes


Introduction

This topic contains information on identifying qualified nursing homes, including

Change Date

June 15, 2015

V.iii.2.B.1.a.  Definition of Nursing Home for Purposes of A&A Status

38 CFR 3.351(c)(2) provides that an individual meets the aid and attendance (A&A) criteria without a rating decision if he or she is a patient in a facility that meets the 38 CFR 3.1(z) definition of a nursing home.
For purposes of meeting the A&A criteria, 38 CFR 3.1(z) defines a nursing homeas
  • any extended care facility that is licensed by a State to provide skilled or intermediate-level nursing care
  • a nursing home care unit in a State Veterans’ home that is approved for payment, or
  • a Department of Veterans Affairs (VA) nursing home care unit.
Note:  For pension purposes, a medical foster home that VA has recognized and approved under 38 CFR 17.73 is equivalent to a nursing home.
References:  For more information on

V.iii.2.B.1.b.  Identification of Qualified Extended-Care Facilities

Use the Medicare.gov’s Nursing Home Compare website to determine whether or not an extended-care facility is licensed by a State to provide skilled or intermediate-level nursing care.
Note:  If verification of a facility’s status is needed, send the facility VA Form 21-0779, Request for Nursing Home Information in Connection with Claim for Aid and Attendancefor certification.

V.iii.2.B.1.c.  Identification of Qualified State Veterans Home Facilities and VA Nursing Home Care Units

Regional offices (ROs) should maintain a current list of
  • State Veterans home facilities approved for the nursing home care per diem rate, and
  • VA nursing home care units.
Note:  The medical administration activity at VA medical centers (VAMCs) provides these lists.

V.iii.2.B.1.d.  Exclusive Use of Qualified Nursing Homes

Use the facilities identified by the State licensing or certification authority, or by the VA medical administration activity, as the exclusive basis for consideration as a nursing home for the purposes of an administrative award of A&A under 38 CFR 3.351(c)(2).
Note:  An administrative award of A&A requires no rating activity determination.

2.  Awarding A&A Based on a Beneficiary’s Status as a Patient in a Qualified Nursing Home


Introduction

This topic contains information on awarding A&A to a beneficiary based on his or her status as a patient in a qualified nursing home, including

Change Date

May 10, 2016

V.iii.2.B.2.a.  Authorizing A&A Based on Qualified Nursing Home Patient Status

Award A&A based on patient status in a qualified nursing home if
  • a responsible official of the facility states that the person is a patient in the facility because of a mental or physical disability, and the claimant submitted an appropriate standard form requesting A&A or
  • the person is a patient in a VA Nursing Home Care Unit or in a contract nursing home and the claimant submitted an appropriate standard form requesting A&A.
Note:  The term contract nursing home refers to a non-VA nursing home under contract with VA to provide nursing home care at VA expense for a specified period of time.
Important:  Reports of hospitalization received without a standard form will be treated as a request for application.
Reference:  For information on

V.iii.2.B.2.b.  A&A Status in Cases Involving Protected Pension Programs

In Section 306 Pension and Old-Law Pension cases, unless a beneficiary’s A&A status arose on or before December 31, 1978, a Veteran or surviving spouse must elect current-law pension to receive A&A.
Reference:  For information on the procedures to follow when a Section 306 Pension or Old-Law Pension beneficiary claims A&A, see M21-1, Part V, Subpart iii, 5.6.

V.iii.2.B.2.c.  Cases in Which a Rating Is Required to Award A&A

A&A for a Veteran’s disability compensation always requires a rating decision.
A rating decision is also required in a Veterans Pension case
  • if the Veteran does not meet the requirement of patient status in a qualified nursing home, or
  • to authorize A&A from the date of hospital admission when the immediately preceding period of hospitalization exceeded 90 days.
Reference:  For more information on authorizing A&A following hospitalization, seeM21-1, Part V, Subpart iii, 2.B.2.e.

V.iii.2.B.2.d.  Action to Take When a Beneficiary Is Established as a Patient in a Qualified Nursing Home

If evidence establishes that a beneficiary is a patient in a qualified nursing home, and there are no concurrent issues requiring a rating decision, then
  • enter basic nursing home information in the INSTITUTIONALIZATION screen
  • select STATUTORY A&A DECISION in the INSTITUTIONALIZATION ADJUSTMENTS screen, and
  • enter Aid and Attendance under 38 CFR 3.351(c)(2) in the OTHER PRINT REMARKS field.
Reference:  For more information on using systems to award A&A without a rating decision, see the

V.iii.2.B.2.e.  Authorizing A&A When a Period of Hospitalization Results in the Beneficiary’s Discharge to Qualified Nursing Home Care

If a period of VA or non-VA hospitalization results in a discharge of the beneficiary, within 90 days, as a patient to a qualified nursing home, authorize A&A without a rating decision from the first day of the month following such hospital admission.
Note:  VA cannot pay an increase because of A&A to a beneficiary who is currently receiving Section 306 Pension or Old Law Pension.  These beneficiaries must elect current-law pension in order for their A&A status to affect their benefit.
Reference:  For information on conditional elections, see M21-1, Part III, Subpart v, 4.A.1.c.

