In The Supreme Court ofFlorida Amended Objections to Proposed Advisory Opinion Case #SC14-211 In The...

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Amended Objections to Proposed Advisory Opinion Case #SC14-211 In The Supreme Court of Florida

In The Supreme Court ofFlorida Reasonsfor Amendment to Opposition ofProposed Advisory Opinion

Case #SC14-211

03/05/2014 "l:

Interested Party: E cn r

om

Turbeville & Platinum Benefit Planning, Inc. EE

Attached is the amended letter to the Supreme Court ofFlorida in opposi tÊhe E:5 Proposed Advisory Opinion. The amendment was necessary to correct typographical errors, clarify arguments, correct minor fact errors and expand on arguments that could not be accomplished and properly delivered in non-electronic format in the extremely short timeframe between the public posting of the Standing Committee's Brief and the deadline for responses.

Since the granting of a motion for leave of court to file an amicus briefcould not be assured, a more streamlined yet substantial letter (as authorized by the Court for non-lawyers) in opposition, was provided to meet the required deadlines. This Interested Party now submits a more refined letter in opposition of the Proposed Advisory Opinion.

Respectfully Submitted

n ony . ur evi e 863.838.5802 cell 800.582.1934 office 863.904.0196 fax Mailing Address: P.O. Box 8087 Lakeland, FL 33802 Office Address: 2920 Drane Field Rd Lakeland, Fl. 33811

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Objections to Proposed Advisory Opinion Case #SC14-211 in The Supreme Court of Florida

March 5, 2014

FILED AND SERVED VIA FEDERAL EXPRESS OVERNIGHTDELIVERY

Florida Supreme Court 500 South Duval Street Tallahassee Florida T C 32399-1925 ó

Case Number: SC14-211 G - 9

THE FLORIDA BAR RE:

ADVISORY OPINION

vs.

MEDICAID APPLICATION SERVICE ACTIVITIES BY NON-LAWYERS

Amended Response to Proposed Advisory Opinion:

Identity and Interest of Interested Party:

Antony L. Turbeville is the President of Platinum Benefit Planning, Inc.

(Platinum) a non-lawyer Medicaid application service company. Mr. Turbeville

holds degrees in Banking and Finance and Business Administration from Troy

State University. Mr. Turbeville earned his Certified Financial Planning

designation in 1996 (currently inactive) and his accreditation as a Veteran's Affairs

Representative from the VA in 2011. Mr. Turbeville's currently inactive securities

licenses, which were earned at various times, include the series 6, 7, 24, & 63; he

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Objections to Proposed Advisory Opinion Case #SC14-211 In The Supreme Court of Florida

was exempted from testing for the Series 65 & 79, although Mr. Turbeville holds

those licenses on an inactive basis as well (appendix A). He also holds an active

Life, Health, & Variable annuity license in the State of Florida (appendix A). In

2006, he was the founding Director of Community Southern Bank in Lakeland, FL

and Chaired the Bank's Board of Directors until June of 2011. Community

Southern Bank is and has been one of the most financially sound small banks in the

State of Florida as evidenced by a Bauer Five Star rating. He founded Brookstone

Securities, Inc., a securities broker/dealer that was closed in 2012 pursuant to a

strategic decision regarding an appeal process explained later and documented in

appendix D. Mr. Turbeville has been a volunteer for many non-profit

organizations including serving on various boards (in some cases in an executive

capacity) and has been the recipient of several service awards for his volunteer

work.

Mr. Turbeville founded Platinum Benefit Planning, Inc. in 2000. Since

entering Medicaid application services in 1996, he has personally and in

conjunction with Platinum Benefit Planning, Inc. successfully completed more

than an estimated 3,000 cases. Mr. Turbeville has attended two multi-day training

seminars since 2000 on Medicaid, has read the Medicaid Planning Handbook;

Avoiding the Medicaid Trap; Medicaid Planning A to Z; the entire Florida

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Department of Children and Families Policy Manual as it relates to Long Term

Care Medicaid (on several different occasions); and has read countless other books

and articles on Medicaid. Mr. Turbeville has held dozens of informal and formal

Medicaid Application and Intake training seminars for nursing homes on both an

individual and corporate level. Many nursing homes rely on his and other

Platinum employees' expertise to help navigate the difficult Medicaid application

process. Approximately 5% of Mr. Turbeville's and Platinum's services are

provided to families on a Pro Bono basis.

The Pro Bono services provided by Platinum and Turbeville is exclusive of

legal document preparation or completion, as Mr. Turbeville and Platinum support

and utilize the services of lawyers in the ultimate determination of the need for,

and the preparation of, legal documents in the Medicaid application service

process, even though neither believes the law requires such attorney services. Both

Mr. Turbeville and Platinum have been wrongfully accused of the Unlicensed

Practice of Law by certain members of the Subcommittee of the Unlicensed

Practice of Law, which members clearly have a conflict of interest (as they

represent, and in some cases are, the very same lawyers who want to drastically

limit the amount of competition they have for Medicaid application service

business.)

