With the advent of a new year, it is once again time for a round of updates about recent and pending changes to public benefits programs. With the overhaul of TennCare/Medicaid over the last few years and changes in how applications for TennCare and VA benefits are filed and processed, it is a challenge for professionals and applicants — and sometimes even public benefits officials — to keep up with the ins and outs of the ever-changing rules. In this issue of Elder Counselor we share some of the current issues in public benefits and help professional organizations and individuals understand how to navigate new challenges.

Rules for CHOICES Safety Determination Broadened

Over the past few years we have written much about the ever-changing face of Medicaid benefits for Tennesseans needing care at home, in assisted living, or in a long-term care facility. In simple terms, an applicant must meet certain financial guidelines AND must have functional deficits sufficient to qualify for one of the three levels of care mentioned above covered by CHOICES. Previously, someone not scoring high enough to qualify for a long-term care facility might score in the range to qualify for care at home. Unfortunately, the cost caps for care in the home are often insufficient to safely meet the applicant’s true needs.

Until November of 2014, the only safety exception to override the functional score applied to applicants with a diagnosis of dementia. Since November 2014, applications that are submitted either by long-term care facilities or through community based assessors may apply Safety Determinations to all applicants who are not expected to score high enough for a long-term care facility but whose needs clearly cannot be safely met with limited in-home services. The scoring for the amount of assistance and applicant needs for eating and for taking medications has been somewhat relaxed. An applicant that needs one-on-one prompting or supervision to complete a meal or to prevent choking can receive more favorable scoring. Likewise scoring is more favorable for an applicant who can put medications into their own mouth but who can’t remember when to appropriately take the medication. More importantly, the Safety Determination is bundled into the initial PreAdmission Evaluation (PAE) portion of the CHOICES application rather than done only after the applicant’s functional deficit score did not meet criteria for a higher level of care. Applicants should be aware that even if the long term care facility or the community based assessor doesn’t think a Safety Determination is warranted, the applicant has a right to have the submitting entity include a Safety Determination Review anyway.

As with all aspects of functional deficits listed on a PAE, submission of adequate supporting documentation is also critical for Safety Determinations. Specifically, reviewers will be looking at the following factors:

  • Diagnosed complex acute or chronic medical conditions which require frequent, ongoing, skilled and/or rehabilitative interventions and treatment by licensed professional staff;
  • A pattern of recent falls resulting in injury or with significant potential for injury;
  • An established pattern of recent emergent hospital admissions or emergency room utilization for emergent conditions;
  • Recent nursing facility admissions, including precipitating factors and length of stay;
  • An established pattern of self-neglect that increases risk to personal health, safety, and/or welfare requiring involvement by law enforcement or Adult Protective Services;
  • A determination by a community-based residential alternative provider that the applicant’s needs can no longer be safely met in a community setting; and
  • The need for and availability of regular, reliable natural supports, including changes in the physical or behavioral health or functional status of family or unpaid caregivers.

With any new process, much education is needed both for those submitting PAEs on behalf of applicants and for the applicants themselves. Elder Law of East Tennessee is working to educate clients regarding this change in the Safety Determination process and to serve as strong advocates with community based assessors and long-term care facilities to ensure that a Safety Determination Review is submitted if there is any uncertainty about whether an applicant’s functional deficits will be scored highly enough to get the level of care the applicant truly needs. We are pleased that the State of Tennessee has recognized the need to broaden the Safety Determination rule and look forward to opportunities to work with CHOICES rule makers so that it is not such a struggle for sick and aged citizens to get the care they richly deserve.

TennCare Filing Alerts

Community Spouse Retirement Funds. Professionals assisting clients in applying for Long Term Services and Supports have recently noticed arbitrary problems arising with processing financial applications. One of the primary issues is related to the spouse’s retirement funds. Reportedly, on several occasions and with more than one case worker, TennCare has inappropriately refused to exempt the Community Spouse’s retirement funds at the time of the resource assessment. When faced with this issue, we encourage you to advocate for your client or yourself using both the Medicaid Manual and POMS. If necessary, encourage the case worker to consult with Kim Hagan, the TennCare attorney handling oversight on financial applications.

Prepaid, Itemized, Irrevocable Funeral Plans. Our office recently encountered a TennCare case worker who characterized the purchase of an irrevocable, pre-paid funeral plan over $6,000 as a transfer of assets for the amount over $6,000 — a decision which has prevented our client from meeting the standard for financial qualification. We are presently arguing that issue and if necessary will appeal it. The confusion may stem from an October 10, 2014 “policy” that TennCare has issued which states: “Funds in an irrevocable burial contract in excess of $6,000 must be reviewed under transfer of asset and penalty period policy for institutionalized individuals, unless additional expenses are incurred for transporting the deceased to another city or state for burial purposes.” Please be aware that there is no new rule to change the existing Medicaid Manual to limit itemized plans to $6,000, and it is unclear where TennCare’s authority is for such a policy.

