**§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:

\(1\) 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 conditions 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 provisions 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 election 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 Social Security Administration*. The
Department of Veterans Affairs shall promptly furnish the Social
Security Administration 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 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(a))

\[46 FR 11661, Feb. 10, 1981, as amended at 71 FR 44919, Aug. 8, 2006\]

**Supplement *Highlights* reference**: 72(2)