Individuals and companies with no license to practice law, yet stake their claim as Florida “Medicaid planners” run the gamut.
Individuals as Medicaid planners
Public record shows that the following types of individuals have been Medicaid planners in Florida:
- annuity salesmen
- insurance salesmen
- geriatric care managers
- Florida licensed nurses
- former nursing home employees
- former DCF employees
- a disbarred attorney
- a convicted felon
- individuals with revoked insurance licenses
- an individual permanently barred from the securities industry by Financial Industry Regulatory Authority (FINRA)
- individuals permanently barred from the securities industry by the Florida Office of Financial Regulation
- a variety of other untrained and unlicensed individuals.
Medicaid planning companies
“But we work with lawyers!”
When lawyers themselves collaborate with nonlawyer Medicaid planners, more ethical and legal issues can arise. Attorneys not only run the risk of engaging in felonious activities, they risk crossing the line of the rules of professional ethics, bypassing the “duty of loyalty only to their client.”
- An attorney who works with a nonlawyer Medicaid planner needs to be careful not to violate “Confidentiality of Information” when interacting with the nonlawyer. See The Florida Bar, Rules of Professional Conduct (RPC) 4-1.6. Since the nonlawyer Medicaid planner may only collect information for the purpose of filling out a Medicaid application and not to develop a Medicaid strategy or to prepare legal documents, the attorney needs to be mindful of breach of confidentiality by disclosing private and potentially sensitive information to the nonlawyer.
- When the Medicaid planning company refers all or most of its Medicaid application clients to the same attorney for Medicaid planning services, the potential for a “Conflict of Interest” “under RPC 4-1.7 exists. When the attorney is receiving substantial income from a nonlawyer Medicaid planner, it is arguable that the attorney’s loyalty is to the nonlawyer and not to the client who has been referred.
For these and other reasons, the Florida Supreme Court Advisory Opinion also targets Medicaid planning companies that profess to work with lawyers, where those lawyers prepare Medicaid planning documents for the company’s clients.
The Florida Supreme Court determined this practice between such companies and attorneys also constitutes the unlicensed practice of law unless:
the client establishes an independent attorney-client relationship with the attorney;
payment from the client is made directly to the attorney, and the attorney specifically determines the legal Medicaid planning strategy and legal documents as appropriate for the client, given the client’s particular factual circumstances.
In response to the Florida Supreme Court UPL advisory opinion, some non-attorney Medicaid Planners merged their entire Medicaid planning company – including all employees – with Florida law firms.
What if a non-attorney Medicaid Planner becomes an employee (paralegal) for a licensed attorney? This may still constitute UPL by the non-attorney, as well as aiding and abetting UPL by the attorney. Does this new arrangement eliminate the UPL problem for the non-attorney?
What facts should the nursing home look for?
- Did the attorney communicate with the client?
- Did the attorney supervise the employee’s activities?
- Did the client hire the attorney before they met the employee?
- Did the attorney receive the larger part of the fee?
- Did the attorney discuss Medicaid strategies with the client or split the fee with the non-attorney?
These are some of the factors to be evaluated in determining whether or not UPL and/or ethical violations may have been committed.
Excerpt From: John R. Frazier, Leonard E. Mondschein. “Protecting Nursing Homes and Their Residents from the Unlicensed Practice of Law.” iBooks.