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Can You Deduct the Cost of In-Home Care for the VA Aid & Attendance Benefit?


By merv,

  Filed under: Elder Law, Veteran's Benefits

Introduction
Who is a licensed health professional in California?
Department of Consumer Affairs Definition
Wikipedia
Statutes
California Community Colleges
Recommendation

Introduction: In many cases the cost of in-home care can be deducted from income in order to qualify for the Veterans Aid & Attendance Non Service Connected Pension. There is a special rule, however, for the spouse of a living veteran. For the cost of in-home care to be deductible for the spouse of a living veteran, the caregiver must be a “licensed health professional.”

Who is a licensed health professional in California? The answer to that question is troublesome because California (as does every state) uses different verbiage from the VA (a Federal agency). In California, there are several categories of persons who receive their credentials from agencies of the California government. Two are somewhat troublesome to define for purposes of the VA rules, those being certified nursing assistant (CNA) and home health aid (HHA) .

Department of Consumer Affairs: The California Department of Consumer Affairs has a list of the categories of “licensed healthcare professionals.” Amongst others, licensed vocational nurse is included while CNA and HHA are not.

Wikipedia: The CNA and HHA are certified, not licensed. According to Wikipedia they fall within the definition of “unlicensed assistive personnel….This is an umbrella term to describe a job class of paraprofessionals who assist individuals with physical disabilities, mental impairments, and other health care needs with their activities of daily living (ADLs) and provide bedside care — including basic nursing procedures — all under the supervision of a Registered Nurse, Licensed Practical Nurse or other health care professional.”

Statutes: Although, in California, certification for the CNA and HHA comes from the Department of Public Health, there appears to be no statute that prevents an individual from working in-home without a certification. All Federal and California statutes only seem to apply to requiring a certification to work in a Medicare or Medi-Cal certified facility. 42 U.S.C. §§ 1395i-3(b)(5)(A)(i)(I), 1396r(b)(5)(A)(i)(I); 42 C.F.R. § 483.75(e)(2)(ii)(A); Calif. W & I Code 10751. Licensing does not appear to be required to perform these job duties if the work is in-home.

California Community Colleges: The California Community College website provides a job description for a CNA. Amongst other things, it states that a CNA reports to the “professional nursing staff.” The suggestion here would be that a CNA is not a “professional” level job. Further, Federal law defines who is a Licensed Health Professional for purposes of Medicare and Medi-Caid certified facilities at 42 C.F.R. § 483.75(e)(2)(ii)(A). CNA and HHA are conspicuously absent from the list.

Recommendation: Although the answer may not be perfectly definitive, it seems reasonably certain that neither a CNA or a HHA are licensed health professionals within the meaning of the VA regulation. Therefore, I would suggest that if a spouse of a living veteran wants to deduct the cost of in-home care in order to qualify for the VA Aid & Attendance Non Service Connected Pension, that person use a licensed healthcare professional and not a CNA or HHA. Obviously, the greater cost in hiring an LVN, for example, would have to be weighed against the amount of the projected VA benefit.

12/2011

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About Living Trusts

About Living Trusts is hosted by the Law Offices of Merwyn J. Miller, as your online resource center to help you explore these key issues, and others, regarding your estate.

Merwyn J. Miller, J.D.

  • Board Certified Specialist in Estate Planning, Trust & Probate Law
  • Co-Author of legal text book and of “Don’t Go Broke in a Nursing Home
  • Teacher of law courses at public and private colleges
  • Continuing Education Instructor for attorneys
  • Columnist for largest regional newspaper in San Diego County and professional journals for 15 years, Contributing author to the book “In Your Service: The Veteran’s Friend”
  • Masters Degree in Financial Services - Estate Planning
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