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Interest in Certified Medicaid Planner Designation Grows as VA Benefit Rules Get More Strict

For nearly the past decade, the Certified Medicaid Planner designation has been awarded to competent advisors seeking to set themselves apart in the planning field as the best of the best. Interest in this designation has grown substantially in the last few weeks, partly as a result of new rules issued by the Veterans Administration (“VA”).

The new VA rules greatly impinge upon the ability of veterans to get the VA Improved Pension, also referred to commonly as the VA Aid & Attendance benefit. This is a little-known benefit that can be used to help pay for care at home, in a nursing home or in an assisted living facility. While the benefit is typically not as hefty as Medicaid’s assistance, it is paid to the claimant a cash payment. The claimant can be the veteran, the veteran’s spouse, or the veteran’s widow, provided that the veteran served during a period of wartime. The benefit is means tested, but until recently it was rather easy to reposition assets to qualify.

Much like the evolution of Medicaid eligibility over the years, the VA has moved to further restrict access to the benefit by punishing those who give away assets to qualify. Medicaid has had some version of this since the late 80’s when it started with a 30-month lookback, then moved to a 36-month lookback in in the 90’s and eventually to a 60-month lookback in 2006. The VA is attempting to mimic Medicaid in several aspects by adopting a 36-month lookback on asset transfers, but starting the penalty the month after a transfer is made. It has also taken the Medicaid’s maximum protected amount for community spouses and adopted that as a bright-line asset test for applicants, currently $123,600.

The complexity of the new eligibility requirements will mean that fewer veterans and their families will be able to tap the benefit. For planners, it will drive some out of the business similar to how restrictive rules did with Medicaid planners years ago. Those who choose to continue on with VA benefit planning will need to learn the new rules and start thinking like a Medicaid planner.

For some, it has meant to move their practices into Medicaid planning. In the last few weeks, the CMP Governing Board has seen a sizable uptick in interest with many advisors active in the VA benefit arena looking to grow their businesses by adding Medicaid planning. We have resources that can help you add Medicaid planning to your practice, including the largest textbook ever written on the subject, online and in-person educational programs that are second to none, real-time practice mentoring and case development, and back-office Medicaid application services to support your practice. Many planners choose to enhance their practice by getting the nationally-accredited Certified Medicaid Planner designation.

To learn more about the CMP designation, click here for a free download of the “How to Become a CMP” brochure.

 

 

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More States Request End to Retroactive Medicaid Coverage

Medicaid, as a general rule, will allow for coverage for up to 3 months prior to the month of the application. The applicant would have to have been otherwise eligible in those prior months and just not have filed the application.

This is helpful for many families who seek Medicaid coverage for outstanding medical bills under the general health insurance side of Medicaid. It is also helpful for those who are in nursing homes because many, especially those cases with a community spouse, do not realize that they have overspent blow the asset limit and can oftentimes file for Medicaid several months after they have become financially eligible.

In a move to find ways for states to reduce their coverage and costs under the Medicaid program without legislation, the Centers for Medicare and Medicaid Services (“CMS”) are encouraging and allowing the approval of a waiver of the retroactive Medicaid coverage rule. This allows states to apply to CMS for approval to stop providing coverage during that 3-month period immediately preceding the Medicaid application.

Several states have taken advantage of this, including Florida, Indiana, Arizona, Arkansas, Kentucky (which is tied up in court), New Mexico, and New Hampshire. Arkansas, Indiana and New Hampshire only apply to adults who have gained health insurance under the ACA’s Medicaid expansion, while the other states eliminate retroactive coverage for all programs, including the long-term care program.

The most common usage for retroactive coverage in the long-term care application process is usually to make up for poor processing of applications. For instance, if an applicant applies for nursing home Medicaid coverage and 2 months into the process they get an improper denial for whatever reason, they have 2 choices: request a fair hearing which could take months or refile the application and reopen the file. The later choice is typically the most expedient even though it requires abandoning the previous application date. The 2 intervening months are typically just covered under the retroactive coverage and this can get an approval without the high cost and delay associated with a fair hearing.

For those in states that eliminate retroactive coverage, that process is no longer available. This will force more applicants into fair hearings that would otherwise be unnecessary. Applicants facing back medical bills for long-term care will have to utilize a little-known provision that allows for the allocation of future monthly nursing home co-pays towards pre-eligibility medical bills. This works well, but can usually only be implemented after Medicaid is approved.