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Further, and more alarming, Mr. Turbeville has been either willfully or

negligently misrepresented by the Standing Committee and others as having lost

his license to sell securities, having had his license to sell securities suspended, and

as having "trouble" with the Securities and Exchange Commission (SEC)i (Public

Hearing Testimony of Ms. Sketchley pg. 10 In 15 - 18; Mr. John Frazier pg. 26 In

22 - 24 Appendix B; and letter of testimony from Emna Hemness in Appendix B

of this letter). None of these allegations are correct. Evidence showing that Mr.

Turbeville's license to sell securities, while inactive has not been "lost" or

suspended is included in Appendix D. Proving that Turbeville has no trouble with

the Securities and Exchange Commission is impossible because it is proving a

negative. Rather, the lack of any evidence provided by the Standing Committee

and the Florida Bar regarding any "troubles" with the SEC speaks for itself.

Finally, Turbeville finds it alarming that the Standing Committee can make false

accusations and representations to the Supreme Court of Florida regarding issues

of such weight, which become a matter of public record, with immunity and that

1Neither Brookstone nor Turbeville have had or currently has any issues of any kind with the SEC. Rather, FINRA a Self-Regulatory Organization (SRO) - issued a non-final ruling regarding sanctions against both parties. These sanctions are currently under appeal and are non-binding during the appeal process to the National Adjudicatory Council of FINRA, the first step in a process that can be pursued through as many as three steps to the United States District Court of Appeals where, if not at a lower level tribunal, the decision is expected to be fully vacated based upon the willful misconduct, willful refusal to follow procedure, failure to follow the rules of evidence, and possible fraud, of the FINRA Hearing Panel. Substantial appeal information is provided in Appendix D.

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the Standing Committee has evidently abused that immunity by either willfully or

negligently making these false allegations as statements of fact.

While both Turbeville and Platinum as a corporate entity are supportive of,

and utilize, lawyers in good standing with the Florida Bar in the Medicaid

application service process, both believe the Standing Committee through the

Florida Bar is overstepping its rightful role in its Proposed Advisory Opinion by

ignoring the point of the Sperry decision, which the Standing Committee

frequently quotes but often misapplies.

Introduction:

The Florida Bar's Standing Committee on the Unlicensed Practice of Law

("Standing Committee"), at the request of the Florida Bar's Elder Law Section

UPL Subcommittee, requested an advisory opinion on whether it constitutes the

unlicensed practice of law (hereafter "UPL") for a non-lawyer to engage in the

following Medicaid application service activities leading up to the Medicaid

application: 1) The Drafting of personal services contracts; 2) The preparation and

execution of qualified income trusts; or 3) Rendering legal advice regarding the

implementation ofFlorida law to obtain Medicaid benefits.

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The Standing Committee through the Florida Bar spent much time, effort,

and documentation, both at the public hearing held on February 22, 2013 in

Tampa, Florida, and in its Brief and appendices attempting to demonstrate the

harm being caused by non-lawyers who provide Medicaid application services.

Virtually all of the evidence cited by the Standing Committee is anecdotal and

third party in nature, without any citations to documentation or other direct sources

that would enable independent verification of the alleged facts and circumstances.

Additionally, most of the information cited in support of the proposed advisory

opinion was given to the Standing Committee in the form of letters from lawyers

who themselves provide Medicaid application services and, therefore, have a

vested interest in the outcome of this decision. The information provided appeared

to be intentionally slanted to sensationalize the issue by pointing out the alleged

problem of unlicensed and unsavory characters practicing "Medicaid application

service" business, but makes little effort to set a factual basis upon which a

conclusion can be drawn that limiting or preventing non-lawyers from completing

pre-drafted forms, and developing an asset spend-down strategy, would protect the

public from the unlicensed practice of law.

The Standing Committee also spent much time speculating about the reason

there are very few known complaints from recipients of Medicaid application

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services regarding the activity on non-lawyer Medicaid application services.

Lawyer John Frazier in his public hearing testimony states, "Oh, there's no

question about it. I think fear of retribution, certainly is one of the big reasons."...

(Page 35, In 9-11 exhibit B). This is mere convenient speculation on his part, as

supported by his statement, "...I think...", but lacking any supporting facts.

