Court OKs Medicaid planning UPL opinion Court OKs Medicaid planning UPL opinion March 1, 2015 Regular News The Florida Supreme Court has approved a proposed unauthorized practice of law opinion restricting what nonlawyers can do in assisting the elderly in Medicaid planning activities.The opinion was submitted to the court by the Bar’s Standing Committee on the Unlicensed Practice of Law, which was approached by the UPL Subcommittee of the Bar’s Elder Law Section.The section and standing committee were concerned that the public is being harmed when nonlawyers help the elderly arrange their finances so that they qualify for Medicaid benefits.The court’s January 15 ruling noted that the standing committee had filed a proposed opinion and the court considered briefs supporting and opposing it, and then ordered the committee to revise the opinion to clarify activities of nonlawyer staff of the Florida Department of Children and Families who help the public in the Medicaid application process.“The revised proposed advisory opinion is hereby approved and is set forth in the appendix to this opinion,” the court said in its ruling. “As provided in Rule Regulating The Florida Bar 10-9.1(g)(4), the advisory opinion shall have the force and effect of an order of this court and shall be published accordingly.”The committee’s report found that Medicaid planners are unregulated and among those holding themselves out as experts were a disbarred Florida lawyer, a former securities broker who lost his license for fraudulent practice, and a life insurance agent who lost his license after being convicted of two felonies.Among the harm it found was “denial of Medicaid eligibility, exploitation, catastrophic or severe tax liability, and the purchase of inappropriate financial products threatening or destroying clients’ life savings.”The standing committee’s opinion noted it was asked to address three specific activities where nonlawyers had been assisting the public in seeking Medicaid benefits: “(1) drafting of personal service contracts; (2) preparation and execution of qualified income trusts; or (3) rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits.”The opinion found that a personal service contract, frequently between the Medicaid applicant and an adult child allows the applicant to spend assets that would otherwise be countable in determining Medicaid applicability and also allows for providing for services not typically provided under Medicaid in nursing homes or assisted living facilities.“There are both legal and tax ramifications if a personal service contract is not done properly,” the opinion said, citing examples where people had faced extra expenses, tax liabilities, loss of services, or possible legal charges because of improperly prepared contracts.The committee noted that drafting a contract is the practice of law and that “testimony demonstrates that the improper drafting of a personal service contract and improper tax advice and planning causes public harm.” Hence it concluded that “a nonlawyer’s drafting of a personal service contract constitutes the unlicensed practice of law.”Qualified income trusts and related checking accounts are needed if a Medicaid applicant’s monthly income exceeds Medicaid standards and if the trust is improperly prepared, the applicant will be harmed, the opinion said. It noted several examples of testimony where trusts improperly set up by nonlawyers harmed people. It also cited an earlier UPL opinion from the court which held that the “assembly, drafting, execution, and funding of a living trust constitutes the practice of law, as does determining the need for a living trust and identifying the type of living trust most appropriate for the client.“The same would be true for a Qualified Income Trust,” the opinion said, adding that means only lawyers can perform those functions.On advising on Florida law to obtain Medicaid benefits, the opinion said the area is complex with federal and state laws and regulation totaling “over 3,000 pages.”“Medicaid planning involves: (1) the assessment of all facts relevant to a client’s situation, including personal, financial, familial, and historical; (2) application of those particular facts to the laws governing Medicaid; (3) developing a plan to structure or spend those assets in compliance with those laws or planning to reverse actions already taken to correct potentially unauthorized activity to minimize negative legal consequences; (4) drafting legal documents to execute the plan; and (5) assisting the client in correctly executing a particular plan,” the opinion said. It can also be complicated when one spouse is seeking Medicaid benefits and the other is not, and that there are a variety of methods to spend down assets and structure finances to qualify someone for Medicaid.Consequently, “It is the opinion of the Standing Committee that when a nonlawyer engages in these activities or renders legal advice regarding the implementation of Florida law to obtain Medicaid benefits the nonlawyer is engaged in the unlicensed practice of law. This includes advising an individual on which legal strategy or strategies under federal or Florida law are appropriate given the individual’s factual circumstances.”The opinion said that some nonlawyer companies claim to have relationships with attorneys who do will actually document preparation, but added that is still not allowed.“It is the opinion of the Standing Committee that unless the client establishes an independent attorney-client relationship with the attorney, payment from the client is directly to the attorney, and the initial determination that the particular legal document or Medicaid planning strategy is appropriate for the client given the client’s particular factual circumstances is the determination of the attorney, then the company would be engaged in the unlicensed practice of law.”Beyond the direct provision of services, the standing committee also found that “the use of legal kits and forms” should be barred because of the complexity of Medicaid planning and the resulting harm from improperly filled out forms, and the ease with which such forms could be offered over the Internet.The committee did find that the preparation of the actual Medicaid application is not UPL because federal law specifically allows nonlawyers to perform that task.The court acted in The Florida Bar Re: Advisory Opinion – Medicaid Planning Activities by Nonlawyers, case no. SC 14-211.