Each month instead of paying the monthly liability to the nursing home, the patient’s income is used to satisfy outstanding medical bills – even the back balance at the nursing home. That at least gives those without retroactive coverage some backup plan to cover high bills incurred prior to the actual application, but does nothing to help community spouses recoup money they spent after they became financial eligible.

This also means that more people should seek assistance when filing their Medicaid application. Help with an application can avoid the need to have to re-file because a novice makes a mistake during the application process. Those mistakes can be costly and can be avoided with expert help to guide the applicant.

 

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Beat the Medicaid Income Limit: Can a Miller Trust Help Your Clients with Medicaid Eligibility?

In the world of long-term care Medicaid, a nursing home patient can get assistance if they meet certain basic eligibility requirements. One of the most confusing requirements is the income limit.

In essence every state imposes an income limit. In the majority of the states, the basic premise is that the nursing home patient doesn’t have enough monthly income to cover the cost of care. If you have enough income each month to pay the nursing home, you don’t need or qualify for assistance. If you don’t and you meet all the other eligibility requirements (i.e., your assets are spent down below the state reserve limit) then you can get help.

There are a certain number of states that use an income limit much lower than the cost of care. These are known as “income cap” states. In an income cap state, if the applicant’s income exceeds the state income limit for Medicaid, they are automatically disqualified and cannot get Medicaid to help pay for their long-term care expenses, even if they are completely broke and do not have enough income to cover those expenses directly.

The state income cap is set at 300% of the federal poverty income. For 2018 this amount is $2,250. In every state with an income cap, the cost of a nursing home is more than double (and in most cases more than triple) the state income cap.

Many seniors have incomes that exceed the income cap, but do not have enough income to cover the cost of a nursing home once they have depleted all other resources. Fortunately, there is a way to beat the Medicaid income cap!

Federal laws on the creation of trusts under Medicaid allow for defeating the income cap for everyone and here is how it’s done.

There is a special type of trust formally called a “Qualified Income Trust.” Most states do not use that term. Instead it is known as either and “Income Cap Trust” or a “Miller Trust.” The later name as a result of a court case in Colorado (Miller v. Ibarra) that established the right of Medicaid applicants to use the trust as a way to overcome the limitations imposed by a state income cap when faced with the high cost of long-term care.

The biggest problem with the Income Cap Trust is that most people don’t know they exist or how they are used. This was highlighted recently when I received a question from someone who asked what other help they could get with nursing home expenses since they didn’t qualify for Medicaid because their income was too high. They had never heard of an income cap trust. Once they learned about what it was, they wished that they had learned about it when the couple had spent down enough to be asset-eligible for Medicaid.

How the income cap trust works, depends on the state in which you use it. All follow a basic format for their trusts and nearly all states provide a template form for Medicaid applicants to use to create the trust. They are typically 3 or 4 pages in length. Once the trust is executed, the trustee of the trust creates a trust checking account where funds can be deposited. Whoever is in charge of the patient’s finances either takes income from the patient’s regular checking account and deposits it into the trust or arranges to have the source of income (i.e., Social Security check, pension, etc.) directly deposited into the income cap trust.

In most states, you must only put the amount of income that exceeds the income cap into the trust. For example, if the Medicaid applicant has $2,750 a month in income, they would need to contribute the difference between the income cap and the monthly income to the trust. After the applicant deposits $500 into the trust, the applicant is considered “income eligible” for Medicaid. Alternately, in a state like Arkansas, they require that all of the applicant’s income be placed into the trust.

Ultimately, the funds in the trust are spent on the patient’s monthly share of cost or diverted to the patient’s spouse as part of the family allowance, the same as in non-income cap trust states. While it’s more work to achieve Medicaid eligibility, the good news is that the income cap is truly nothing more than a harmless scarecrow only meant to make you think you can’t get help when you really can.

If you want to be a savvy advisor, consider learning the subject of Medicaid Planning trough our upcoming Continuing Legal Education course. For more information, click here.

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Trump’s Proposed Medicaid Cuts Make Little Sense

President Trump released a budget. Fortunately in a system of checks and balances, presidential budgets do not amount to much more than a partisan wish list and likely never get enacted. The one thing a budget proposal does is give a sense of what the executive branch is thinking and when it comes to trimming Medicaid, whoever is planning the President’s budget clearly does not have a good grasp on the reality of the situation.