Further, no one addresses what the Interested Party believes would be undisputed,

that most applicants have adult children involved in the process who would have

no reason to fear retribution for reasons speculated about in the public hearing

testimony. The Standing Committee further used as part of the anecdotal evidence

certain activities of non-lawyers. The Standing Committee also cited, as evidence

of the dangers of improper Medicaid application services, anecdotal examples that

included assistance in the alleged UPL activity by lawyers who evidently

committed malpractice while assisting in the purported UPL (Appendix G). The

Standing Committee then argued that the Florida Bar could reduce public harm

caused by the non-lawyer Medicaid application services by making assistance from

lawyers mandatory through the requested UPL guidance. This begs the question: if

the Florida Bar failed at preventing harm caused by lawyers that negligently

assisted in Medicaid application services, then how will the Bar better regulate

lawyers who are involved in assisting Medicaid application services if the Florida

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Bar is successful in obtaining its goal of restricting Medicaid application service to

only the gathering of asset information and completion of the application itself,

thereby requiring the assistance of lawyers that must play the same or a similar role

as those attorneys that negligently aided non-lawyers prior to the requested

advisory opinion?

Finally, the information provided by the Standing Committee in support of

its proposed advisory opinion is materially misleading and misrepresents facts

regarding at least one of the specifically identified, and allegedly unsavory, non-

lawyer who participates in a Medicaid application services business. Specifically,

the Standing Committee represents that Antony L. Turbeville has (i) lost his

licenses to sell securities, (ii) that his licenses to sell securities were suspended, and

(iii)"trouble" with the Securities and Exchange Commission (Appendix E). None

of these allegations are correct. The inclusion of these items as evidence in support

of the Standing Committee's proposed advisory opinion should draw the strictest

scrutiny by the Court to the validity and materiality of all of the "evidence" offered

in conjunction with the Standing Committee's request. Further, to the extent

possible under the law, this Interested Party requests that the Court order the record

stricken regarding all statements against the Interested Party that are not directly

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related to the alleged UPL, in light of the falsity of the statements that is evidenced

in appendix D.

Stipulations and Statement of Dispute

The Interested Party stipulates to the following:

The drafting ofa Personal Services Contract ("PSC") is the Practice ofLaw

The preparation ofa Qualified Income Trust ("QIT") is the Practice ofLaw

The rendering of legal advice regarding the implementation ofFlorida Law

to obtain Medicaid benefìts is the Practice ofLaw.

Giving Advice Regarding and Gathering Information Necessary to Complete a

Qualified Income Trust is Not The Unlicensed Practice of Law

This Interested Party disagrees with the Standing Committee's conclusions

that it is the UPL for a non-lawyer to: (i) advise clients about the purpose and use

of a QIT; (ii) gather information necessary for the preparation of a QIT, execute a

QIT, instruct regarding the funding of a QIT, or other Medicaid accepted form or

document; (iii) advise applicants regarding available strategies for spending down

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or restructuring assets to qualify for Medicaid benefits.

This Interested Party believes that the Standing Committee substantially

overreaches and attempts to create an overbroad definition of the UPL when it

creates a restriction on non-lawyers' rights to advise Medicaid applicants regarding

the need for a qualified income trust ("QIT") or to collect information necessary

for the preparation, execution or funding of a QIT. As the Court noted in Sperry,

"Florida may not prohibit petitioner from performing within the State tasks

which are incident to the preparation and prosecution of patent applications

before the Patent Office." The Court, in Sperry, said we do not question the

determination that, under Florida law, the preparation and prosecution of

patent applications for others constitutes the practice of law. Greenough v.

Tax Assessors, 331 U. S. 486; Murdock v. Memphis, 20 Wall. 590. Such

conduct inevitably requires the practitioner to consider and advise his clients

as to the patentability of their inventions under the statutory criteria, 35

U.S.C. §§ 101-103, 161, 171, as well as to consider the advisability of

relying upon alternative forms of protection which may be available under

statute law. It also involves his participation in the drafting of the

specification and claims of the patent application, 35 U.S.C. § 112, which

this Court long ago noted "constitute[s] one of the most difficult legal

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instruments to draw with accuracy," Tophffv. Tophff: 145 U. S. 156, 145 U.

S. 171. And, upon rejection of the application, the practitioner may also

assist in the preparation of amendments, 37 CFR §§ 1.117-1.126, which

frequently requires written argument to establish the patentability of the

claimed invention under the applicable rules of law and in light of the prior

art. 37 CFR § 1.119. Nor do we doubt that Florida has a substantial interest

in regulating the practice of law within the State, and that, in the absence of

federal legislation, it could validly prohibit non-lawyers from engaging in

this circumscribed form ofpatent practice.

But "the law of the State, though enacted in the exercise of powers not

controverted, must yield" when incompatible with federal legislation.

Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 211. Congress has provided that the

Commissioner of Patents "may prescribe regulations governing the

recognition and conduct of agents, attorneys, or other persons representing

applicants or other parties before the Patent Office," 35 U.S.C. § 31,

[Footnote 3] and the Commissioner, pursuant to § 31, has provided by

regulation that "[a]n applicant for patent . . . may be represented by an

attorney or agent authorized to practice before the Patent Office in patent

cases."

