By Donna Jackson, LLM, and Leonard E. Mondschein, LLM, CELA, CAP Introduction The five-year trust, or Medicaid asset protection trust as it is sometimes called, is an irrevocable trust designed to hold and preserve assets and either accumulate or distribute income. An individual transfers his or her assets to the trust and usually retains a [...]
What are the realities when nursing homes engage in relationships with nonlawyer Medicaid planners and things go wrong? The following is a simplified example: A nonlawyer’s Medicaid planning strategies have failed for a resident of the facility. Because of incompetent Medicaid planning efforts, the elderly resident is now ineligible for Medicaid benefits and [...]
DOES WORKING WITH A NONLAWYER MEDICAID PLANNER INCREASE THE NURSING HOME’S UNCOLLECTIBLE ACCOUNTS RECEIVABLE?
Uncollectable accounts receivable are debts that have no chance of being paid. When Medicaid planning by a nonlawyer fails for an elder resident, how will the nursing home be paid for services rendered? Questions that need to be asked when nonlawyer Medicaid planning fails: Are unpaid nursing home bills the result of financial [...]
Commissioned-Based Medicaid Planning Fees Some nonlawyer Medicaid planners are compensated when they sell annuities. These individuals target seniors who exceed Medicaid eligibility limits. A senior purchases an annuity from the planner in order to fall within Medicaid asset limits, and the Medicaid planner takes a commission. The commissions associated with a Medicaid-qualifying annuity can [...]
IS IT AGAINST THE LAW FOR A NURSING HOME EMPLOYEE TO BE PAID A FEE TO REFER MEDICAID CASES TO A NONLAWYER MEDICAID PLANNER?
When facilities or employees receive rewards for referring to nonlawyers, things take a turn for the worse. Under Florida law, “bribes, kickbacks, and certain solicitations are prohibited.” The nursing home that engages in such activity may be subject to civil liability or even criminal penalties. But imagine how easy it is for an overwhelmed [...]
CAN THE NURSING HOME GET IN TROUBLE IF THE NURSING HOME EMPLOYEES KNOW THAT THE NONLAWYER MEDICAID PLANNER IS ENGAGING IN UPL?
Yes, it is possible. According to Florida Statute 777.011, (and as stated in Chapter 3): Both referral sources and seniors who retain a nonlawyer for Medicaid planning purposes should be aware of the possible illegality of their actions, however unwitting or intentional their actions may be. “Whoever commits any criminal offense ... or aids, abets, [...]
One might think at least in principle that fiduciary responsibilities exist for the nursing home. But under Florida law that is not the case. The answer is based on case law - and Florida has not recognized a fiduciary relationship between a nursing home and its residents. There are no opinions in the jurisprudence of [...]
The Florida Agency for Health Care Administration (AHCA) is very involved with Florida nursing home and long term care facilities, and Florida Medicaid proceedings and administration. This includes all Medicaid planning activities. Florida AHCA is responsible for: administrating the Florida Medicaid program, licensure and regulation of Florida’s health facilities and providing information to Floridians about [...]
Serious liabilities may lurk for long-term care facilities and employees affiliated with nonlawyer Medicaid planners. When a non-lawyer Medicaid planner’s actions result in the nursing home resident’s personal financial harm and/or denial of Medicaid eligibility, this can become a matter of financial exploitation of the resident. Depending on the case, the facility in which the [...]
No. By definition, only an attorney licensed to practice law would be entitled to have legal malpractice insurance. If an annuity salesperson only holds a license with the Florida Department of Insurance (or no license at all), that person would not be able to purchase legal malpractice insurance. The financial stakes are very high in [...]