Why a "Medicaid Specialist" isn't Enough

(and is sometimes DISASTROUS)

Lisa Nachmias Davis
Davis O'Sullivan & Priest LLC
59 Elm Street, Suite 540
New Haven, CT 06510
203-776-4400
davis@sharinglaw.net
www.sharinglaw.net
www.estate-elder.com
(last updated 1-21-24)

     Lately, individuals who are not lawyers have been hawking their services as "Medicaid specialists." They claim they can help you apply for Medicaid for a loved one, inexpensively and effectively, that they do hundreds of these every month and know the ropes.  Or sometimes the nursing home says "don't hire a lawyer, we'll help you for free."  Why doesn't that make sense?  Why should you seek help from a lawyer instead, or at least FIRST?

      To make sure you READ ON -- some examples!!! 

• Recently, a client who used a "Medicaid Specialist" company, so-and-so planning services, came to me and I found that due to lack of follow-through, the applicant's wife was being forced to pay almost $1,000 a month TOO MUCH of her husband's income to the nursing home!!  Only after hours on the phone did we straighten it out going forward and now we have to sue to get a refund. If they had not come to me the family would never have known. 
  
• I received a call from someone whose father had died and he complained how his father had to spend down ALL his assets to get on Medicaid.  WRONG.  The caller had taken care of the father and the father could have given the son everything if the people had known what they were doing.
• I am helping a wife get her husband Medicaid and was able to get her an extra $1600/month MORE than the maximum Medicaid rules would allow -- even if a medicaid specialist did his/her job right, that wouldn't have happened.  And two years later, when her rent went up, I was able to get her even more.
  
• We were called when an application was DENIED for excess assets and the nursing home was about to sue.  I crunched the numbers and found out that with an administrative hearing the state would allow the couple to keep everything. This should have been done already.  The nursing home attorney knew me and trusted I would fix it so he held off the lawsuit.
  

      You see?  Don't nickel and dime.  I happen to agree that some of us charge what seems like a lot, but even then, I believe that in the majority of cases you will still come out AHEAD if you get legal, not company help.  And some companies charge basically the same amount lawyers do!!

     First, let's be clear. When I say "a lawyer" I don't mean any Dewy Cheatem & How LLC that claims to practice "elder law" as well as bankruptcy, personal injury, wills, real estate etc etc. This is happening more and more as the population ages. You should do your homework.  "Elder law" and Medicaid law change constantly, sometimes from day to day. Just because someone helped a person apply for Medicaid entering a nursing home two years ago doesn't mean that person is qualified to tell you what the rules are today or what all the options may be.   I ALSO DO NOT MEAN THE LAWYER WHO "WORKS WITH" THE MEDICAID SPECIALIST.  That lawyer has a conflict of interest.  If the "Medicaid specialist" screws up, is that lawyer going to tell you, and help you sue?  If you want to get out of the specialist's contract, is that lawyer going to help you do it?  Do you even know if that lawyer is any good?  Isn't it a little suspect that the lawyer has to affiliate with a for-profit company rather than getting his (or her) own clients?  I know it's not easy to know who is and who isn't good when it comes to lawyers.  When looking for an attorney, get as much information as you can about the person's expertise and constant involvement in this field of law, keeping current, giving presentations, belonging to organizations that keep current in the field, peer and client recommendations, etc.  It's helpful if the person is a member of the National Academy of Elder Law Attorneys (www.naela.org) or has been "certified" by the National Elder Law Foundation (www.nelf.org), although neither is a guarantee of a good attorney, of course.  Look to see if the lawyer has written articles about or spoken to groups about elder law, or is active in elder law groups such as the bar association Elder Law Section.  There are outfits like Superlawyers or Martindale Hubbell that rate lawyers.  Not always accurate, but something.  And of course the lawyer should be in the state where Medicaid is being sought.  And maybe most importantly, ask if the attorney has malpractice insurance!!  In Connecticut, you can even check with the judicial department to see if there are any disciplinary actions against an attorney.  So when I saw "lawyer" I mean a lawyer who practices actively in the field of elder law and keeps current. 

      Why use an INDEPENDENT lawyer and not a "Medicaid specialist"?