3.  Reviewing A&A Status Following Discharge From a Qualified Nursing Home


Introduction

This topic contains information on reviewing A&A status following a beneficiary’s discharge from a qualified nursing home, including

Change Date

February 19, 2019

V.iii.2.B.3.a.  Due Process Notification Requirements

Due process requires that a notice of proposed adverse action be sent before reducing or discontinuing a benefit.
Reference:  For more information on due process, see

V.iii.2.B.3.b.  Requirement for a Rating Decision Upon Discharge From a Qualified Nursing Home

There is a presumption that the disability or disabilities that required placement as a patient in a qualified nursing home are sufficient to require the aid and attendance of another person.  However, once a person is discharged as a patient from a qualified nursing home, continued A&A status requires a rating decision.
Note:  This also applies to Section 306 Pension or Old-Law Pension cases because A&A is not protected if a person
  • no longer has disabilities that meet the required rating criteria, or
  • in the case of a Section 306 Pension recipient, is not a patient in a qualified nursing home.

V.iii.2.B.3.c.  Action to Take After Receiving Notice of Discharge From a Qualified Nursing Home

Upon receipt, from the beneficiary or any other source, of a notice of discharge from qualified nursing home patient status, review the claims folder to determine whether
  • A&A status has already been established by rating decision, or
  • there is medical evidence not previously considered of record that should be submitted to the rating activity.

V.iii.2.B.3.d.  Action to Take if Medical Evidence Is of Record to Reconsider A&A Status

If medical evidence is of record, submit the case to the rating activity to prepare a rating decision that either
  • awards A&A, if the evidence supports an A&A award based on 38 CFR 3.351(c)(1) or establishes a factual need for A&A per 38 CFR 3.351(c)(3), or
  • proposes discontinuance of A&A, if the evidence is not sufficient to support the A&A award.
Note:  If there are any favorable findings from the original decision that relate to the beneficiary’s medical necessity for aid and attendance, those favorable findings arenot binding on running awards.
References:  For more information on the

V.iii.2.B.3.e.  Sending a Notice of Proposed Adverse Action to Reconsider and/or Remove A&A

If there is no pertinent medical evidence of record, or if the rating activity has made a determination that it cannot award A&A based on the available evidence, send the beneficiary a notice of proposed adverse action.  Inform the beneficiary that
  • A&A status must be reconsidered because he/she is no longer a patient in a qualified nursing home,
  • he/she has the right to
    • submit evidence
    • request a personal hearing, and
    • have a representative,
  • medical evidence must be furnished within 60 days from the date of the letter that
    • establishes a factual need for regular A&A, and
    • provides, if appropriate, a current statement concerning the expected future amount of continuing unreimbursed medical expenses (UMEs) and what the UMEs are for,
  • the present payment rate will continue for 60 days to allow time for him/her to exercise his/her rights,
  • a hearing request received within 30 days will delay action on the proposal until the hearing is held,
  • evidence received within 60 days will delay action on the proposal until the evidence is reviewed, and
  • payments will be reduced or discontinued if such evidence is not received.
Note:  A notice of proposed adverse action is required to remove A&A even if the beneficiary submitted the notice of discharge from the nursing home.

V.iii.2.B.3.f.  Content Requirements for the Notice of Proposed Adverse Action to Reconsider and/or Remove A&A

In discussing the proposed effective date of the action, advise the beneficiary in the notice as follows:
Your present payment will continue for 60 days to allow you to submit additional evidence.  At the expiration of that 60-day period (or after a personal hearing is held, if you request a hearing within 30 days), all available evidence in the file will be reviewed once more and we will make a final decision.  If our proposed decision to discontinue your aid and attendance eligibility is affirmed, your payments will be [discontinued] or [reduced] when we make our final decision.  You will not be overpaid as a result of removing A&A.
Important:
  • If continuing UMEs are being used to calculate the beneficiary’s award, the beneficiary may have an overpayment if he/she stops paying these expenses or if the expenses are reduced.
  • Although a beneficiary will not be overpaid because of removing A&A, the beneficiary may well be overpaid because of this change in income for VA purposes.  The letter must inform the beneficiary of this distinction.