Long-term care Medicaid is essentially broken down into two types of programs. The first program is skilled care in a nursing home, which is considered the core need for long-term care. If you cut this program it looks like you are trying to kick grandma out onto the street and that is just bad optics for any politician.

The second program is based around nursing home alternatives and collectively called Home and Community Based Services (HCBS). These programs vary state to state and include help with home care and some assisted living. When looking at ways to trim budgets, HCBS can be seen by some as the way to reduce the government’s outlay without the perception that you’re booting anyone from a nursing home. Fewer people getting home care puts a strain on individuals and families, but the optics are far less damaging.

In the latest budget proposal, cuts to HCBS care would likely reduce dramatically the availability of HCBS care across the country. This is what happens when you create budgets without a practical understanding of how the system works. Cuts to HCBS programs will likely blow the budget up because it will drive more people from their homes into nursing homes. Caring for someone in a nursing home is typically dramatically more expensive than home care or assisted living depending on the patient’s level of care.

HCBS programs were typically developed as cost-savings mechanisms. States like Ohio have used them effectively to transition people from nursing homes back home with huge cost savings. But states like New York which let patients get up to 24-hour skilled care at home through its Managed Care program are less efficient in saving the state money. Cuts without program reforms, however, would likely lead to a massive transition of patients from less-costly HCBS programs into nursing homes and do exactly the opposite of what the budget wonks in Washington think will happen when they cut those program.

People relying on HCBS care to avoid nursing home institutionalization can only take solace at this point that a presidential budget never gets enacted in its proposed form and seldom do presidents get what they ask for. One can only pray the logic that goes into the final budget-making process is not so short sighted.

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Over one-third of Americans think Medicare will pay for their LTC costs

In my Guidebook on Medicaid I write about the Medicare myth. What is the Medicare myth? It’s the mistaken belief by people that Medicare will pay for their long-term care expenses in retirement. Until now, I haven’t seen a good report on how pervasive this myth is.

The AP-NORC Center at the University of Chicago conducted an extensive poll of adults over 40 on numerous long-term care issues. This poll quantifies how large the Medicare myth is in the US. Nearly 4 in 10 people surveyed mistakenly believe that Medicare will cover their long-term care costs.

Medicare has a very limited role in the payment of nursing home costs. It typically only covers a portion of a rehabilitation stay when followed by spending at least two midnights in the hospital before discharge to the nursing home. Medicare pays full price for 20 days of care and then a co-pay for the next 80 days that is typically shared with the patient or their Medicare supplement policy. After 100 days of coverage, Medicare abandons the patient financially and forces them to spenddown to Medicaid levels.

While Medicare does cover some cost of this 100 days of nursing home rehabilitation care, 100 days is not considered long-term. Therefore, Medicare does not cover long-term care. Yet over one-third of the population erroneously thinks that Medicare will take care of their long-term care costs. The Medicare myth prevails large.

The existence of the myth being so widespread lends itself to problems and opportunities.

The biggest problem that it creates is the lack of understanding why planning for long-term care is important. A lack of understanding leads to a lack of motivation. If a person thinks they’re covered, why would they need to do any planning? Planning could come in the form of buying long-term care insurance, but when over a third of the population does not see the insurance as being necessary, there’s no motivation to buy it when they’re healthy enough to qualify for it.

Most people only want the insurance when they realize they need it and realize they might use it someday, something many people don’t want to think about until they’ve already been diagnosed with something that makes them ineligible. When looking at long-term care insurance, the largest reason aside from price that people who want a policy do not have one is the strict underwriting criteria that makes them ineligible to get it.

If over one-third of the population is mistaken about Medicare’s ability to pay for long-term care, there’s a clear opportunity to educate. For anyone in the financial and legal world with solutions, this is a clear opportunity. Educating the public through outreach, public workshops, articles and the like can increase awareness and help change mindsets for such a large population segment that clearly should be planning. This will allow advisors who have valid solutions like long-term care insurance, hybrid long-term care annuities, and advanced Medicaid Planning solutions to begin to solve problems for a large segment of society that needs to be educated on the subject matter.

 

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Ohio Gets in Line with Medicaid Annuities (Finally!)

Ohio is always one of those states that always gets a lot of attention. Be it an election year where the fate of a nation rests on the turnout of the Eastern Appalachia states or in the sports world where everyone wonders what the [Insert Your Favorite or Least Favorite Ohio Sports Team Here] is going to do this season. When it comes to Medicaid planning in Ohio, this trend continues.

