Is it illegal to give advice to a person about how best to qualify for Medicaid benefits? It depends. If the person giving the advice is not a lawyer, the answer is, yes, it is illegal. The Supreme Court of New Jersey’s Committee on the Unauthorized Practice of Law issued Opinion 53 on May 16, 2016 (Opinion 53). In Opinion 53, the Committee held that providing advice on strategies to become eligible for Medicaid benefits is the practice of law. When an individual who is not an attorney renders such advice, it is the unauthorized practice of law, which is a crime.
Medicaid is a health payment plan for needy individuals. If a person qualifies for Medicaid benefits, Medicaid will pay for many of the costs associated with long-term care, such as a nursing home or assisted living residence.
Medicaid planning is a process through which attorneys advise individuals how best to preserve some or all of their assets and qualify for Medicaid benefits. There are a great number of strategies that can be employed to assist an individual who would not otherwise qualify for Medicaid benefits to qualify for Medicaid benefits. These strategies inevitably involve applying a complex law, the Medicaid Act, to the person’s individual situation.
Such an application of the law to an individual’s facts is the practice of law. For those of you who have read my column in the past, you know that I have made this argument in many previous columns. On May 16, 2016, the Supreme Court of New Jersey concurred with my prior pronouncements on this issue.
In fact, I had a part in the issuance of Opinion 53, having co-authored the New Jersey Bar Association’s submission to the Committee. The State Bar’s submission was the impetus behind the issuance of Opinion 53.
What spurred my fellow elder law attorneys and I to obtain this opinion from the Committee is the great influx of non-attorney “Medicaid advisors” in recent years. The federal regulations governing the Medicaid program permit an applicant for Medicaid benefits to obtain help from any person with regard to the filing of his Medicaid application. An applicant for Medicaid benefits can also enlist the services of any person to represent him before the Medicaid Office in an appeal of a denial of Medicaid benefits.
The person the applicant hires to assist him with these tasks does not have to be an attorney. And nothing in Opinion 53 changes the fact that a Medicaid applicant can hire a non-attorney to assist him with filing his application for Medicaid benefits or in representing him in an appeal of a denial of Medicaid benefits.
What is illegal is for the non-attorney Medicaid advisor to provide any advice to a Medicaid applicant as to how best to qualify for Medicaid benefits. It is also illegal for a non-attorney Medicaid advisor to draft any of the documents commonly used in planning for Medicaid eligibility, such as trusts and wills.
I have always said to my clients and to my staff that even the “simple” Medicaid case isn’t as simple as the case initially appeared and that all cases require some legal advice. In some form or another, every one of my clients has always required that I apply the Medicaid law to their facts in order to qualify the client for Medicaid. So, I don’t know how any non-attorney Medicaid advisor could effectively represent a customer in qualifying for Medicaid benefits without retaining an attorney to assist them. In fact, I don’t see how any such advisor could “represent” his customer at all without hiring an attorney, as well, since qualifying for Medicaid almost always involves some form of legal analysis.
Because Medicaid is such a complex law, I feel safe in saying that in all but the most simplest of cases (a case I have never seen in the thousands of cases in which I have been involved), if you are seeking to qualify for Medicaid with the assistance of a non-attorney Medicaid advisor and an attorney isn’t assisting you in some manner, as well, then your non-attorney Medicaid advisor is committing a crime.