V.iii.2.B.3.g.  Assisting the Claimant in Obtaining Medical Evidence to Reconsider A&A

To assist the beneficiary
  • try to obtain the necessary medical evidence directly from any sources shown in the claims folder, including requesting a medical report from the beneficiary’s attending physician or former nursing facility, if a release is in the claims folder, and
  • use the notice of proposed adverse action to advise the claimant that VA requested evidence on his/her behalf (naming the sources from which requested), but that it is the claimant’s responsibility to see that the evidence is provided.
Note:  The rating activity requests a VA examination if medical evidence received establishes a reasonable probability of eligibility, but is not adequate for a decision
Reference:  For more information on medical evidence of probable eligibility, seeM21-1, Part V, Subpart i, 2.2.

V.iii.2.B.3.h.  Establishing Controls for the Notice of Proposed Adverse Action Period

Establish a 65-day control for the notice of proposed adverse period in accordance with M21-1, Part I, 2.B.4.

4.  Taking Award Action on A&A Status Following Discharge From a Qualified Nursing Home


Introduction

This topic contains information on taking action on A&A status following the discharge of a claimant from a qualified nursing home, including

Change Date

February 19, 2019

V.iii.2.B.4.a.  Award and Notification Action to Take When No Evidence Is Submitted for Reconsideration of A&A

If, after requested by a notice of proposed adverse action, no medical evidence is submitted by a claimant within the 65 day notice of proposed adverse action period, then
  • if A&A was established due to nursing home care, reduce or discontinue benefits, as appropriate, without referral to the rating activity; however
if the claims folder contains a rating decision proposing to discontinue A&A, refer the case to the rating activity
  • if a decision regarding A&A is made, fully and clearly inform the beneficiary of the decision in a letter that contains
  • the elements that appeared in the notice of proposed adverse action, plus
  • do not create an overpayment in connection with the loss of A&A status.
Reference:  For information on referring cases to the rating activity, see M21-1, Part V, Subpart iii, 2.B.4.c.

V.iii.2.B.4.b.  Determining the Effective Date to Discontinue A&A Status Under 38 CFR 3.351

Use the table below to determine the effective date to discontinue an A&A award under 38 CFR 3.351.
If the award of A&A status was for a …
Then discontinue the award as of …
Veteran or surviving spouse receiving pension
the effective date of the final rating or the first day of the month following the month of the award action, per 38 CFR 3.105(f).
surviving spouse receiving
  • Dependency and Indemnity Compensation (DIC), or
  • death compensation
the date of last payment per 38 CFR 3.502(e).
parent receiving Parents’ DIC
the date of last payment per 38 CFR 3.504.
spouse of a Veteran receiving compensation for a dependent spouse
the first day of the month following the month in which award action is taken per 38 CFR 3.501(b)(3).
Note: Award housebound status for a Veteran or surviving spouse, if entitlement exists, effective the date following the date that A&A status was discontinued.

V.iii.2.B.4.c.  Referring Cases for Reconsideration by the Rating Activity

Refer the case to the rating activity for reconsideration if
  • additional medical evidence is received
  • the rating activity had proposed to discontinue A&A status based on the evidence of record, or
  • all development associated with a personal hearing is completed (if the beneficiary requests the hearing within 30 days of the notice of proposed adverse action).
If medical evidence was submitted and forwarded for a rating decision, and the rating activity action on the A&A issue is still pending when the predetermination period elapses
  • extend the suspense date for the pending end product (EP) 600, and
  • continue payments until the rating action is completed.
Notes:
  • If the facts contained in the proposed rating were complete, they need not be repeated in the final formal rating decision, but need only be referenced by citing the proposed decision by date.
  • If additional medical evidence has been submitted, it should be specifically disposed of in the final rating.  If the final rating affirms the proposed action, the final rating will show the effective date as the first day of the month following the date of the final rating.  This is the effective date to input into awards systems and is consistent with 38 CFR 3.105(f).  Use the effective date shown on the final rating decision unless that date would create an overpayment.

V.iii.2.B.4.d.  Notifying the Beneficiary When A&A Is Established by Rating Decision

When A&A is established by rating decision for a beneficiary who has left a nursing home
  • inform the beneficiary via locally-generated letter that
    • A&A has been established based on medical evidence, and
    • his/her payments will be continued, and
  • clear the pending control.
Note:  If the amount payable was based on deductible nursing home expenses allowed prospectively, develop for current medical expenses when the beneficiary is no longer in the nursing home, and adjust accordingly.
Reference:  For more information on prospective medical expenses, see M21-1, Part V, Subpart iii, 1.G.4.