	Lawyers go through three years of law school (four if they have an "LLM") in which they are trained, week in and week out, to "spot issues" and explore all the "what ifs" in a situation.  They take a grueling bar exam in which these skills are tested, and only if they pass do they have a license to practice in your state.  In most states, INCLUDING Connecticut!, they are required to take continuing education courses to ensure that they are current, and INCLUDING courses in legal ethics.  If a lawyer is a "CELA" (elder law attorney certified by the National Elder Law Foundation) that person is required to take even more continuing education classes in order to remain certified and to pass yet another grueling exam to get the designation.  The CELA designation also means the attorney has had a lot of experience.  Your "Medicaid specialist" may know just what is required to fill out a form, and may know what the local regional office requires for documentation, but will not necessarily spot all the issues that can help you.  Is the "Medicaid specialist" going to tell you all the ways your loved one could pay for home care INSTEAD of staying in the nursing home?   Is the "Medicaid specialist" who is "helping" qualify your husband for Title 19, going to tell you what to do so that nothing is spent on the nursing home at all and everything is protected for you?  Does the "Medicaid specialist" help you leave something behind for your family?  Do you know for sure that the "Medicaid specialist" isn't a company affiliated with the nursing home with and will make sure that every cent goes there rather than for you and your family?
	Lawyers -- even those who don't go to court very much -- are trained to be your ADVOCATE, to argue your case.  They don't just tell you how to answer the question on line 3.  The lawyer is there to make your case when things go wrong, to persuade, to figure out an angle that will save your skin.  The good lawyer is there for you even afterwards, when something looks funny or there are new papers to fill out.  Is the "Medicaid specialist" going to know all the issues that can come up if a transaction cannot be explained and is considered a transfer of assets that may result in denial for your loved one and a lawsuit for you?  Will the "Medicaid specialist" fight for you, go to a fair hearing, spend hours on the phone with DSS arguing about the amount of income that does or doesn't have to be contributed to the nursing home?
	A lawyer is going to understand exactly what is meant by the words in that deed, that power of attorney document, that will or trust. The lawyer will spot the problem BEFORE it blows up in your face.  A "Medicaid specialist" is not trained to know that.  A lawyer is going to know that when DSS is saying something that conflicts with federal law, DSS is WRONG, even if it is "policy."  A "Medicaid specialist" won't.  A lawyer is also going to know when the nursing home is lying to you, is threatening something illegal, and can be stopped. A "Medicaid specialist" won't.
	Only a lawyer is bound by rules of professional conduct that require loyalty, zeal, and confidentiality.  Is a "Medicaid specialist" required to keep in strictest confidence anything that a client tells him/her? Are conversations between you protected by "attorney-client" privilege? If you feel that the Medicaid specialist left you in the loop, told you something wrong, can you file a grievance and seek redress, as you can when the person is a lawyer?
	Only a lawyer will carry malpractice insurance. (It's not required, though, so feel free to ask your lawyer for proof of coverage.)  If the lawyer misses a deadline or tells you something that is plainly wrong, and you are injured financially, you can file a claim with the malpractice carrier.  Does a "Medicaid specialist" have malpractice insurance?

        Did you know why Connecticut lawyers don't call themselves "Medicaid specialists"?  Because they CAN'T.  The Connecticut Rules of Professional Conduct prohibit LAWYERS from saying that they "specialize" in a field of law, unless it has been recognized as an area in which specialization may be determined, and "unless the lawyer is currently certified as a specialist in that field of law by a board or other entity which is approved by the Rules Committee of the superior court of this state."  (Rule 7.4 and 7.4A.)  Nothing other than general rules about fraud prohibit anyone who is not a lawyer from claiming to be a "specialist" in anything.

        Don't get me wrong.  Lawyers certainly don't know everything and people who aren't lawyers can be very helpful.  I call my assistant my "Benefits Specialist." She helps people with the nitty-gritty of applying for and keeping benefits of various kinds, including but not limited to the Medicaid that pays for nursing home care. She knows the insider rules, inside and out.  (And her hourly rates are less than mine.)  She knows whom to call and where the forms should be filed.  She works tirelessly to get the information you can't seem to find or didn't know was important.  BUT -- she works with me and under my supervision. I can tell her when the law changes, and that the rulebook is now out of step. I can tell her when the rules conflict with federal law and are illegal. I'm the one who keeps current on what DSS is doing and not putting in the rule-books.  Or when the legislature changes the law and the DSS books are out of date.  I'm the one who can argue with the Policy Unit, make legal arguments at a Fair Hearing, or go to probate court to implement a strategy.  She knows what she doesn't know and wasn't trained to know, and doesn't tell you you don't need a lawyer. And I am the one who decides if and when you need the lawyer. She doesn't.

        So -- a "Medicaid Specialist" is not enough.  Not even from an agency that says it can refer you to a lawyer "if you need more help" or has "the lawyer we send people to."  At a minimum, you need to consult your own attorney, an attorney who practices actively in the field of elder law to discuss options, strategies, and have the lawyer spot the issues you will miss.  There is no substitute.*

*Of course, I don't guarantee that every lawyer is a good lawyer, returns calls, or charges fair fees (although unfair fees are also a violation of the Rules of Professional Conduct for lawyers).  Get information about fees up-front.  Make sure there is a written agreement unless it's just a brief consultation.  Don't be rushed into agreeing to anything.  Be savvy when choosing a lawyer, too.