The VA’s New Definition Of Custodial Care

As some of my loyal readers know, I regularly peruse the VA’s Web Automated Reference Material System. WARMS, as I affectionately call it, houses VA employee manuals. These manuals direct VA employees on how to properly adjudicate claims. WARMS is updated regularly and provides valuable insight into how the VA should be operating on any given day.

The Old Rule

If you’ve read my primer on Special Monthly Pension with Aid and Attendance, then you know a key element to a grant of Aid and Attendance benefits is showing a need for custodial care. The VA formerly defined custodial care as assistance with multiple activities of daily living. Activities of daily living include bathing, dressing, transferring, toileting, personal hygiene, and eating and drinking.

The New Rule

As of the end of November, however, the VA fundamentally changed the definition of custodial care. According to WARMS, custodial care still means regular assistance with two or more ADL’s. But custodial care now includes “regular supervision because a person with a physical, mental, developmental, or cognitive disorder requires care or assistance on a regular basis to be protected from hazards or dangers incident to his or her daily environment.”
This change was long overdue. In fact, as I’ve argued, the VA’s new definition of custodial care isn’t new at all. Section 3.352 of the Code of Regulations has used this exact same language to determine need for aid and attendance for many years. In other words, the VA has used the ‘new’ definition of custodial care to help determine medical eligibility for some time. Only now is the VA coming around again (this is a long story we don’t have time for) to the idea that the protected environment standard should be used to determine income eligibility.

What It Means

The VA’s updated custodial care standard will have a huge impact on claimants. For example, under the old standard, a claimant living in assisted living and diagnosed with Dementia may not have qualified for Aid and Attendance pension because she wasn’t paying for ADL’s. Now, however, if a doctor testifies that the claimant requires regular supervision because of her Dementia to protect her from hazards and dangers (i.e. a protected environment), the VA is likely to count the assisted living facility as a medical expense.

The same logic should apply to an Independent Living Facility. If a claimant contracts out with a third party for custodial care or the facility contracts out for custodial care, the VA should count the room and board as an unreimbursed medical expense. The VA has also stated that the claimant does not need to pay the third party for the custodial care.
The VA allowing this type of medical expense is long overdue. Until recently, the VA’s treatment of Dementia in relation to Aid and Attendance was antiquated. The idea that a claimant with Dementia, who would be a danger to himself if left in his home, was not eligible for assistance was absurd.

If you’ve been denied benefits, do not give up.  The VA makes mistakes.  You still may be entitled to benefits.  Contact VA Legal Team now for a free case review.