A growing problem in the long-term health care industry is whether a Medicaid application company is representing the nursing home or the patient. The situation reeks of a conflict of interest. Something that every senior should think long and hard about is: who is representing you?
A colleague of mine from Cherry Hill, NJ, Jerold Rothkoff, is an elder law attorney and an outspoken critic of Medicaid advisory firms. He states that many of those firms have relationships with the owners or operators of the nursing homes because they also do billing and collection work for them.
“It’s a self-referral. They are not acting in the residents’ best interests. They’re acting in the best interests of the nursing home because that is their food source. That’s where their money is coming from,” he argues. Rothkoff also notes that Medicaid application companies, unlike attorneys, are unregulated and unlicensed.
In my previous life as Assistant Attorney General to then Attorney General Joe Lieberman, he would often say, “If something sounds too good to be true, it probably is.” So, if a facility is pushing too hard for you to use “their people” for “free,” or if a Medicaid application company is offering to do the application at a severely discounted rate, then you should be very suspicious.
Think about it. If a conflict develops between you and the facility and litigation is required, the “chosen” representative may not vigorously represent you.
In the past few years, I have heard many families tell me that they are being told that they do not need an attorney to advise them on Medicaid long-term care issues. This is true. And you also don’t need a dentist to fix your cavities, but it sure helps.
As we have noted many times in this column, you have to be very careful who is advising you on protecting your home and assets. Why would you consult with a banker, financial planner, accountant or lawyer who does not specialize in elder care issues?
Hiring an attorney is a difficult decision. Elder law, in particular, is a complicated field. Beyond simple estate planning, a good elder law attorney will advise clients on a wide range of long-term care planning issues, taking into consideration emotional and other non-legal issues. Estate planning – taking care of what happens to your assets after death – is just one facet. The other is taking care of your assets, needs and physical care before that event. Elder law attorneys help you plan for illness, disability or incapacity. As people live longer lives, their extended care will become more and more of the planning focus.
Just as you would seek out a certain type of physician for open heart surgery, you should seek out an attorney who has focused his or her career in the limited practice area of elder law, or long-term physical care and financial planning needs. And for that matter, why would you ask a non-attorney to interpret the law? A good attorney offers far more than an attorney who does not focus on this particular area of law, and you should expect far more from him or her.
An experienced, well-qualified, elder law attorney has the background to recognize problems that you aren’t aware of, such as the consequences of powers of attorney and potential conflicts between different family members. The purpose of careful planning is to ensure that your desires are carried out even when you can’t speak for yourself. You want to be certain that your attorney can evaluate all the consequences of your written word, especially consequences you do not anticipate.