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While the Sperry case applied to the preparation and prosecution of patent

applications, as with Medicaid application filings, there was a specific federal law

authorizing non-lawyers to prepare and assist applicants with the filing of

necessary applications. In order to adequately advise and assist potential Medicaid

applicants with the preparation and submission of Medicaid applications, the

advisor should have a level of competency and understanding of the rules and

regulations governing qualification and should be allowed to use that knowledge.

This Interested Party believes that a non-lawyer is entitled to determine that a QIT

is necessary for a particular applicant and to represent to the applicant that the non-

lawyer has gathered all of the information necessary for a QIT. This Interested

Party believes that any limitation on a non-lawyer's ability to discuss the use and

purpose of a QIT would substantially impair the non-lawyer's ability to perform a

task incident to completing a successful Medicaid application. Further, much of

the information necessary to complete a QIT is the very information necessary for

completing a Medicaid application. Therefore, a restriction on a non-lawyer's

rights to gather information necessary for a QIT would not only impede the non

lawyer's ability to perform a task which is incident to completing a successful

Medicaid application, but would impede the non-lawyer's ability to complete the

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very application that the Standing Committee concedes is authorized under federal

law.

In the Standing Committee's Proposed Advisory Opinion (First paragraph

Page 11) the Standing Committee states,

"Consequently, it is the opinion of the Standing Committee that a non

lawyer's preparation, execution, funding of, and determining the need for a

Qualified Income Trust constitutes the unlicensed practice of law. This

includes the gathering of information for the Qualified Income Trust."

The Standing Committee acknowledges that the non-lawyer's preparation of

the application (i.e. filling in the blanks) for Medicaid and the gathering of non-

income information required in connection with the completion of the application

is permitted under the Act. However, the Standing Committee also takes the

position that anything beyond those actions crosses into the arena of UPL (page 10

footnote 4 of Proposed Advisory Opinion). Specifically, the Standing

Committee's position regarding QITs indicates that gathering income information

may itself be UPL. The Standing Committee's proposed restriction suggests that

any non-lawyer who helps an applicant gather information regarding income and

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reaches a conclusion that the gross income of the applicant appears to exceed the

Income Cap imposed by Medicaid would have unwittingly engaged in UPL

because the excess income information was only discovered in the process of

assisting the applicant in completing the application. This discovery would occur

even though the assister was not gathering information for a Qualified Income

Trust. Further, the limitations recommended by the Standing Committee would put

the non-lawyer in the position of needing to advise the applicant to consult with a

lawyer prior to completing the application, but being unable to inform the applicant

or the lawyer as to why the lawyer's involvement is necessary. Under the

Proposed Advisory Opinion providing such information would be engaging in the

UPL. Such "Catch 22" limitations on non-lawyers would make the entire

application process ludicrous and would invite violations out of compassion for the

applicant who is caught in an unreasonable web of technicalities.

The Standing Committee's position on advising applicants about QITs and

gathering information necessary for a QIT is illogical for the following, additional

reasons:

a) A QIT, while a legal document, is always inevitable and incident to

successfully completing and prosecuting a Medicaid application when the

applicant has gross countable income in excess of the Income Cap. The

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Standing Committee admits that non-lawyers are authorized to assist with

the preparation and submission of a Medicaid application under Federal

Law, so its conclusion that non-lawyers should be restricted from

advising applicants about QIT's inconsistently implies that Congress

intended to authorize such assistance even though the completed

application would be doomed to failure when countable gross income

exceeds applicable limits. Such a position would serve to harm the

applicant, who would remain disqualified from Medicaid assistance,

rather than provide a greater pool ofpotential service providers from

which applicants could seek assistance, which has been a common and

consistent goal of congress in federal programs.

b) The QIT is only useful to artificially reduce income for the purpose of

qualifying for Institutional Medicaid benefits. It is a "must-have"

document when countable gross income exceeds the Medicaid limit

because there is no alternative. There is no legal analysis required to

determine the need for a QIT. It is as simple as (i) certain income is

counted and certain income is not, and (ii) if the gross countable income

is more than the limit, then a QIT is needed for qualification. Those are

the straightforward requirements of Florida's Department of Children and

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Families (DCF) which advises on its website during the completion of an

application for Medicaid, when and why a QIT is needed, the purpose of

a QIT, and how to fund a QIT and DCF must provide the information

under Federal law to non-lawyer applicants, lawyer assisters, and non-

lawyer assisters alike. A link cannot be provided to the instructional

DCF webpage, as it is only available during the application process. A

printout of the disclosure is provided (Exhibit E).

Should the Court adopt this advisory opinion as presented by the

Standing Committee, the danger and costs to consumers will likely increase

substantially as any non-lawyer will rightfully fear that adequately assisting

an applicant, as was intended by Congress, with the completion and

prosecution of a Medicaid application might result in criminal charges. For

all of the reasons set forth above, the proposed restrictions on advising

applicants about and gathering information useful in the preparation of a

QIT is unnecessary, overbroad and likely a violation of Federal Law and this

Court's ruling in Sperry.

