Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle. Welcome back for another episode of Legal Tea! Today’s topic is a current trend … something going on in the current time or that I’ve stumbled across on the news or social media, that is pertinent to my little estate and elder law world. This week’s episode is on whether it’s appropriate or not for non-attorneys to help residents or soon-to-residents of long-term care (like nursing homes, for example) navigate Medicaid benefits and Medicaid laws. You see, I’ve talked about this topic, or at least a similar topic, on here before – but I recently stumbled upon an article written by Ted Sherman and Karin Price Mueller with NJ Advance Media, which is a news agency in New Jersey, about this very issue – and I thought, “Heck, let’s talk about it.” So here we are!
Before we REALLY dive into this topic and article, I think it’s important to get a good foundation on something that some may THINK they know – but they don’t. If I asked you, “What do you think elder law is?” How would you answer? Take a second … think about it. Should I play some Jeopardy music? Well, contrary to what many people think, elder law is NOT really “helping old people with things.” What I mean by this is if I do a Power of Attorney, or a Will, or a Health Care Directive for someone that is 87, that is still just estate planning, friends. Elder law is more dependent on WHAT me, the attorney, is doing for someone. It’s not really the age. One of the biggest things that elder law attorneys help with is help families and clients understand ways/options to pay for things like home health care, assisted living, and/or nursing home – and specifically, if someone wants to gain eligibility for governmental benefits like VA or Medicaid (NOT Medicare … Medicaid!) to assist with paying for medical care, whether at home or a senior facility.
Because of this, I, as an estate and elder law attorney, help families navigate gaining eligibility for Medicaid a lot – so this article on NJ Advance Media by Sherman and Mueller really resonated for me. And while it’s written in New Jersey and even talks about pending legislation in New Jersey, the issues they touch on are big issues in EVERY state – including here in Indiana, which is where this podcast is based from. I remember similar legislation happening in Florida not that long ago. So, yeah – while this is based in New Jersey, it’s definitely a pertinent issue for all of us – whether we’re in the senior space OR we have family/loved ones that are seniors that may end up navigating something like this.
Alright, so now that we have that foundation, I think we can dive into this article and explain what is going on. So, in New Jersey, there is a Bill that has been introduced by State Senator Joseph Vitale, a Democrat, and co-sponsored by State Senator Robert Singer, a Republican (I mention the party affiliations because it shows it’s a relatively bipartisan effort!), would, as the NJ Advance Media article states, “would prohibit Medicaid applications assistors who are NOT attorneys from charging for providing Medicaid application assistance to nursing home residents or their families.” By the way, if you’re a nerd like me, I did link, in the source links for this episode, not only of course to the NJ Advance Media article, but to the actual Bill itself too.
The article primarily talks about a company called Advanta Medicaid Specialists, who is owned by a gentleman named Nissim Aryeh (who went informally as Sam). Sam, as the article explained, would hang out in the lobby of nursing homes and provide free seminars about the rising costs of long-term care – and in those efforts, he told those that listened, he could help. So, people would pay him between $3000-$9000 to help them qualify for Medicaid (to pay the nursing home). Advanta is not alone either – there are several of these companies “out there” in New Jersey and I’d venture to say in EVERY single state in the country. We definitely have them here in Indiana, for example, and I belong to a national organization of estate and elder law attorneys – and these Medicaid assistance, non-attorney companies are often discussed in this “community.”
As the article explains, first of all, this non-attorney, Medicaid assistance industry is largely unlicensed and unregulated, so while there may be some good and okay ones, without an licensing or regulation, it’s more ripe for not-good-things, right? Along these lines, NJ Advance Media dug deep and found “allegations of deception, consumer fraud, and what state officials called ‘significant financial loss’ to nursing home residents.” An example of this is a lady by the name of Leslie Walsh. Leslie’s father-in-law, Joseph Walsh, was in a nursing home, the family paid Advanta $6000 to assist with Medicaid, and even though Advanta has marketing pieces that say, “If we do not get you approved for Medicaid coverage, you won’t pay a penny.” … Well, Leslie’s father-in-law passed away before the application was submitted. And I get it; I’m a business owner – I’m sure Advanta did SOME work before Leslie’s father-in-law passed away, but if that’s the case, maybe they should be a little more wise about their marketing messaging “out there.”
