Why a "Medicaid Specialist" isn't Enough

Lisa Nachmias Davis
Davis O'Sullivan & Priest LLC
129 Church Street - Suite 805
New Haven, CT 06510

     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.  Why doesn't that make sense?  Why should you seek help from a lawyer instead, or in addition?

     First, let's be clear. When I say "a lawyer" I don't mean any Tom, Dick or Harry who hangs out a shingle and claims to practice "elder law." 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.  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.  And of course the lawyer should be in the state where Medicaid is being sought.  So when I saw "lawyer" I mean a lawyer who practices actively in the field of elder law, and keeps current. 

Why use a 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 many states (not, unfortunately, Connecticut) they are required to take continuing education courses to ensure that they are current.  If a lawyer is a "CELA" (elder law attorney certified by the National Elder Law Foundation) that person is required to take continuing education in order to remain certified.  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" tell you that you can give everything to your disabled child instead of paying a cent to the nursing home? 

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.  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?

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.  A "Medicaid specialist" is not trained to know that.  A lawyer is going to know when DSS is saying something that conflicts with federal law, is WRONG.  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" privileged? 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.  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 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 who 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.  I'm the one who can argue with the Policy Unit, 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.

So -- a "Medicaid Specialist" is not enough.  At a minimum, you need to consult 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).  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.