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Rendering Legal advice regarding the implementation of Florida law to obtain

Medicaid benefits

In the Standing Committee's Proposed Advisory Opinion (2"d paragraph of

page 19 exhibit C) the Standing Committee states:

"It is also the opinion of the Standing Committee that it constitutes the

unlicensed practice of law for a non-lawyer to render legal advice

regarding the implementation of Florida law to obtain Medicaid benefits.

This includes advising an individual on the appropriate legal strategies

available for spending down and restructuring assets and the need for a

personal service contract or Qualified Income Trust."

While this Interested Party is clearly not a lawyer and certainly may be

missing the actual point of the Sperry decision, it seems that the scenarios

explained, and the cases cited and used by the Standing Committee when

supporting its position to the Court are simply not relevant because unlike

Medicaid applications, there is no Federal law authorizing any of the activities in

the cases referenced and used as examples by the Standing Committee. The fact

that the cases and activities cited do not provide any Federal authority authorizing

the activity is at the heart of the issue now before this Court. Medicaid application

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�042assistance is authorized by Federal law, and attempting to confine that assistance to

simple information gathering and "fill in the blank" activities is clearly outside of

Congress's intent. Congress could have easily clarified and limited the assistance

if it so wished. The language is written in the broadest possible terms to allow as

much access to the public assistance as possible. What is currently before this

Court is an attempt at making an "end run" around the intentions of Congress.

Advising Applicants Regarding Medicaid Accepted Strategies

�042Janet Reno, in her 1998 letter to Newt Gingrich regarding the criminality of the referenced law, dubbed the "Granny Goes To Jail" law, said the following

"Dear Mr. Speaker: ...........

This is to respectfully inform you that, after close and careful scrutiny ofthe matter, the Department ofJustice will not defend the constitutionality ofSection 1128B(a)(6) because the counseling prohibition in thatprovision is plainly unconstitutional under the First Amendment and because the assistance prohibition is not severable from the counseling prohibition........

Sincerely,

Janet Reno"

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While the subject of the letter was the criminality of providing advice

regarding asset protection strategies that create an ineligibility period in the

Medicaid Planning process, this section of the letter is directly on point and

material to the issue at hand. The Attorney General of The United States of

America stated, "...After close and careful scrutiny...the assistance prohibition is

not severable from the counseling prohibition...". The reference is in regards to

the assistance that can be provided by a person of the applicant's or beneficiary's

choice in filing an application for Medicaid benefits to pay for nursing home care.

If the U.S. Attorney General cannot separate the assistance from the counseling,

how then can the application assister know when the next piece of counseling

provided to the applicant crosses the line into the UPL if the court determines any

part of the process is the UPL? Further, how will the Court sever the assistance

process from the counsel process? If the court cannot sever the two, then activities

incident to the Medicaid application must be the authorized practice of law under

Federal law. From a practical standpoint, any Advisory Opinion from the Court

that attempts to define what part of the application assistance process is

"authorized" and therefore not UPL, and what part, if any, is not authorized and

therefore is UPL, creates a non-resolvable conflict, turning on the smallest of

distinctions between non-lawyer application companies and lawyers providing

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•042 Such a determination is destined to result in an inconsistentapplication counsel.

application of the law.

A myriad of Federal agencies allow non-lawyer practitioners to practice

before them. Just a few notable ones include the IRS, the Social Security

Administration, the Veteran's Administration, the Department of Labor, and the

Federal Patent Office. The roles of these non-lawyer representatives have never

been limited to just inserting information given by applicants into the forms

provided by the agencies. Each of these agencies allow capable people to

represent others before them, including oral arguments, drafting pleadings and

other documents for administrative reviews and hearings that require

understanding and analysis of not only the rules of the agency itself, but also the

rules, regulations, and laws of other agencies, states and in some circumstances,

countries that intertwine and tangle with that agency's own rules and regulations.

More notable is the fact that this Court has never determined that non-lawyer

practitioners for those needing assistance with these Federal agencies have

engaged in the UPL. Rather, in the clear decision of Sperry and by the silence of

this Court regarding non-lawyers offering service, when authorized by Congress,

before a myriad of federal agencies since the Sperry decision, makes the message

of Sperry clear.