V.iii.2.B.4.e.  Notifying the Beneficiary When A&A Is Not Established

Use the table below to determine what notification action to take when the rating activity determines that the evidence does not support an award of A&A status.
If notice of proposed adverse action has …
Then …
not been given
follow the procedures for providing notice of proposed adverse action outlined in
  • been given, and
  • the control period haselapsed
  • fully and clearly inform the beneficiary of the rating decision by locally-generated letter, and
  • include in the letter
    • the elements that appeared in the notice of proposed adverse action, plus
    • the paragraphs contained in M21-1, Part I, 2.D regarding procedural and decision review options.
  • been given, but
  • the control period has not yet elapsed
  • flash the rating in the eFolder or back-flap it in the paper claims folder
  • set the control for the proper date, and
  • ensure that the beneficiary has been asked to restate his/her income and medical expenses.

V.iii.2.B.4.f.  Action to Take When the Award Cannot Be Made in Time to Comply With the Effective Date in the Rating Decision

If an award cannot be completed in time to implement the effective date shown on the rating decision without creating an overpayment, return the case to the rating activity to prepare a new decision with a later effective date.
Rationale:  The provisions of 38 CFR 3.105(f) prohibit reduction or discontinuance of a pension award, due to a reduction in disability or employability, retroactively, unless the reduction is based on an erroneous award that is based on an act of commission or omission by a payee or with the payee’s knowledge, per 38 CFR 3.500(b).

5.  Reducing or Discontinuing an Award Because of a Change in A&A Status


Introduction

This topic contains information on reducing or discontinuing an award because of a change in A&A status, including

Change Date

May 10, 2016

V.iii.2.B.5.a.  Adjusting/ Discontinuing Pension When A&A Benefits Were Erroneously Paid Based on Patient Status in a Non-Qualifying Facility

If A&A was erroneously awarded based on patient status in a facility that does not meet the criteria under 38 CFR 3.1(z), a reduction or discontinuance of pension may result.
After the due process period in such a case expires, reduce or discontinue pension as of the date of last payment under the administrative error regulation, 38 CFR 3.500(b)(2), unless administrative error clearly does not apply.
Situation:
  • VA awards Veterans Pension from July 1, 2006.
  • Benefits include an administrative award of A&A based on the Veteran’s residence at River Valley Nursing Home.
  • The Veteran’s income for VA purposes (IVAP) would exceed the maximum annual pension rate (MAPR) without the allowance for recurring expenses for room and board of $24,000 per year.
  • On October 23, 2006, VA discovers that River Valley Nursing Home does not meet the criteria for A&A under 38 CFR 3.1(z).  The facility also does not meet criteria to allow a medical expense deduction.
Result:
  • Prepare a proposed administrative decision to discontinue benefits as a result of an erroneous award based on administrative error, per 38 CFR 3.500(b)(2).
  • Send the Veteran a notice of proposed adverse action regarding discontinuance of pension.
  • After expiration of the due process period
    • refer the administrative decision for approval, and
    • discontinue pension effective the date of last payment.
Reference:  For more information on administrative error procedures, see M21-1, Part III, Subpart v, 1.I.2.

V.iii.2.B.5.b.  Adjusting for A&A or Housebound for a Prior Period After the Patient Has Been Discharged

Use the table below to determine whether to increase benefits because of A&A or housebound status for a previous period of nursing home care when notification is received after the patient is discharged from the facility.
If …
Then …
a private pay patient is discharged from a nursing home before A&A is awarded administratively based on nursing home status and receipt of a standard form requesting A&A.
a Veteran who is a nursing home patient at VA expense is discharged from the nursing home before A&A is awarded administratively based on the Veteran’s VA nursing home status and receipt of a standard form requesting A&A.
pay the Housebound rate through the end of the month of discharge from the nursing home, subject to further reduction under 38 CFR 3.551.

V.iii.2.B.5.c.  Example:  Paying the Housebound Rate for a Prior Period of Nursing Home Care After Discharge From the Facility

Situation:
  • A Veteran with a spouse receives current-law pension.  The monthly rate does not include A&A or housebound.
  • On September 15, 2006, VA receives notice that the Veteran was in a nursing home at VA expense from April 2, 2005, through August 22, 2006.
Result:
  • Pay the housebound rate from May 1, 2005, through August 31, 2006, only.
  • Resume the rate without A&A or housebound as of September 1, 2006, and develop for medical evidence to establish A&A status based on 38 CFR 3.351(c)(1) or 38 CFR 3.351(c)(3).
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