Unlicensed Practice of Law in Medicaid Planning: A Radio Interview of Attorney John R. Frazier by Attorney Joseph Pippen
Attorney Pippen:
Good morning, John Frazier. He’s our Medicaid VA attorney.
Attorney Frazier:
Hey Joe, how are you doing today?
Attorney Pippen:
I’m doing great. And you?
Attorney Frazier:
Doing great.
Attorney Pippen:
John calls with his Medicaid or VA planning tip of the week. So what are we talking about today, John?
Attorney Frazier:
Last week, you had mentioned that you had a client who was referred to a non-attorney for a Medicaid case. So today, I was going to talk about the unlicensed practice of law in Medicaid planning here in Florida. This is a very significant issue here in Florida. There are probably hundreds of these non-attorney Medicaid planning companies in Florida. Certainly, not all of them are doing anything wrong, but there are significant limits on what these non-attorneys can do.
So I wanted to talk a little bit about what the unlicensed practice of law is, also known as UPL. Here in the state of Florida we have a statute, which says that the unlicensed practice of law is a third-degree felony punishable by up to five years in prison and a maximum fine of $5,000. This is a very significant issue that we need to be concerned about.
Some examples of some of these non-attorney Medicaid planners that I’ve heard about over the years. Certainly, not all of them fall into this category, but these individuals are unlicensed, they’re unregulated, they’re largely untrained, and they’re also uninsured because by definition they can’t have legal malpractice insurance because they’re not attorneys. Some examples that I’ve seen over the past 10 or 15 years. We have an individual here in the Tampa Bay area who was previously an insurance agent, was convicted of insurance fraud, had two felony convictions, lost his insurance license. He’s a non-attorney Medicaid planner.
There’s an individual also in the Tampa Bay area whose been permanently barred from the securities industry by FINRA, which is the licensing agency for stockbrokers. Permanently barred for the fraudulent sale of securities to elderly individuals. There was a disbarred attorney who was a non-attorney Medicaid planner. I’m aware of some individuals who also have been permanently barred from the securities industry by the State of Florida.
So basically anybody can hang out a sign and say that they’re a non-attorney Medicaid planner. Also, a number of these groups have gone out and developed contracts with nursing facility chains to do their Medicaid applications, and there’s absolutely nothing wrong with that. It’s fine for anybody to file a Medicaid application, but the problem arises when these individuals allegedly engage in the practice of law.
So in around 2010, I had requested that the Florida Bar petition the Florida Supreme Court for something called an advisory opinion. In my request, I had three simple requests: that non-attorneys should not be able to give legal advice, which is fairly obvious, they should not be able to prepare personal services contracts, and they should not be able to prepare qualified income trusts. It took about five years from that point forward. Ultimately, the Florida Supreme Court did approve the advisory opinion.
Then it was actually subsequently challenged all the way up to the United States Supreme Court. The United States Supreme Court refused to hear the case. So the opinion stands as of around 2015. So we’ve got some fairly significant guidance on this issue from both the Florida Bar and the Florida Supreme Court.
I did have one very current example. It’s not in the Medicaid planning context, but it’s in the immigration law context. Just this month, there was an individual … This has been all over the news recently. By the name of Elvis Reyes who was actually sentenced to 20 years and nine months in prison. As I had mentioned, the Florida statute has a maximum of five years in prison, but this individual’s behavior was so egregious that he was prosecuted under federal law. He was posing as an immigration attorney, and recruited unsuspecting people from Spanish-speaking countries, and he charged them about $5,000 per case. He submitted approximately 225 fraudulent asylum applications, collected over $400,000 in what were thought to be attorney’s fees, but he was not an attorney, so they were not attorney’s fees. He subsequently pled guilty to mail fraud and aggravated identity theft and will be spending the next 20 years in federal prison. So that gives you an example of just how potentially serious this is. So that’s a basic overview of what I know about the unlicensed practice of law in Medicaid Planning in Florida.
Attorney Pippen:
All right, John, we have a question from a caller. Do from Tampa on a Medicaid question. So let’s pull her into the show this morning. Morning, Do.
Good Morning Do:
Good morning. Hi.
Attorney Pippen:
Good morning. What can we do for you?
Doe:
Hi, I’m 18 and I got my Medicaid insurance, let’s say this January. I was wondering if it cuts off when I turn 19 or will it continue for a year?
Well, as a general rule, I don’t believe that you would lose your benefits just because you celebrate a future birthday. Now, my typical client is going to be 65 or older and in a nursing facility or an assisted living facility. But I can tell you in that context, there are no limitations on age. As long as the person remains in the nursing facility or assisted living facility, they’ll continue to be on Medicaid for the rest of their life.
So I am not familiar with any rules that say that you would lose your Medicaid benefits upon a certain age. The primary consideration is whether or not you’re financially qualified. If your financial circumstances change. Let’s say you inherit $100,000 from a family member, something like that, you have new employment where you have increased income, those would be changes that you would have to report to the Florida Department of Children and Families and could adversely impact your Medicaid benefits.