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•042an example of the difficulty or impossibility of severing the issues ofAs

State control vs. federally authorized activity consider the following: In many

cases the administrative officer that hears appeals of decisions rejecting a Medicaid

application is a non-lawyer. Federal law also allows and the Standing Committee

seems to concede that the non-lawyer application assister is permitted to attend a

Fair Hearing and advocate on behalf of an applicant. For the Standing Committee

to suggest that it is the UPL for a non-lawyer to interpret applicable laws, rules,

and regulations, in order to help an applicant understand the options for properly

structuring assets and income to qualify for Medicaid benefits in the process of

completing a Medicaid application, begs the following question: Does the Standing

Committee propose that only a lawyer can develop and implement an asset

protection strategy for Medicaid application service purposes, but also

acknowledge that upon receiving a denial of benefits, the non-lawyer can pick up

the complex strategy developed by the lawyer, review all of the alleged intricacies

and interrelated issues, and then appeal the decision before Medicaid's

Administrative Law Judge, who may be a non-lawyer, to decide the fate of the

applicants federal benefits? If the Standing Committee instead changes positions

and represents that the non-lawyer assister is allowed to attend the appeals hearing

but not advocate on behalf of the applicant, this leaves the Standing Committee in•042

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•042a position clearly contrary to applicable Federal law and with no credible way to

explain why attendance of the non-lawyer assister is warranted to the point of

being specifically authorized under Federal law.

The only logical conclusion is that the intent of the Federal Law is for a non-

lawyer Administrative Law Judge to decide the fate of the case, while the role of

the non-lawyer assister is to understand, interpret, and apply the rules and

regulations during the application process, and also apply and advocate, to the best

of the assister's ability, for the applicant at the Fair Hearing.

Harm To The Public

The Standing Committee insists that the public must be protected from the

harm that is allegedly caused by non-lawyers. There are a number of problems

with their argument.

1) The Standing Committee presented only one written complaint in its

evidence that allegedly related to misconduct regarding the Medicaid

application process. The Standing Committee also presented testimony by

only two allegedly harmed individuals at the public hearing. Both

individuals' public hearing testimony, after analysis, does not provide any

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information of relevance that would allow the testimony to be considered

applicable to the issue at hand. An analysis of these individuals' in-person

testimonies and the written testimony follows.

Ms. Peggy Crabbe, a witness at the public hearing, chose to hire a non-

lawyer application service and then decided she wanted her money back after Ms.

Crabbe refused to provide adequate information to the application service (Written

testimony of the application service appendix H). The non-lawyer application

service refunded 90% of the fee paid by the client. That type of refund policy is

both professional and ethical on its face. Ms. Crabbe instead hired the lawyer Mr.

Rosenkranz. The idea that the application service allegedly did not properly

categorize the funds, supposedly contributed by the applicant's son, is a moot point

since either way the couple was under the Community Spousal Resource

Allowance and the family would have qualified for benefits. Ms. Crabbe stated, ...

"We only have our house"... (Pg 40, ln 20 - 21 of Public Testimony). The exact

amount of that Resource Allowance depends on the year of the occurrence but was

certainly in excess of $100,000, far greater than the $10,000 the citizen claimed

was all that the couple had, regardless of whom it actually belonged to. Further,

many nursing homes will file a Medicaid application as a courtesy on behalf of a

family that is already within the asset and income limits and also has no

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•042 Why this particular nursing home did not do isproblematic gifting issues. so

unclear. Perhaps the case is more complex than represented. It is hard to know

because most of the testimony by Ms. Crabbe was emotional and somewhat

incoherent testimony regarding information that was not relevant to the issue at

hand. In short, Ms. Crabbe simply was not credible. (Testimony at Pg. 38, Ln 15

- Pg. 44, Ln 17 exhibit C).

Ms. Carolyn Norton testified that in 2007 she was harmed and "duped" by a

Non-lawyer Medicaid application service. This is clearly not the case. An

insurance agent, using the guise of "Medicaid Preplanning", to sell an insurance

policy, and also a Revocable Living Trust, allegedly duped Ms. Norton. She did

not represent that the agent attempted to charge Ms. Norton to file a Medicaid

application. Nor did she testify that the agent ever filed or attempted to file a

Medicaid application on her behalf, nor did she request such assistance. This is not

the Non-lawyer Medicaid application service activity at issue in this Proposed

Advisory Opinion, nor is it the assistance activity authorized by Congress. The

sale of a life insurance policy is not a part of the advisory request, nor is the sale of

a Revocable Living Trust. Further, the subject of the requested advisory opinion is

Medicaid "Crisis Planning", which usually involves an application for Medicaid

benefits within a short time period from the completion of the "planning activity"

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having occurred. Usually the application occurs within days, or at most weeks. In

some circumstances, the application occurs before the planning activity when

"fixing" cases that have been mishandled by other non-lawyer or lawyer

application assisters. The fraudulent sale of an insurance policy is regulated by the

Florida Office Of Insurance Regulation and any valid complaint should be directed

to that agency. The involvement of non-lawyers in the sale of a revocable living

trust has already been addressed by the Florida Bar and, if a violation occurred, the

Bar should appropriately deal with that violation. The Standing Committee should

not be allowed to mischaracterize this activity in an effort to artificially further its

agenda (at Pg. 19, Ln 18 - Pg. 22, Ln 18)

The only firsthand complaint regarding "legal advice" was in the form of a

letter from Patsy Weekley Marquis dated February 19, 2013 and a Florida Bar

complaint with a date uncertain from the same Ms Marquis. While there may or

may not have been unethical activity regarding fees, and there may or may not

have been a planner caused error regarding the funding of the income trust, the

main complaints seem to be the issue of non-disclosure of tax consequences to Ms.

