Medicaid and the New Jersey Division of Consumer Affairs – Watch Out!
The NJ Division of Consumer Affairs (DCA) recently released guidance for people who are helping their loved ones fill out applications for Medicaid benefits for, among other things, nursing home and assisted living facility residents. DCA emphasizes in its advisory notice something that we have been telling clients for years: a Medicaid application is more than filling out a form and attaching documents. While Medicaid is a State-administered program that pays healthcare costs for the sick and the elderly, it is also subject to federal law when it comes to who can help with the process.
As you might know, you can try to fill out these applications yourself, or you can get help. What you might not know is that lawyers are not the only ones trying to help caregivers fill out applications. DCA points out that those who are eligible can seek the assistance of Medicaid Advisors, or “Application Assistors.” Application Assistors are not lawyers, are limited in their services, and are not permitted to provide advice on matters that require the professional judgment of a lawyer. Advisors can perform certain services without pay or compensation, such as provide information on insurance affordability programs and coverage options. Filling out forms, submitting applications, attaching documents and interacting with the agency are all within their range of abilities.
What Application Assistors cannot do is give legal advice. If a caregiver needs help with any legal documents, or has questions about how to become eligible for Medicaid through transfers of assets, or even simply to know what a person is allowed to keep, the answers here are legal advice. DCA has received multiple reports of Application Assistors, or so-called “Medicaid advisors,” charging substantial sums of money and delivering faulty or incomplete work. They also routinely advise as to matters that are the unauthorized practice of law. For more on where that distinction lies, see Opinion 53 of New Jersey's Commitee on the Unauthorized Practice of Law, available here.
A Medicaid Advisor/Application Assistor can manage cases between eligibility determination and regularly scheduled renewals. However, providing advice on any Medicaid strategies is prohibited and considered unauthorized practice of law. Our concern is that if an Application Assistor exceeds its role, caregivers and their families can suffer benefit ineligibility and significant financial loss. If this has happened to you, the Division would like you to use the web address and/or phone number provided at this link: Medicaid Advisors / Application Assistors. You can also reach out to this office for assistance.
As an aside, this brief was due in part to the advocacy efforts of the New Jersey chapter of the National Academy of Elder Law Attorneys (www.naela.org), an organization of select elder law attorneys in New Jersey who devote themselves to legislative and litigation advocacy for the benefit of caregivers and their families in the state.
Carl Archer is the President of NJ NAELA for 2016-17, and has met with members of NJ NAELA as well as representatives from Medicaid and DCA to assist in this advisory becoming a reality.
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