Doe:
Okay. That helps. Thank you so much.
Attorney Pippen:
All right.
Attorney Frazier:
Okay. Thank you.
Attorney Pippen:
All right, John, you were honored by the Florida Bar for your work in the Medicaid issue field about unpracticed practice law issues, right? So tell us a little bit about that.
Attorney Frazier:
Yes. I’ve been the chair or the co-chair of the Unlicensed Practice of Law Committee for over 10 years now. As I had mentioned, it took about five years to get the Florida Bar to move forward on this. It was not an easy process. We had two hearings. In the first hearing with the Florida Bar, it actually was with the Florida Bar Standing Committee for the Unlicensed Practice of Law, which is part of the Florida Bar. They decided to table my request for future consideration.
Then the second time around, we were able to have attorneys around the State of Florida share their stories with the Florida Bar, literally hundreds of circumstances where non-attorneys had injured, allegedly injured, clients and allegedly engaged in the unlicensed practice of law. The hearing was held in Tampa. Bay News 9, the Tampa Bay Times were present. Shortly after the hearing, the Florida Bar decided to move forward with the petition to the Florida Supreme Court. And then ultimately the Florida Supreme Court approved it. And then ultimately the United States Supreme Court declined to hear a case filed by a stockbroker by the name of William Burns up in north Florida. So the advisory opinion stands as it was issued in 2015.
Attorney Pippen:
Now, one of the most shocking things that our listeners are going to learn from this whole conversation you and I are having, they haven’t heard yet. So here’s what I think it is. We’ve experienced many nursing homes who refer their potential clients to these people who are practicing unauthorized practice of law. They’re on their referral list of people that they recommend customers go see to get Medicaid applications. We’ve seen this numerous times. You can go in a nursing home and there are brochures of these unlicensed practice law people on their tables and literature for them to pick up. Social directors and people, there’s some nursing homes, not all of course, but just want to make people aware that some nursing homes are not aware of the circumstances of who can do these cases. Somebody who has fancy brochures and fancy business cards and say they can help you with Medicaid planning and they’re not attorneys, some of those people fall into these, these categories. Isn’t that correct?
Attorney Frazier:
Oh absolutely. I would say most of these individuals actually have a background in sales. Many of these individuals, as I’d mentioned, a former insurance salesperson, former security sales person. These people are primarily trained in sales. I would say certainly attorneys are not primarily trained in sales. So these people are very, very good at selling themselves. I’m not aware of any circumstances where these nursing facilities are doing background checks and finding out about these felony convictions, loss of professional licenses, things like that. So I think it does represent liability for these nursing facilities if they’re referring legal work to non-attorneys, especially if these individuals have a very checkered background, felony convictions, loss of professional licenses.
Attorney Pippen:
Yeah. And we’ve also seen, John, the public should know, that we’ve seen attorneys get in trouble for working with these people. Aiding and abetting them in the unauthorized practice of law and being on their team to help them do cases. We’ve seen some attorneys that we have known in local area get in trouble for this, right?
Attorney Frazier:
Oh yes. There was an attorney in Sarasota who was actually disbarred. He was working with two non-attorney Medicaid planning companies, one of which was owned by his brother. Ultimately disbarred by the Florida Supreme Court. Actually very recently, there was an attorney down in Miami suspended for 45 days. Again, the same thing. Working with a non-attorney Medicaid planner. The allegations are that some of these attorneys basically just hand these cases off to the non-attorneys, don’t review anything, allegedly don’t communicate with the client and just collect a fee, and that can lead to very significant damage to some of these clients.
In one particular case that the attorney who was disbarred. Very familiar with this fact pattern. One of the things that happened was a personal services contract was recommended apparently by the non-attorney. That was executed. It subsequently turned out that the person who was paid, one of the children, was classified as disabled under Social Security and was unable to actually perform any services. Also, because the person was disabled, there are different rules for transfer of assets to an adult disabled child. So it was not necessary to actually even pay the child where he would have to pay income taxes and that potentially could have an impact on his Social Security disability benefits. Apparently, the attorney did not know any of this and allowed the non-attorney to take the reins in the case. The family was injured by this unlicensed practice of law in Medicaid planning. The family filed a complaint with the Florida Bar, and subsequently, the attorney was disbarred for that sort of lack of action and lack of communication with the client.
Attorney Pippen:
All right, John, we’re down at the bottom of the hour for a mandatory break here. Give everyone your contact information on how they can reach you for further information or if they need help in this Medicaid area.
Attorney Frazier:
The office number is (727) 586-3306, extension 104. My cell phone is (727) 748-5374. My email address is John, J-O-H-N@attypip.com.
Attorney Pippen:
All right, John, thanks so much for calling in this morning.
Attorney Frazier:
All right. Have a great Sunday.
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