[Code of Federal Regulations] [Title 38, Volume 1] [Revised as of July 1, 2002] From the U.S. Government Printing Office via GPO Access [CITE: 38CFR3.714] [Page 309-311] TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS PART 3--ADJUDICATION--Table of Contents Subpart A--Pension, Compensation, and Dependency and Indemnity Compensation Sec. 3.714 Improved pension elections--public assistance beneficiaries. (a) Definitions. The following definitions are applicable to this section. (1) Pensioner. This means a person who was entitled to section 306 or old-law pension, or a dependent of such a person for the purposes of chapter 15 of title 38, United States Code as in effect on December 31, 1978. (2) Public assistance. This means payments under the following titles of the Social Security Act: (i) Title I (Grants to States for Old Age Assistance and Medical Assistance to the Aged). (ii) Title X (Grants to States for Aid to the Blind). (iii) Title XIV (Grants to States for Aid to the Permanently and Totally Disabled). (iv) Part A of title IV (Aid to Families with Dependent Children). (v) Title XVI (Supplemental Security Income for the Aged, Blind and Disabled). (3) Medicaid. This means a State plan for medical assistance under title XIX of the Social Security Act. (4) Informed election. The term ``informed election'' means an election of improved pension (or a reaffirmation of a previous election of improved pension) after the Department of Veterans Affairs has complied with the requirements of paragraph (e) of this section. (b) General. In some States only a person in receipt of public assistance is eligible for medicaid. When this is the case the following applies effective January 1, 1979: [[Page 310]] (1) A pensioner may not be required to elect improved pension to receive, or to continue to receive, public assistance; or (2) A pensioner may not be denied (or suffer a reduction in the amount of) public assistance by reason of failure or refusal to elect improved pension. (c) Public assistance deemed to continue. Public assistance (or a supplementary payment under Pub. L. 93-233, sec. 13(c)) payable to a pensioner may have been terminated because the pensioner's income increased as a result of electing improved pension. In this instance public assistance (or a supplementary payment under Pub. L. 93-233, sec. 13(c)) shall be deemed to have remained payable to a pensioner for each month after December 1978 when the following conditons are met: (1) The pensioner was in receipt of pension for the month of December 1978; and (2) The pensioner was in receipt of public assistance (or a supplementary payment under Pub. L. 93-233, sec. 13(c)) prior to June 17, 1980, and for the month of December 1978, and (3) The pensioner's public assistance payments (or a supplementary payment under Pub. L. 93-233, sec. 13(c)) were discontinued because of an increase in income resulting from an election of improved pension. (d) End of the deemed period of entitlement to public assistance. The deemed period of entitlement to public assistance (or a supplementary payment under Pub. L. 93-233, sec. 13(c)) ends the first calendar month that begins more than 10 days after a pensioner makes an informed election of improved pension. (If the pensioner is unable to make an informed election the informed election may be made by a member of the pensioner's family.) A pensioner who fails to disaffirm a previously made election of improved pension within the time limits set forth in paragraph (e) of this section shall be deemed to have reaffirmed the previous election. This will also end the deemed period of entitlement to public assistance. (e) Notice of right to make informed election or disaffirm election previously made. The Department of Veterans Affairs shall send a written notice to each pensioner to whom paragraph (b) of this section applies and who is eligible to elect or who has elected improved pension. The notice shall be in clear and understandable language. It shall include the following: (1) A description of the consequences to the pensioner (and the pensioner's family if applicable) of losing medicaid eligibility because of an increase in income resulting from electing improved pension; and (2) A description of the provisions of paragraph (b) of this section; and (3) In the case of a pensioner who has previously elected improved pension, a form for the purpose of enabling the pensioner to disaffirm the previous election of improved pensions; and (4) The following provisons of Pub. L. 96-272, sec. 310(b)(2)(B): (i) That a pensioner has 90 days from the date the notice is mailed to the pensioner to disaffirm a previous electon by completing the disaffirmation form and mailing it to the Department of Veterans Affairs. (ii) That a pensioner who disaffirms a previous election shall receive, beginning the calendar month after the calendar month in which the Department of Veterans Affairs receives the disaffirmation, the amount of pension payable if improved pension had not been elected. (iii) That a pensioner who disaffirms a previous election may again elect improved pension but without a right to disaffirm the subsequent election. (iv) That a pensioner who disaffirms an election of improved pension shall not be indebted to the United States for the period in which the pensioner received improved pension. (Authority: Pub. L. 96-272, sec. 310; 94 Stat. 500) (f) Notification to the Department of Health and Human Services. The Department of Veterans Affairs shall promptly furnish the Department of Health and Human Services the following information: (1) The name and identifying information of each pensioner who disaffirms his or her election of improved pension. (2) The name and identifying information of each pensioner who fails to [[Page 311]] disaffirm and election of improved pension within the 90-day period described in paragraph (e)(4)(i) of this section. (3) The name and identifying information of each pensioner who after disaffirming his or her election of improved pension, subsequently reelected improved pension. (Authority: 38 U.S.C. 501) [46 FR 11661, Feb. 10, 1981]