Certified Medicaid Planner™ (CMP™) Governing Board’s Position on the Unauthorized Practice of Law (UPL)
The field of Medicaid Planning involves professionals from various disciplines (i.e., attorneys, financial planners, funeral home directors, social workers, paid application preparers, etc.). The Unauthorized Practice of Law (“UPL”) is an issue that a few states are dealing with when it comes to Medicaid Planning.
As a rule, non-attorneys cannot practice law. The practice of law is generally defined as a licensed attorney providing legal advice for a fee to a client.
The UPL issue has been elevated in a few states when it comes to the issue of Medicaid Planning. Ohio, Florida, and New Jersey seem to be leading the charge to have any advice given by any individual deemed legal advice when it comes to the subject of Medicaid Planning. And the state of Texas has a rule which prohibits non-attorneys from charging fees for assisting with the Medicaid eligibility process.
Federal law allows non-attorneys to help consumers fill out applications for Medicaid and there is no express prohibition to charge a fee for this help. Florida and New Jersey’s advisory opinions seem to indicate that any advice or assistance with the rearrangement of assets to gain Medicaid approval is the practice of law. While the CMP™ Board does not agree with this, until there is further federal guidance on this subject, non-attorneys in Florida and New Jersey should avoid providing any advice regarding Medicaid eligibility expressly prohibited by those states’ UPL advisory opinions. And while not quite a strict, non-attorneys in Ohio should closely follow the prohibitions contained in the Ohio UPL advisory opinion.
As a rule, the CMP™ Board DOES NOT advocate that non-attorneys charge a fee for Medicaid Planning advice. Any CMP™ who is a non-attorney should NOT give Medicaid Planning advice in the states of Florida, Ohio, and New Jersey consistent with the above-referenced advisory opinions concerning the same. While other states seem to allow or have at least not barred the ability of a non-attorney to charge for advice on Medicaid Planning, we believe that charging for such advice should be avoided. The holding of a CMP™ designation does not give a Certificant license to exceed the state rules or perform functions exclusively reserved to licensed professionals from a different profession.
Lastly, in all states, we encourage all non-attorney CMP™ Certificants to work with a CMP™ Certificant who is licensed to practice law. We encourage the mutual cooperation and mutual respect of all disciplines involved in the long-term care Medicaid eligibility process. Our primary goal is to help consumers work with knowledgeable professionals in the field of long-term care Medicaid eligibility and help guide those professionals to stay within the ever-confusing confines of state and federal rules. Should you have any concern about this, please feel free to email [email protected] for additional guidance or clarification.