SELECTING AN ATTORNEY FOR MEDICAID or MEDI-CAL PLANNING

A member of the National Academy of Elder Law Attorneys

Medi-Cal is California’s version of the federal Medicaid program. The “Long-Term” Medi-Cal program assists people in paying for long-term skilled nursing home placements.

At speaking engagements and social events, people often approach me with questions such as: "How can I find a good elder law attorney to help me plan for long-term nursing care?" or, "Can any attorney who does estate planning help me prepare for possible Medi-Cal problems in the future?" Other times I get comments such as: "I have a good attorney whom I like very much. He helped me (when I bought my house/when I had an accident/when I got divorced/when my daughter was being evicted), but I don’t know if he really knows anything about Long-Term Medi-Cal."

The biggest problem in identifying a competent attorney to assist in long-term Medi-Cal planning is the misuse of the term "elder law." In reality, older people have the same legal problems that everyone else has with consumer complaints, real estate sales transactions, wills, trusts, traffic tickets, and even Medi-Cal planning. The primary difference is one of emphasis and relative importance to the individual of the various issues. I would be very suspicious of any attorney who claims to be an “elder law specialist," without further qualification.

In locating an attorney, you should start with a reliable referral source. One of the best sources is a friend or relative who has used an attorney in connection with concerns similar to yours and has been satisfied with that attorney's performance. Another excellent referral source in the long-term nursing care area is the National Academy of Elder Law Attorneys (“NAELA”). They maintain a website at “www.naela.org” which is searchable by zip code or city. When specific areas of expertise are listed for an attorney on that site, it means that the attorney has demonstrated actual real-life experience in those areas and not simply paid for the membership.

No matter what referral source you use, you must personally interview the attorney and determine not only the attorney's degree of familiarity with the issues which are important to you but also your level of personal comfort with the attorney. If you are intimidated by the attorney or if you find the attorney's approach or mannerisms annoying, you probably will not be able to maintain the kind of open, productive communication you need to make sure that your attorney addresses all of your concerns.

The interpersonal relationship you have with an attorney cannot be objectively measured. It is something that only you can evaluate, based upon your personal experience with the attorney. However, there are a few things you can do to objectively determine whether the attorney knows enough about Long-Term Medi-Cal issues to assist you with your planning needs. First, ask about the attorney's background in public benefits. How did the attorney get involved in the area and what experience does the attorney have in handling administrative appeals of Medi-Cal denials? Next, find out how the attorney stays current with changes in the state and federal laws and regulations relating to Medi-Cal. Attorneys must make a concerted effort to keep current in this changing area of the law if they are to deliver competent advice and services.

Finally, a good way to verify that the attorney is at least somewhat familiar with Long-Term Medi-Cal system is to drop a few "buzz words." These are terms which are used constantly in connection with Medi-Cal eligibility. Some of the most common terms are:

"SHARE OF COST" - The portion of a patient's monthly nursing home bill which must be paid from the patient's income, with Medi-Cal paying the balance of the bill.

"COMMUNITY SPOUSAL RESOURCE ALLOWANCE" (CSRA) - The amount of non-exempt property an at-home spouse may own without disqualifying the other spouse from receiving long-term Medi-Cal benefits. (For 2018, the figure is $123,600.00, which is increasable under certain circumstances.)

"EXEMPT ASSETS" - Assets which are not counted by Medi-Cal in determining 1whether a person qualifies for Medi-Cal benefits. (The principal residence, one automobile, household furniture and furnishings, a burial plot, a prepaid funeral contract (within certain limits) and qualifying annuities are some of the most common exempt assets.)

"MINIMUM MONTHLY MAINTENANCE NEEDS ALLOWANCE" (MMMNA) - The minimum amount of income an "at home" spouse should receive before the patient's share of cost in a nursing home is calculated. (For 2018, the MMMNA is $3,090.00 per month.) The attorney should also advise that this amount can actually be increased using a spousal support order for the healthy “at-home” spouse to cover the at-home spouse’s actual living expenses in excess of $3,090.00.

"AVERAGE PRIVATE PAY RATE" - The average monthly fee charged by skilled nursing facilities in California. The amount used to calculate periods of ineligibility in determining disqualifying gifts made before an application for Medi-Cal. (For 2018 the rate is $8,841.00 per month.)

"LOOK BACK PERIOD" - The period (of time) Medi-Cal will look back to determine if a Medi-Cal applicant has made any disqualifying transfers. (The current look-back period is supposed to be 60 months, although California is looking back only 36 months.)

“D.R.A. RULES” - The Deficit Reduction Act of 2005 was signed into law by former President Bush in 2006 and changed several important rules relating to the Long-Term Medi-Cal program. However, California has failed to enact several of those rules. When the state gets around to adopting the appropriate policies, it will change some of the current Medi-Cal planning options.

If you use any of these terms and the attorney looks at you with a blank stare, you should probably find another attorney. Any attorney familiar with this area of law should be able to explain what each of those terms means and explain how they apply to you, even if the dollar amounts even if the dollar amounts are not committed to his/her memory. (The dollar amounts change every year.)

In selecting an attorney (or a doctor, an accountant, or any professional for that matter,) be a smart consumer. Ask about fees at the beginning and find out what you are going to get in return. Also, do not just turn your fate over to the professionals. Keep yourself informed so that you will know if one of them is dropping the ball. Groups such as PRO, AARP, NAELA, California Advocates for Nursing Home Reform in San Francisco and others are extremely valuable in keeping you informed of recent developments which may affect your life. Demand that the attorney keeps you informed by of any developments in your case and keep your attorney informed of any significant changes in your personal affairs which might impact the work the attorney is performing for you. Think about changing attorneys if the attorney doesn’t want to talk to you. Remember that, although there are a lot of jokes going around about bad attorneys, there are many fine attorneys out there to help you, all you need do is find them!

William R. Remery is a practicing attorney and member of the National Academy of Elder Law Attorneys and a member of the Parkinson's Resource Organization Board of Directors. The Remery Law Firm has been a member of the PRO Wellness Village since its inception.2011.