One of the groups that is not too fond of the legislation is the nursing homes themselves for a couple different reasons that I want to talk about. First, they think eliminating the ability to refer to these non-attorney Medicaid assistance companies is unfair … that, it’s unfair to force families to work with an attorney for the Medicaid process. However, the article notes that if someone already qualifies for Medicaid, they can obtain Medicaid paperwork for free through various county agencies – so if someone does NOT already qualify for Medicaid, then the legislation would encourage those individuals to seek legal assistance. I get it that argument. There are times that prospects land in front of me or someone at my firm where, honestly, they already qualify…and we, sort of, explain like, “Hey – you don’t need to hire us to get qualified for Medicaid. You CAN, but definitely don’t have to. You already qualify!” So, in that regard, I think those in my space would have to work out a better system between me, the elder law attorney, and the nursing home. Like, you, nursing home, take care of those that already qualify (or maybe ALLLLLMOST qualify) and we’ll take care of those above, say, $XYZ amount. It’s doable – but it’d be a bit of a change (and we know how people feel about change!)
A second reason nursing homes are not big fans of the pending legislation is because, as the article notes, there is somewhat of a conflict of interest between the nursing homes and the Medicaid assistance companies they recommend … here’s why… Nursing homes pocket more money from those that private pay rather than Medicaid paying. So, if nursing home residence, Susie, has too many assets, the nursing home, rather than sending Susie to get legal assistance to protect assets and get qualified for Medicaid, the nursing homes are having Susie pay privately until she’s nearly out of money, then the Medicaid assistance company will swoop in later to get Susie qualified for Medicaid. So, there’s an inherent conflict of interest/bias there for the nursing homes, whether they actually admit it or realize it. So, like in the article, they interviewed an elder law attorney named Jerold Rothkoff, who shared, “It’s a self-referral. They’re [talking about nursing homes] not acting in the residents’ best interests. They’re acting in the best interests of the nursing home because that’s their food source. That’s where the money is coming from.”
I can’t say I disagree. It’s probably because I am an attorney after all and granted, I don’t do any type of litigation where I actually have to argue about things – but I can usually come up with arguments on different sides and different perspective. Here, on this issue, it’s got a lot of competing interests … a lot of interesting perspectives to understand. I did an episode (episode number 66) which you care to listen, I will definitely complement this episode. One of the things that opponents, especially these non-attorney Medicaid assistors, of the pending legislation often anchor to is (and the NJ Advance Media article notes) that elder law attorneys are super expensive and are just flat not needed for some people.
Well, on episode number 66, I dove into this very thing – that, the primary reason that attorneys are sometimes more expensive than these companies (which to be honest, him charging $3000-$9000 is exactly spot-on what we would charge depending on the type of case, single versus married, etc.) … anyway, the primary reason is because practicing attorneys have to carry so many more expenses than non-attorneys. Like, we have to carry malpractice insurance; dues for bar associations for local bar association, state bar associations, national-based groups and associations; license registration and renewal fees from the State of Indiana; pay for mandatory continuing education courses; costs to gain access to online research platforms to provide access to cases, rules, etc.; etc. Do I dare even bring up how expensive it is to go to law school (which of course non-attorneys don’t have to go)? The list could go on-and-on-and-on. So yeah, we may be more expensive or as expensive, but it’s for good reason – it’s to protect YOU, the consumer. That’s why.
If you care to know what happened to Advanta and “Sam” who sat in the lobby and doing seminars, the NJ Advance Media article notes that Advanta ended up getting shut down. And, that Sam reached a settlement with the State of New Jersey in October 2022 by reaching a plea deal of him paying $38,000 in restitution and a requirement to perform community service.
And, on the pending legislation, it’ll be super interesting to see what transpires. Leslie Walsh, the one that used Advanta for her father-in-law, shared with NJ Advance media that “the proposed … legislation is sorely needed … and …. She applauded any legislation that makes the public more aware of their options and consequences of the decision they make over nursing care.” We’ll have to keep an eye on this legislation, for sure. I’m fairly certain other states, too, have started to or have already came down on these types of Medicaid assistance companies run by non-attorneys. Like, I remember hearing similar mumblings happening in Florida maybe a few years ago. So, I think this whole topic and issue will be one that more-and-more states grapple with – and try to figure out how to tackle. So, be sure to be mindful of this episode if you work professionally in the senior space and/or if you have a loved one that ends up needing care, whether at home or long-term care, and Medicaid is something that needs to be discussed.
Alrighty, let’s wrap this episode up -- next week’s topic is on estate planning of the rich and the famous – on that episode, we’re going to dive into what happened estate-wise following the passing of super well-known singer and songwriter, Barry White. His estate will gives us the opportunity to learn about a little nuisance in estate law – that is often not known about, until it’s too late. Anyway, tune in next Tuesday, Legal Tea Listeners, as I dive into his estate – Talk to you then and stay well!
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