Ohio had been resistant to Medicaid safe harbor annuities in a rather unique way. The Ohio Department of Medicaid had attempted to extrapolate the post-eligibility community spouse transfer rules on to pre-eligibility Medicaid purchases. [Note: Post-eligibility transfer rules are the rules that require a community spouse to re-title jointly held assets into the community spouse’s name if those assets make up the Community Spouse Resource Allowance.] Because the community spouse’s resource allowance is limited to the maximum set by CMS each year ($119,220 for 2016), the state would limit the amount of an annuity a community spouse could purchase to the same amount. Purchases larger than that caused the applicant to receive a transfer penalty for any portion of the annuity purchase that exceeded that amount.

The Hughes opinion also decided that a state need not be named as a beneficiary of a community spouse’s annuity.

Ohio became the only state to put a lid on how much money you could put in a safe harbor annuity, violating its citizens’ rights by making it harder to be considered Medicaid eligible in Ohio than in any other state when purchasing an annuity. This was successfully challenged and taken all the way to the U.S. Supreme Court which let the favorable 2013 Sixth Circuit Ruling stand.[1]

The Hughes opinion also decided that a state need not be named as a beneficiary of a community spouse’s annuity. Shortly after the opinion was issued, other states started to take heed and change their rules. Michigan and Arkansas proactively adopted the Hughes ruling in their state Medicaid rules. But even with all of that, Ohio dragged its feet. The Ohio Department of Medicaid refused to change its rules and continued to penalize annuities; in some cases, even small annuities. This left families with no choice but to petition a federal judge in order to get their Medicaid benefits. A federal judge in Cincinnati even threatened to remove Ohio from the Medicaid system entirely if the state didn’t grant eligibility to applicants who had been improperly penalized from the purchase of a safe harbor annuity purchase. [2]

In a Medicaid Eligibility Procedure Letter dated February 26, 2016, the Ohio Department of Medicaid changed its rule to come into line with the part of the Hughes decision that explicitly stated there was no limit to the amount of pre-eligibility Medicaid safe harbor annuity purchases. Ohio is still requiring the state be named as a beneficiary in the correct position for both institutional spouse and community spouse annuity purchases.

Medicaid planners in Ohio thought annuities would be considered a viable planning tool after Hughes only to find out that using the annuity required additional litigation to get Medicaid eligibility approved. Many of them had to look at alternate planning options or risk the need for federal litigation if an annuity was involved. Medicaid planners in Ohio breathed a collective sigh of relief when the new rule change was announced. This will give Medicaid planners the same type of Medicaid planning tools available across the country.

To that, I say: It’s about time!

[1] Hughes v. McCarthy, 734 f.3d 473 (6th Cir. 2013).

[2] Wagner et al v. McCarthy, Case No. 1:14cv00648 (UD Dist. Ct. Ohio S. West Div.).

[3] Medicaid Eligibility Procedure Letter No. 112.

 

Third Edition of the Medicaid Planning Guidebook now available

medicaid guidebook-283The new edition of the Medicaid Planning Guidebook is available for sale. The best book on Mediciad Planning is now even better. After a full redesign and revision of the Guidebook, the Third Edition includes:

  • 25% more material
  • Over 1300 citations
  • Updated 2016 figures
  • State-specific rule exceptions
  • Expanded discussion of safe harbor annuities an VA benefit coordination
  • Numerous practice tips and practical examples

Purchase The Medicaid Planning Guidebook Here

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Obama Signs Bill That Helps Medicaid Planners

In August, President Obama signed into law the Notice of Observation Treatment and Implication for Care Eligibility Act (“NOTICE Act”).  This Act will greatly help families who transition from a hospital to a nursing home and are looking for Medicare payment while they can organize their affairs to move towards Medicaid qualification. The NOTICE Act requires hospitals to notify Medicare patients when they are receiving “observation care” but have not been formerly admitted to the hospital.

The bill is meant to help Medicare beneficiaries with a recurring problem.  Many face sticker shock after a hospital stay when they go to a skilled nursing facility (SNF) or rehab facility.  Medicare will not cover the tab of the post-hospital stay, which leaves the patient immediately subject to paying out-of-pocket at private pay rates.

To qualify for Medicare coverage in a post-hospital SNF stay, a Medicare beneficiary must first spend three (3) consecutive midnights as an admitted patient in a hospital; observation days don’t count towards that requirement.  It had become commonplace for people needing nursing home placement to seek a hospital stay first, so as to have the assistance of the hospital in locating an available nursing home bed and having Medicare pay for some or all of the first 100 days of care.