Raytheon has received a contract worth $406 million from the U.S. Army for the ARC-231A radio system. The ARC-231A is a fully compliant, high performance, fully qualified, low risk solution for any airborne platform. The contract, which will be executed over the next five years, includes upgrades, production and support for up to 5,000 radios. Because the ARC-231A is software-defined, it can accommodate rapid upgrades without requiring the radio to be removed from its platform. The latest version of the system recently gained NSA Type 1 certification and delivers secure, classified communications on the battlefield.The AN/ARC-231 is an Airborne VHF/UHF/LOS and SATCOM Communications System. This system supports Department of Defense (DoD) requirements for airborne, multi-band, multi-mission, secure anti-jam voice, data and imagery transmission and provides network-capable communications in a compact radio set. The ARC-231 Radio System is fully qualified to appropriate Military Standards (MIL-STD) through Environmental, Reliability, Electromagnetic interference (EMI)/ Electromagnetic compatibility (EMC) and Joint Interoperability Test Command (JITC) testing that ensures interoperability across the tactical environment and is Air-Worthiness certified.The Radio System operates from 30 to 512 MHz, AM/FM Very High Frequency (VHF), Ultra High Frequency (UHF) Line-of-Sight (LOS) with frequency agile modes Electronic counter-countermeasures (ECCM), UHF Satellite Communications (SATCOM), Demand Assigned Multiple Access (DAMA), Integrated Waveform (IW), Air Traffic Control (ATC) channel spacing is operator selectable in 5, 8.33, 12.5, and 25kHz steps. Standard Ship-to-Shore Maritime operation is also available.According to Barbara Borgonovi, VP of Raytheon Integrated Communication Systems, these radios are the backbone of rotary-wing communications. It enables U.S. forces to maintain the edge in secure communications, whether they’re flying in contested or congested environments. The new radios will be installed on a variety of Army platforms, including the UH-60 Black Hawk, UH-72 Lakota utility helicopter and the AH-64 Apache attack helicopter.
Jamaica’s swimmers got off to a difficult start as the FINA World Championships continued from the Nambu International Aquatics Centre in Gwangju, South Korea, yesterday.Olympian and national record holder Alia Atkinson failed to advance to the final of the 100m Breaststroke after finishing tied for fifth in her semi-final along with Switzerland’s Lisa Mamie with a time of 1:07:11 seconds. Atkinson, who finished third in the event in 2015 in Kazan and is the defending short-course champion, was outdone by a fast second semi-final in which five swimmers qualified with times of 1:06 seconds or better. Olympic and World champion Lily King from the United States headlines this morning’s final along with Russia’s Yuliya Yefimova.King is the favourite for the event and is seeking to join Luo Xuejuan of China, Leisel Jones of Australia; and countrywoman Rebecca Soni as the only women who have won titles at successive World Championships. Should either King or Yefimova win, they could join those same women as those who have won two world titles at the event. Atkinson returns to the pool on Saturday to compete in the 50m breaststroke. England-born Michael Gunning finished third in Heat Six of the 200m Freestyle event, but his time of 1:51:14 was not fast enough to qualify in the top 16 for the semi-finals. Alexi Sancov of Moldova won the heat in 1:48.60, but his time was not fast enough either to qualify for the semi-finals as the top 16 posted times of 1:47.06 or better.The reigning world champion, Sun Yang of China, advanced comfortably to today’s final looking to join Germany’s Michael Groß (1982, 1986), Australia’s Ian Thorpe (2001, 2003), and swimming legend Michael Phelps of the United States (2005, 2007) as the only men to have won multiple world titles at the event and to have won at three consecutive major championships. Sun Yang won gold at the event in the 2016 Olympic Games in Rio and the 2017 World Championships in Budapest. Gunning will have an opportunity to improve his performance as he will compete in his pet event – the 200m Butterfly, which will get under way tonight local time. Fellow Jamaican Keanan Dols will make his senior championship debut tonight in the preliminaries of the 200m Individual Medley (IM) event and will also compete in the 100m Butterfly on Friday. Chase Kalisz of the United States is the defending World Champion in the 200m IM with a life-time best time of 1:55:40 seconds.Meanwhile, President of the Aquatic Sports Association of Jamaica Martin Lyn, who has been in contact with the University of Pennsylvania athlete, said that Dols is eagerly awaiting his chance to prove himself on the big stage.“He is very excited. I think the IM will be a challenging one for him, but the good thing is that he definitely has the times to be there, and he will come out to prove a point. He is pumped up and pleased to represent Jamaica at this high level,” said Lyn.