Marquis regarding proceeds from the Personal Services Contract and the payment

to an attorney from the non-lawyer application service. If this non-lawyer

Interested Party properly understands the issues, the indirect payment for a legal

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document may not be so much a direct violation of the UPL, as it may be an ethical

or rule violation of the attorney and is not at issue in the matter before this Court.

The issue in this complaint is regarding the tax advice, or lack thereof, rather

than Medicaid advice. Interestingly, had the non-lawyer offered the tax advice,

then based on the Florida Bar's position regarding the Federal Medicaid rules, if a

parallel position were held on tax laws, the non-lawyer would be, it would appear

in the eyes of the Florida Bar, guilty of practicing law for disclosing the tax

liability since that would be an interpretation of tax law. This situation is one of

many examples of the impossibility of severing assistance from counsel when

completing and prosecuting a Medicaid application.

There is no indication of whether the non-lawyer did or did not advise

Ms. Marquis that she should consult a tax advisor. If such advice occurred, then

according to the Standing Committee, the non-lawyer would have presumably

acted properly regarding legal advice by not making the disclosure the Standing

Committee is currently criticizing the non-lawyer for not making.

Finally, it is not at all clear whether Ms. Marquis's father would have

implemented any other available strategies. Were other strategies explained? If

so, did Ms. Marquis's family decline those options? While the tax liability should

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have been disclosed if it was not, that does not necessarily mean she was harmed.

Ms. Marquis would have only been harmed if there were other strategies,

acceptable to the family, with negative financial consequences less than those

created by the Personal Services Contract.

This Interested Party can testify to representations from many clients, who

have come to the Interested Party after consulting with one or more lawyer(s),that

claims the lawyer(s) never mentioned the tax consequences of a Personal Services

Contract when discussing options. Whether the professional is a lawyer or non-

lawyer, the fact that tax consequences are likely, should, without question, be

disclosed in writing and should be allowed without the fear of committing the UPL

(Marquis Letter Appendix F).

As a non-lawyer Medicaid application filer this Interested Party has, for

more than a decade, required the client's written Acknowledgement of Disclosure

regarding proceeds of Personal Services Contracts (PSC's) being considered as

income, subject to both income tax and self-employment tax. Further, this

Interested Party advises his clients to secure the legal services of an attorney who

is paid directly by the client and who has a direct relationship with the client

regarding the creation of documents and the asset protection strategy.

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2) By accepting the Proposed Advisory Opinion as listed below, the very

people for whom Medicaid is truly meant, will ultimately be those whom are

harmed.

It is also the opinion of the Standing Committee that it constitutes

the unlicensed practice of law for a non-lawyer to render legal

advice regarding the implementation of Florida law to obtain

Medicaid benefits. This includes advising an individual on the

appropriate legal strategies available for spending down and

restructuring assets and the need for a personal service contract

or Qualified Income Trust.

•042The reality of what this advisory opinion will do is make it the UPL for the

admissions person, social worker, business office manager, or Medicaid specialist

at the nursing home, the social services person at the hospital, or anyone else

regardless of position, knowledge, or need, to tell a family that they should do

something as simple as designate minimal excess assets to a "burial account", pay

off debt, or make repairs to a home, all of which are clearly authorized by

Medicaid policy at the Federal level and therefore a part of the rules in all 50

states. The Standing Committee might argue that the term "Florida law" was used

for that reason. However, just because a law is Federal doesn't mean it is not also

a law of Florida.

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Further, criminalizing this type of activity will require that only lawyers

apply on behalf of applicants in virtually all situations, which will drive the costs

of nursing homes even higher since the nursing homes will have to shoulder the

additional costs for those people who could qualify with very little "strategy" but

do not have adequate assets to pay a lawyer and who have traditionally been

assisted in filing the Medicaid application by the nursing home providing the care.