The rule providing for payment from Medicare often buys families time to sort through their finances and prepare for the high cost of long-term care.  Medicare typically will pay for the first 20 days of care and then cover a portion of care for the next 80 days.  This 100-day window will gives families 2 or 3 solid months to begin the daunting task of planning for how to pay for long-term care expenses.

Within the last few years, hospitals were using their ability to put someone in “observation” and then discharging them to the nursing home.  Most Medicare beneficiaries would not know at the time they are in the hospital whether they were admitted or on observation status.  After leaving the hospital, they would end up in rehab with no help from Medicare.  The sticker shock of getting the first month’s nursing home bill would cause many to panic, especially when they thought Medicare was going to pay for the services.

While this deceptive practice is not being eliminated by the NOTICE Act, the hospital is now required to put a patient and their family on notice that they are under observation and have not been formally admitted. This will let families know that they do not have a Medicare-funded grace period in the hospital and will be on the hook for costs after discharge immediately.  This also gives the family a head’s up that they need to contact a Certified Medicaid Planner™.

 

For a full copy of the NOTICE Act, click here.

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LPL pays big fine in Mass for using sham designation

As an advisor, you must truly be careful what you call yourself and the specialization you claim to have knowledge in. No more is this true in the area of professional designations not associated with a university or college degree. Advisors around the country have been using designations offed up by fly-by-night certification programs. These pay-for designations have virtually no checks and balances and basically give the certification to anyone who wants it – regardless of their actual knowledge level or sophistication in the subject matter.

Many state insurance and securities regulators have found these to be misleading and heavily used in the senior market. Often used by advisors to earn credibility with unknowing consumers to gain trust and sell insurance or investment products. In reaction to this, some states have actually pushed for and established regulations or limitations on which designations financial professionals may use and which are not suitable for use. One such state is Massachusetts as LPL recently found out the hard way.

Massachusetts rules in this area are not new. After a number of complaints in the last decade, the state decided that it needed to curb overuse of these designations because they were part of an overall “broader pattern of deceptive marketing to seniors.”[1] Under regulations established in 2007[2], the Secretary of the Commonwealth was given the authority to identify which accrediting bodies from which it would recognize designation. Shortly thereafter, on June 1, 2017 the Secretary recognized only those designations that are accredited with the American National Standards Institute (ANSI) and the National Coalition for Certifying Agencies (NCCA) as being acceptable for advisors to use.[3]

According to FINRA, of the hundreds of financial designations there are currently only seven (7) financial designations in the United States that have achieved this notable level of accreditation.[4] Accreditation is a difficult process for any certification to go through because it measures a program’s capabilities against very high standards. I know this intimately as I Chair the governing board that oversees one of those seven, the Certified Medicaid Planner™ designation.

The net result of having such high standards and for a state such as Massachusetts to limit use to only accredited designations is that it provides a vital consumer protection function so when the public sees an advisor is a Certified Medicaid Planner™ they can rely on the designation. The public can rest assured that it is an acceptable designation to the state because it has passed the high standards of the NCCA, and anyone awarded that designation understands Medicaid Planning issues thoroughly and have been fully vetted. Because, the NCCA has accredited the designation, advisors are allowed to use the CMP™ designation in Massachusetts and other states where they would otherwise not be able to use other unaccredited designations.

Despite these regulations being in effect for eight (8) years, that still has not stopped some from using inappropriate designations that Massachusetts deemed “bogus.”[5] A review of LPL marketing material by Massachusetts regulators found that there were 10 senior designations that might have violated state regulations, which gave rise to a regulatory action and a $250,000 fine levied against LPL last week.

Advisors should pay close attention to this case because the states are starting to take these issues seriously. In 2008, the North American Securities Administrators Association (NASAA) and the National Association of Insurance Commissioners (NAIC), adopted model rules that would prohibit the misleading use of senior-specific designations in connection with the sale of securities or insurance products, respectively, or related investment advice. Even the federal Consumer Financial Protection Bureau has this issue on their radar. In a report issued two years ago, they felt there was growing confusion and abuse by the misuse of unaccredited designations by advisors in the senior marketplace.[6]

An accredited certification is a great thing to have when you are trying to set yourself apart from others in the marketplace. Earning the certification offered by an accredited organization carries with it the weight of accreditation which is recognized as having met the very high standards of the accrediting agency. In an area as important as long-term care Medicaid planning which involves a wide array of professionals across multiple disciplines (attorneys, accountants, financial advisors, social workers, geriatric care managers, etc.), it was important for our board to set the highest standards and reach to meet the requirements for accreditation.   This was seen as the only credible way to unify these multiple disciplines under the CMP™ umbrella and have the proper checks and balances required by state regulators, such as those required by Massachusetts.

