WHY USE AN ATTORNEY WHEN APPLYING FOR MEDICAID?

Applying for Medicaid benefits can be a daunting process. The Deficit Reduction Act of 2005 increased the look-back period for nursing home applications from three years to five years (36 months to 60 months). This means that five years of financial documentation must be provided to the Medicaid agency in order for the application to be complete.

Unfortunately, the Medicaid application process is not one that can be easily researched online. Due to specific rules and regulations, as well as the lack of uniformity amongst counties, it is a matter of knowledge and experience in the area that allows for successful navigation of the system.

While there are certain cases that can be handled without the assistance of an attorney, it is important for an applicant and his or her family to obtain competent legal advice if they are interested in protecting assets, or if the applicant has made gifts within the five years prior to applying for Medicaid.

Unlike other areas of the law, specific instructions and procedures are difficult to find in writing. For example, in New York City a “transmittal” form is required, while Nassau County asks for a “pick-up letter”. If the documents specific to the applicant’s county of residence are not provided, the application can be refused or denied, which can potentially affect the applicant’s eligibility date. Counties also differ in the turn-around time allowed for additional information requests and in the ability to grant extensions to obtain missing documentation.

Furthermore, an elder law firm can devise and implement a comprehensive Medicaid and estate plan that often saves clients thousands of dollars. Creative legal techniques may be used to preserve assets even at the 11th hour in most cases.

We have had clients come to our office who had either been unaware of the existence of elder law attorneys or who did not want to pay for fees associated with using an attorney. Unfortunately, many of these clients have had Medicaid applications that had either been denied or had been approved for a period and then subsequently denied when Medicaid reviewed the case and discovered an issue at a later date.

For example, it is not uncommon for a family to come into our office after receiving guidance on how to protect assets with a ‘gift/loan plan.’ A gift/loan plan is a technique that can save approximately half of the applicant’s assets even if advanced planning was not done. Unfortunately, it is all too likely that such a plan will not be implemented correctly, and that rules will be misapplied by a non-attorney who is not familiar with all the planning techniques available to him or her. As such, it is beneficial to obtain the advice of an experienced elder law attorney who can implement the right plan, explain all the rules, and weigh the costs and benefits of the best Medicaid plan under the circumstances, including gift, estate, and capital gains tax implications. Each case must be assessed and tailored to the individual’s specific needs, rather than applying the cookie cutter approach often employed by non-professionals.

Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm in New York that exclusively concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The article was co-written by Stacey Meshnick, Esq., senior staff attorney at the firm who has chaired the firm’s Medicaid department for over 15 years. For more information go to the WELLNESS VILLAGE on the PRO website.