Is the Medicaid Process Fair?

Medicaid is a health payment plan for needy individuals.  When a person enters a nursing home or assisted living residence, he is faced with a monthly cost of care bill that ranges anywhere from $6,000 to $14,000.  Few people could afford to pay these costs for very long.

Faced with the prospect of bankrupting themselves, many people seek to qualify for Medicaid benefits, which pays for long-term care costs in a nursing home and assisted living residence.  You apply for Medicaid benefits through the county board of social services.  By law, the county is obligated to assist you with your application for benefits, but assisting you with your application has different meanings for different people.

I can assure that your idea of what assistance means and the county workers idea of assistance may vary greatly.  I don’t want to knock the county workers.  The fact of the matter is, they’re busy, county workers handle a great many applications.  Because each application involves a forensic accounting of the applicant’s financial actions over the past five years, each application involves a great deal of financial analysis.  Unraveling five years’ worth of transactions is difficult for anyone, let alone someone who is attempting to unravel the financial transactions of ten Medicaid applicants at any given time.

Furthermore, caseworkers are skeptical.  People are often trying to get one over one them or honestly characterizing things in ways that they might perceive as accurate but are inaccurate. Skepticism engenders an adversarial posture in caseworkers, an us-versus-them attitude.

I’ll often have clients say to me, “I handled my mom’s application for Medicaid and it was no problem at all.”  I’ll then ask, “Did you mom have any money?”  To which the client will reply, “No, mom never had money.”  I then have to point out that the client has assets worth $250,000, so his situation is nothing like his mother’s situation.

By law, the county is supposed to process an application for Medicaid benefits in forty-five days.  In practice, I can tell you that the county almost never processes an application this quickly.  In fact, I tell my clients that the application will probably take four to six months to process.  I like to prepare for one to two months before filing an application, which means that I am working with my clients for nearly eight months.  Applying for Medicaid is a big job, and it is a job fraught with pitfalls.

Medicaid is actually a series of statutes or laws.  Numerous federal courts have described the Medicaid law as one of the most complex laws with which they have had to deal.  Given that federal judges think the law is complex, the fact that many non-attorney applicants believe the Medicaid process to be simple or not that difficult is really detached from the reality of the situation.

The law is complex and caseworkers are not there to give you a guided tour of the process.  In fact, many applicants are denied simply because they failed to provide documentation in what the caseworker deemed to be a timely manner.  Many more are denied because financial transactions are classified as gifts even though the transaction might not have been a gift.  Still others are denied because the Medicaid office claims the applicant owns assets that he does not really own.  “How can that be?” you might ask.  The answer is beyond the scope of this article, but believe me, it happens.

To add to the mix, people go to nursing homes and the nursing home refers them to a non-attorney Medicaid advisor company. The company cannot provide legal advice without committing a crime—the unauthorized practice of law—and the company’s loyalty is to the nursing home that made the referral, not to you, the actual client.  You will pay sometimes more, sometimes slightly less than what you would pay an attorney, but you get so, so much less for your money.

All of this happens in the context of being upset because you or your loved one is in a nursing home and may never come home again.  So you are scared and confused.  But I tell you all this because you should do two things and if you do these two things you will be making a wise decision: (1) Know that the process of applying for Medicaid is legitimately complex and fraught with pitfalls, and (2) retain the services of a Certified Elder Law Attorney or CELA.  If you know those two things, you probably will not make a mistake.

Remember a nursing home costs on average $12,000 a month.  If you pay an attorney $6,000 to guide you through the process that lasts about eight months an obtain Medicaid benefits for you, that is money very well spent.