If you are interested in pursuing the CMP™ designation individually or having advisors in your company pursue the designation, I encourage you to visit the CMP™ Governing Board website. You don’t want to pursue any non-accredited designations that may cost you your licenses or cause you to end up paying huge fines like LPL did.

 

[1] Secretary of the Commonwealth of Massachusetts, Securities Division Report: DISCUSSION OF REASONS FOR, AND OBJECTIVES OF, NEW REGULATIONS REGARDING USE OF SENIOR DESIGNATIONS, p. 10.

[2] 950 CMR 12.204(2)(i) and 950 CMR 12.205(9)(c)(15)

[3] Secretary of the Commonwealth of Massachusetts, ORDER RECOGNIZING ACCREDITATION ORGANIZATION, signed May 30, 2007.

[4] FINRA list of Accredited Designations

[5] Newsham, Jack, Boston Globe, “LPL Financial settle title inflation case with Mass.”, July 14, 2015.

[6] Consumer Financial Protection Bureau Report: “Senior Designations for Financial Advisors: Reducing Consumer Confusion and Risk”, April 18, 2013.

 

 

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Attorney Disbarred for Botched Medicaid Plan & 4 Easy Steps to Avoid Losing Your Licenses

Every day I see the news traffic concerning long-term care Medicaid issues. Today I noticed an article about a Wisconsin attorney who was disbarred because she apparently was doing estate planning but didn’t understand Medicaid planning.

For years I have said that if you are a lawyer or financial advisor providing services to seniors and you don’t understand Medicaid planning, you’re at risk for malpractice.  Apparently, you’re even at risk of losing your licenses altogether.

The facts of this case, as reported by the Supreme Court of Wisconsin, should encourage every advisor and estate planner to learn Medicaid Planning.  In the opinion that led to the disbarment of Wisconsin attorney Lisa Laux, “the scope of Attorney Laux’s misconduct is staggering.” (Laux, is pronounced similar to the adjective “lax” which means to lack sufficient carefulness – which is exactly what it looks like Laux did.)

After a botched estate plan that included transferring assets to a so-called “Transition Trust,” Laux carried forward with a Medicaid eligibility plan that chose Spousal Refusal over Spousal Impoverishment protections.  Even the court weighed in that pursuing Spousal Impoverishment protections “would have been the preferable option given the size of the clients’ estate.”  Doing so caused a long delay in the client’s Medicaid eligibility and exposure of an additional $50,000 in care costs that the couple would not have otherwise had to cover.

If I were Donald Trump, I’d probably call her an “idiot.”  Ethical breaches aside, when you put her planning techniques under the microscope she clearly didn’t know what she was doing.

A lot of advisors that work in the senior marketplace don’t even understand the difference between Medicare and Medicaid, let alone the difference between long-term care Medicaid and Medicaid health insurance.  Many confuse the Medicaid gifting rules with the IRS gifting rules.  They just stick their head in the sand like the proverbial ostrich and figure that what they don’t know won’t hurt them.

Are you that kind of advisor?  If so, there’s help for you yet!

Here are my 4 easy steps to helping you get your head out of the sand:

  1. LEARN MEDICAID PLANNING. I’m all about making it easy to go from head in the sand to head-and-shoulders above the rest. I teach the most comprehensive course for Medicaid planning which is available online. And if you’re looking for a good summer read, try my textbook on Medicaid Planning – the largest textbook ever written on the subject. It’s not as much a “page-turner” as it is an “eye-opener.” It’s also chock full of practice tips that can really help improve the way you do business.

For more information about the Medicaid Planning Guidebook: click here

For more information about the Medicaid Planning Course: click here

  1. GET CERTIFIED. As Chairman of the Certified Medicaid Planner™ Governing Board, I would encourage everyone who reads this and wants to be considered legitimate as a Medicaid Planner to get certified. The CMP™ designation is the only one of its kind in the industry. It has full NCCA accreditation and increasingly becoming the gold standard for Medicaid Planning in the US.

