(UPL) Unlicensed Practice of Law in Medicaid Planning As of 2015

While personally opposed to the recent Florida Supreme Court decision regarding the Unlicensed Practice of Law in “Medicaid Planning”, for disclosure purposes, I must admit serious biases which in part are:

  1. The company I own has carried out many of these functions for years, always following or exceeding the current Florida Bar rules at the time. My recommendations were always reviewed by an attorney prior to implementation for clients. None-the-less, the ruling created a slightly more cumbersome process to meet the opinion’s requirements.
  2. I viewed the process somewhat as a turf war between attorneys and non-attorneys since I had been helping families protect assets using nursing home Medicaid since 1996; longer than most attorneys now practicing Medicaid planning.
  3. I felt the process used to accomplish the outcome could have been handled more professionally. But again, I am biased and may not be the best interpreter of the facts regarding the process.

With all of that said the opinion now carries the weight-of-law and must be obeyed by all providing Medicaid services in Florida. I must also admit a few other things.

In some ways the new rules are good.

  1. I think the majority of attorneys providing Medicaid services to Florida citizens are decent human beings trying to make a living while providing fair services to clients. As the attorneys argued to the Florida Supreme Court “attorneys are regulated.”
  2. The roles are now defined and non-attorneys can reasonably know where the lines are with some thought and investigation.
  3. Attorneys can now use application services like ours without fear of “assisting” in the unlicensed practice of law.
  4. Client’s now get two sets of experienced eyes on the plan, which can reduce errors.
  5. Non-attorneys and attorneys can learn valuable skills from each other that will ultimately benefit families seeking Medicaid benefits

Let me explain the fifth point in the last paragraph. My experience has been that only a few non-attorneys are as skilled as attorneys at all of the various and related legal issues that must be dealt with in Medicaid planning. It has also been my experience that only a few attorneys are as skilled at tax planning, insurance strategy, and investment interpretation as non-attorneys (many application services are owned by professionals in the financial services sector). This becomes especially pertinent when a non-attorney is implementing a plan and processing the application at an attorney’s direction and the attorney may not have considered a financial nuance. The application service can then point out the nuance to the attorney who can then confirm or modify the strategy at the client’s direction. Now that non-attorneys must work in conjunction with attorneys (although they should have been working with them all along in some capacity), non-attorneys can obtain information valuable in prosecuting an application and attorneys can learn more finance nuances and tricks of the trade in application approval processing. It is absolutely true that attorneys can process applications themselves. Most however, delegate that work, often to an assistant who wears many hats. It is my opinion that wise attorneys should be relieved to get rid of the application process and that most clients would be served better by hiring a specialty processing firm to file and prosecute the application. But, again I must admit to being biased.

If you are a potential applicant, consider initially hiring an application service that will work with an attorney of your choice or initially hiring an attorney that will work with an application service of your choice.

If you are an attorney and would like to focus on legal strategy and document creation necessary for plan implementation, consider using a quality application service like ours.

How does the client win? Speed and application process expertise! Attorney’s can create plans and documents quickly. Few attorneys can push clients for information and verify all of the assets and income quickly. That inability often means at least one month, usually more, of private pay to a nursing home. At $9,000 per month, that adds up. Quality application services can move quickly, saving the client money and keeping the nursing home happy during the Medicaid pending process!

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