In the past five years, I have seen a dramatic increase in the number of non-attorney Medicaid Application Handlers (“Handlers”). As the name states, the Handlers are not attorneys and cannot provide any form of legal advice without committing a crime—the unauthorized practice of law. A Handler cannot provide the most minor piece of advice—such as, “You should purchase a prepaid funeral.”—without committing a felony.
Now, a Handler can help you apply for Medicaid benefits. But that is literally all a Handler can do, help you apply for Medicaid. The second the Handler gives any advice as to how to qualify for Medicaid, the Handler is providing legal advice and is committing a felony.
Part of my practice for the past twenty years has involved Medicaid plan. I have assisted hundreds, if not thousands of clients, qualify for Medicaid benefits. I’m not very good at many things. I, quite literally, can barely screw in a lightbulb. (Last year while screwing in a lightbulb, I torqued the bulb too much and the glass separated from the base.) One thing I am very good at is providing legal advice concerning the qualification for Medicaid benefits and assisting clients in applying for Medicaid benefits. After all, when you do something for twenty years and go to school for 20 years before that, you can be pretty good at a task.
Given my vast experience, I would opine that it is impossible to assist a person in applying for Medicaid without providing legal advice. So, in my opinion, unless the Handler is referring you to an attorney, then the Handler is at some point committing a felony in the assistance that they are rendering to you. When you hire a Handler, you should be asking yourself, “Do I want to be engaged in a criminal enterprise?” Most people do not.
People use Handlers because of the following common circumstances: Mrs. Smith has a stroke. Mrs. Smith goes to the hospital. Eventually, Mrs. Smith is discharged to a nursing home for rehabilitation or rehab. Most every person I meet doesn’t realize that a “rehab center” is really just a nursing home. So, when Mrs. Smith is in a rehab center, she is in a nursing home already.
Oftentimes, Mrs. Smith may require long term care when her rehab ends. She just is incapable of regaining her independence no matter the quality or amount of rehabilitation that she receives. When the family decides to place Mrs. Smith in a nursing home—which, as mentioned, she already is in a nursing home—the rehab center/nursing home enters discussions with her family.
The nursing home will have the family complete an application in which Mrs. Smith’s family is asked to disclose her assets and income. The family is often intimidated by the application. The family wants Mrs. Smith to be taken care of. The family wonders whether or not Mrs. Smith has sufficient assets to make her an attractive candidate to the nursing home. “I hope they don’t kick my mom out. We need the nursing home to keep her.” And the family worries about their own financial responsibility to the nursing home.
In short, the family is concerned for mom and scared on various levels. The want to appease the nursing home so the nursing home will care for mom and not bother them financially. In this environment, the family will often sign anything the nursing home gives the family to sign.
Recently, I heard a nursing home give a family a document to sign that said the family will use the nursing home’s choice of Handler when it comes time to apply for Medicaid. The nursing home wants to lock the family into this because the Handler is probably a subsidiary or relative of the nursing home owner, and since the Handler is receiving referrals from the nursing home, the Handler is loyal to the nursing home, not the family. The Handler will ensure that the nursing home gets paid until Mrs. Smith’s last penny is spent on the nursing home.
The family is being duped, though. Once Mrs. Smith is a resident of the rehab center, it is Mrs. Smith, not the nursing home that is in the driver’s seat. From a practical point of view, the nursing home couldn’t get rid of Mrs. Smith if they wanted to and there are many techniques I have employed over the years to preserve some of Mrs. Smith’s assets for her family.