Application Delays and Appeals. Many applicants for TennCare face exceptionally long delays after submitting their applications. In the meantime, they struggle to find ways to pay for care and face difficult decisions without knowing whether or not they will be approved. In the case of Wilson v. Gordon, the trial court entered a preliminary injunction requiring TennCare to hold a fair hearing when the TennCare applicant has waited more than 45 days for a decision regarding a disability-based application (e.g., a Medicare Savings Plan) or 90 days for all other applications (e.g., CHOICES Groups 1, 2 or 3). The delays in processing of applications are due to TennCare’s shift of the application process to the Federal Exchange. The Court found that the Federal Exchange “was not designed to replace the State’s Medicaid application process, and it is not particularly surprising that the system has had operational problems and difficulties in handling that task.” The Court stated:

[I]t is clear that irreparable harm has occurred and will continue to occur without the issuance of injunctive relief. The Plaintiff class members are economically impoverished and, without TennCare benefits, have foregone or are foregoing vital medical treatments, services and prescriptions. These injuries cannot be made whole by a retroactive award of money after the litigation process is complete.

If you have a client who has applied for CHOICES Group 2 or 3 and whose application has been pending for more than 90 days, go to the TennCare website and fill out the appeal form. Our office filed for a delay hearing and called an attorney in the Office of General Counsel for TennCare in follow up and had our client approved in a matter of days. Also, be aware that there is more to the Wilson case. For more information, see www.tnjustice.org.

Challenges to VA Aid & Attendance Financial Qualification

In VA as well as Medicaid, law and practice change frequently and applicants face challenges in gaining access to benefits. Sometimes case workers and local support offices do not have all the answers or even agree with one another regarding the correct way of filing a claim. Inconsistent information and recent changes in the way that case workers handle some claims has created a great deal of confusion for applicants and professionals who help in filing those claims.

One of the most confusing recent developments started when Congress introduced bills in the House and Senate which would institute a three-year “lookback period” for a VA Aid and Attendance applicant’s finances. If these bills become law, applicants who have given away assets or transferred them into a trust within three years of the application date may not be able to qualify for VA benefits if the gifted/ transferred assets would have otherwise disqualified them for VA benefits. It is important to note that these bills have not yet become law, and there has been no official announcement from VA reflecting a change in policy. However, many applications which have been submitted in the past 4 – 5 months have been challenged or even rejected by VA case workers on the basis of asset transfers completed within the past three years. Our office is currently in the process of working through several such applications but has had difficulty getting straightforward answers about how to handle this apparent change in policy from the VA.

CMS Rule Proposed to Support Equal Rights for Same-Sex Spouses

We are pleased to wrap up our public benefits updates with some good news in Medicaid policy. In the 2013 ruling for United States v. Windsor, the US Supreme Court held that the Defense of Marriage Act (DOMA) is unconstitutional because it violates the Fifth Amendment. As a result of the Supreme Court’s decision, the federal government is permitted to recognize the validity of same-sex marriages when administering federal statutes and programs.

On December 12, 2014, in response to the United States v. Windsor Decision, The Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) proposed a rule that will revise certain definitions and patients’ rights provisions in order to ensure that same-sex marriages are treated on the same terms as opposite-sex marriages, even if the couple resides in a state that does not recognize same-sex marriages. The new rule is necessary to ensure that CMS regulations will afford equal treatment in Medicare and Medicaid participating facilities to same-sex spouses whose marriages were lawfully celebrated in jurisdictions that recognize same-sex marriage. CMS indicates that the goal is to provide equal treatment to spouses, regardless of their gender.

CMS and HHS will be accepting public comments on this proposed rule until 5:00 pm on February 10, 2015. For information about where and how to submit your comments, visit the Office of the Federal Register website. We at Elder Law of East Tennessee have already submitted a letter in full support of the proposed rule, and we encourage other professionals and individuals who may benefit from this rule to make their voices heard.


Gaining access to public benefits can be challenging, especially since the rules always seem to be changing. It is a good idea for applicants to seek assistance from professionals who keep up with all the changes and can serve as advocates when questions about an application arise or an appeal is necessary. If you need help finding out whether you qualify or filing a claim for yourself, a loved one, or a client, give ELET a call. We are committed to helping individuals get the benefits they deserve.