For more information about how to become a CMP™: click here

  1. GET ASSISTANCE. As a Cav’s season ticket holder, I can tell you this: As good as LeBron is, he still needs 4 other guys on the court at all times providing him assistance in order to win a game. You don’t have to feel like you need to do it all on your own. Our mentoring and case support services can help you with your Medicaid planning cases in a cost-effective way.

For more information about mentoring services: click here

For more information about case support services: click here

  1. JUST DON’T DO IT. If you’re in the senior market as an estate planning attorney or financial advisor and you don’t want to do anything I’ve recommended here, then just get out. Go find some other way to make a living that doesn’t jeopardize your clients and their financial security. And that’ll be the best first step to avoiding jeopardizing your own licenses and your own ability to make a living. And you can easily avoid me writing another article like this making you the poster child for advisors who were too dense to get it right.

For more information about why you should quit while you’re ahead: click here to download the Laux opinion (Office of Lawyer Regulation v. Sarah E. K. Laux, Case 2014AP974-D, June 24, 2015)

 

Whatever you decide to do, don’t be a “Laux” advisor.

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Florida Supreme Court Goes After the Unauthorized Practice of Law

Florida Supreme Court Goes After the Unauthorized Practice of Law

The Florida Supreme Court (SC) just came out with an Advisory Opinion that is a must read. To download the 23-page opinion, click on the following link: https://medicaidplanning.org/fl-supreme-court-goes-after-the-unauthorized-practice-of-law.

I’ve been clear on my opinion of non-lawyers charging for advice when it comes to two specific areas of the law:

1) Estate Planning

2) Medicaid Planning

Many insurance agents and financial planners offer to draft living trusts where they not only give advice for a fee on what a client should do, but they actually draft the documents just as though they were attorneys.

Some in the industry call this a trust mill (agents who use estate planning to get clients in the door so they can make a few bucks on the trust document but then also sell the client a product). While there are a few states that allow this, most states frown on it; and now Florida has specifically outlawed it (I wouldn’t want to run a trust mill in FL now).

Medicaid Planning Prohibition

Besides the traditional trust-mill concept, many financial planners and insurance agents are charging a fee to give advice on “Medicaid Planning.” For those of you who are not familiar with “Medicaid Planning,” I suggest you go to www.medicaidplanning.org where you can read all about it.

Essentially, “Medicaid Planning” is when you help a senior client shift assets in order to quickly or even immediately qualify for financial aid for nursing home care. Anyone giving advice to clients over the age of 55 (fee-for-service or not) should learn “Medicaid Planning” (if you don’t, you are a lawsuit waiting to happen).

This subject is near and dear to my heart because The Wealth Preservation Institute has the only “Accredited” Medicaid Designation in any industry (legal, accounting, financial services, etc.). If you are not familiar with the Certified Medicaid Planner™ (CMP™) designation, you can learn more by going to www.cmpboard.org.

The Florida SC Advisory opinion specifically identified three services that non-attorneys will no longer be able to charge clients for.

1) Personal Service Contract (PSC). This is where you pay (as an exempt expense) typically a family member to help you with certain daily activities.

In many states, it’s commonplace for non-attorneys to charge a fee to draft a PSC.  In my mind, this has always been “legal work” and now the Florida SC agrees.

2) Non-attorneys are no longer able to prepare and execute Qualified Income Trusts (QIT) (a/k/a Miller Trusts). A QIT is used to shift what would be countable income for aid calculation.

3) Non-attorneys will no longer be able to render advice regarding the implementation of Florida law to obtain Medicaid benefits.

This is a big deal–because clients can use life insurance and Medicaid compliant annuities as tools to quickly or even immediately qualify for financial aid, there are thousands of insurance agents who tout that they can help clients with “Medicaid Planning.”

Of the thousands, many of them charge fees (flat fees or hourly fees) to give advice to clients on “Medicaid Planning” and/or charge them to set up QITs and/or PSCs.

The state of Florida says no more!

Will other states follow Florida when it comes to a formal prohibition on non-lawyers charging for advice for “Medicaid Planning” services?  I would think so, but only time will tell.

Selling Products–keep in mind that this prohibition focuses on charging for services.  We do not think there is anything wrong with an insurance agent selling a client a funeral trust policy or a Medicaid compliant annuity. Just don’t charge a fee for giving advice. Save that for the attorneys.