Ruling Targets Non-Lawyers Providing Medicaid Advice
The Florida Supreme Court issued a ruling Thursday that took aim at non-lawyers who are paid to help people get Medicaid benefits -- including seniors who need Medicaid coverage for nursing-home care.
The Supreme Court approved a proposal that said some of the services provided by so-called Medicaid planners constitute the improper "unlicensed practice of law." The proposal came from a Florida Bar committee, which worked on the issue for months and concluded a need to "protect the public from harm."
"Testimony described the type of harm caused by non-lawyer Medicaid planners which includes denial of Medicaid eligibility, exploitation, catastrophic or severe tax liability, and the purchase of inappropriate financial products threatening or destroying clients' life savings,'' the committee said in part of the document. "The potential for public harm is even greater when the non-lawyers put themselves in a position of reliance and advising the customer as to the proper course of action to take."
The issues focused, at least in part, on services provided to families as they try to get Medicaid coverage for people going into nursing homes.
As an example, the Bar committee pointed to non-lawyers preparing what are known as "qualified income trusts," which are used when Medicaid applicants' income exceeds certain thresholds. Excess income needs to go into trust accounts each month for applicants to qualify for Medicaid coverage.
The Bar committee, formally known as the Standing Committee on the Unlicensed Practice of Law, cited examples of non-lawyers improperly preparing such a trust and giving incorrect advice, which led to Medicaid benefits being denied.
As another example of the issues involved, the Bar committee pointed to non-lawyers providing legal advice about how to structure assets so that people can qualify for Medicaid.
"Assessing the facts relevant to a client's situation, applying those facts to the laws governing Medicaid, developing a plan to structure or spend the client's assets in compliance with those laws, and drafting legal documents to execute the plan, would constitute the practice of law … ,'' the proposal said.
"It is the opinion of the Standing Committee that when a non-lawyer engages in these activities or renders legal advice regarding the implementation of Florida law to obtain Medicaid benefits the non-lawyer is engaged in the unlicensed practice of law."
But documents posted on the Supreme Court website show that at least two non-lawyers objected to the committee's conclusions.
For instance, William B. Burns, who holds insurance and securities licenses, filed a brief early last year that said part of his business involves providing Medicaid planning services. The brief argued, in part, that professionals with insurance and securities licenses are subject to regulation and that the Bar committee looked at "extreme examples" of Medicaid planners.
"Presenting these isolated cases as representative of the various people who provide these services is both a disservice to the public and to the professionals who provide Medicaid planning,'' the brief said. "The record is clear that there are very few complaints of non-lawyer Medicaid planners engaging in the unauthorized practice of law."
Under the Florida Constitution, the Supreme Court has the authority to regulate attorneys and prevent the unlicensed practice of law. The Bar investigates allegations and acts as a prosecutor in civil cases involving the unlicensed practice of law, according to information on the organization's website.