By Donna Furey, chairperson of the Board of the Catholic Lawyers Guild of Queens

Why should you consult an elder law attorney on Medicaid issues? Many people are reluctant to consult attorneys on legal matters due primarily to inexperience in working with attorneys. This is doubly true with respect to issues related to Medicaid coverage of nursing home care for the following reasons:

• The cost of consulting with an attorney.
• Medicaid eligibility is seen as a non-legal matter that should be straightforward and not require legal assistance.
• Nursing homes often offer to prepare Medicaid applications for residents for no charge at all.
• Discomfort with using a public benefits program.

Let’s discuss each obstacle to legal representation in turn.

Cost

There is no getting around it. Lawyers are expensive. But the bottom line – since that’s what we are talking about here – is that they’re a lot less expensive than nursing homes.

In the New York City area, nursing homes generally charge $12,029 or more a month. Unless your situation is complicated, the legal fees will not approach this figure. If the consultation with the lawyer saves even a month of nursing home fees, the legal costs will be more than justified. At stake can be a lifetime of hard work and savings.

Medicaid as Law

Certainly, public benefits should be available to those who qualify without having to resort to hiring an attorney. Unfortunately, this expectation and the reality of Medicaid rules are far apart. The eligibility requirements are defined in a conflicting set of state and federal laws, regulations, bulletins and practices that make it impossible even for attorneys to fathom unless they specialize in the field.

Your case may be simple and may not require the depth of knowledge needed to plan for a more complicated estate. However, you can’t be sure of that without meeting with a specialist. It is not difficult for a qualified attorney to save the client more than the attorney’s fee.

Free Application Services

Yes, the nursing home provides application assistance at no charge. In addition, in the majority of cases, there is no risk in using these services if you’ve checked it out with an attorney ahead of time. However, there is a great risk to using the nursing home’s services without first consulting an elder law attorney.

We have seen countless examples of incomplete or improper advice leading to significant lost planning opportunities for clients, no matter how well intentioned the advice giver may be.

Rectifying the situation may cost more in legal fees than would have been the case with a proper plan. In any event, the nursing home and the resident’s family often have conflicting interests since their private-pay rates are typically $2,000 a month more than they receive in Medicaid reimbursement.

In other words, every month that a resident pays privately rather than receives Medicaid coverage is additional money going to the nursing home and less preserved for the resident’s spouse and family.

In addition, to the extent that the application raises legal issues, it makes sense to have an elder law attorney prepare the application. This would be the case, for instance, if a trust were involved or if you were seeking an exception to the usual penalties for transferring assets.

Medicaid as Welfare

Medicaid serves a number of different populations, including recipients of Supplemental Security Income (SSI) and Social Security Disability Income (SSDI). When Medicaid was created it was meant to be the main system of paying for long-term care for older Americans. But in the absence of any other program to fill that need, Medicaid has become the nation’s long-term care financing system by default.

Medicaid planning permits nursing home residents to be covered by the program under its rules. Congress can change the rules, and often does. Consulting with an attorney permits seniors and their families to understand the rules as they are and the options available to them. It does not require them to take any particular steps. It can be vital to preserving the financial security of a healthy spouse continuing to live at home.