Then there is the common occurrence of an applicant with income above the

Income Cap who has no assets. Other than the need for an Income Trust, the

applicant would qualify for benefits. Based on the Proposed Advisory Opinion, no

one except a lawyer could tell the applicant an Income Trust is needed. Either the

applicant would have to be astute enough to know he needs an Income Trust on his

own or the nursing home or hospital worker would have to gather the income

information, which under the. Proposed Advisory is also UPL, since, in this

example, the income ultimately exceeds the Income Cap. The worker would then

have to decide to admit to UPL by telling the applicant or applicant's family a

lawyer is needed, but can't tell them why without again committing UPL. The

proposed opinion would leave this hypothetical, but clearly realistic applicant four

choices: 1) Do nothing and accept care from the nursing home that can never be

fully paid for, while fearing the inevitable discharge notice; 2) Pay a lawyer out of

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income that is part of patient responsibility to the nursing home, which again will

leave the nursing home short on what it is due for the care being provided; 3)

Attempt self-help by drafting the document, which while possible, is likely to

cause more harm than the Proposed Advisory Opinion will prevent; 4) Rely upon

the charitable inclinations of the legal community to work on a Pro Bono basis, to

the extent such a charitable inclination exists once the legal community finds out

how often such charity will be necessary.

No family should have to choose between short-changing a health care

provider, exercising self-help, or relying upon uncertain charity when a standard

form of an agency requiring the very document in question could be provided. No

person providing assistance should be required to be "gagged" because of

unwittingly finding information that result in the UPL.

DCF itself sets the standard for what wording in a QIT qualifies and what

QIT wording doesn't. The agency should be allowed to provide to applicants a

standard QIT and standardized instructions. Such a standardized document would

solve the problem of denials based on poor wording, regardless of who completes

the document.

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The Standing Committee proposes to severely limit the assistance of non-

lawyers because of the alleged harm caused to the public. The Standing Committee

has woefully failed to demonstrate such harm. There are approximately 77,400

Nursing Home Medicaid beds in the State of Florida, but the Standing Committee

has only presented one written complaint since 2008 that can be connected to a

Medicaid Long Term Care application for assistance. Even then, the primary

alleged harm is in regards to failure to disclosure federal taxes consequences rather

than poor Medicaid advice. Other complaints regarding UPL, it appears, have

been originated by Florida lawyers who provide no factual evidence to support the

alleged harm represented.

Ironically, if the Proposed Advisory is adopted, non-lawyers will be required

to do an inferior job when assisting Medicaid applicants since the proper filling out

of an application regarding assets and other non-income information will be the

only activity clearly not the UPL. As a result, complaints against non-lawyer

assisters are likely to rise to a level higher than the current number of complaints,

being one, because of the "required failure" of the non-lawyer regarding issues that

are inevitable and incident to the successful completion and prosecution of a

Medicaid application. Such "required failure" would include not allowing the

recommendation of probate avoidance at the death of the applicant, thereby leaving

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any assets protected during the application assistance process subject to asset

recovery.

In short, acceptance of the Proposed Advisory Opinion will create an

unimaginable backlog of potential subserviced applicants and actual subserviced

applicants, will increase costs, promote inferior assistance by non-lawyers, will

increase application denials, and will ironically, increase harm to the public rather

than reduce harm. The Medicaid application system is already strained to the point

of breaking and acceptance of the Proposed Advisory Opinion will harm the most

vulnerable people the system was designed to protect.

The Need for Oversight

The Standing Committee advises that non-lawyers are not properly trained

to provide Medicaid application services that are incident to the application

process. This Interested Party submits that many non-lawyers and lawyers alike

are not properly trained. Granted, Elder Law lawyers who are Board Certified

bring a demonstrated expertise to the marketplace. However, a high percentage of

the lawyers engaging in Medicaid application service and related services incident

to that process are not Board Certified Elder Law lawyers and therefore, according

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•042to the Standing Committee's representations as to the complexities of this

circumscribed area of the law, cannot be properly equipped to handle matters

correctly for the public. If the Standing Committee is concerned with public harm,

then the argument should include proper training in the area of Elder Law, in

addition to a general law degree for those lawyers that wish to practice in this area.

The Standing Committee also advises that non-lawyers are not regulated. It

should be noted that many non-lawyer assisters have various licenses and

professional designations with regulatory oversight, often from multiple regulatory

authorities, that arguably exceeds the oversight of the Florida Bar. However, the

issue is that it is the Federal agencies that have been empowered by Federal law

with the oversight of those practicing within the particular agency. These agencies

have historically not provided stringent oversight of lawyers or non-lawyers until a

recognized need arose. Neither, the U.S. Patent Office, the Social Security

Administration, the Veteran's Administration, nor the Internal Revenue service,

had any meaningful requirements regarding who could practice before them for

many years. As a need for more stringent requirements arose, the agencies

implemented standards and an approval process for who could practice before

them, which in some cases included testing to determine a reasonable level of

competency, but none of these agencies limited, nor currently limit, practice before

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them to licensed lawyers. The argument could be made that the Patent Office and

the VA serve a narrow segment of the population and are negligibly impactful on

the population as whole and therefore the general public does not need to be

protected. No such argument can be made for the Internal Revenue Service which

directly affects virtually every United States citizen either through some type of tax

credit or tax obligation, nor can such argument be made regarding the Social

Security Administration which ultimately affects every U.S. citizen, almost

without exception.

It is clear by precedent of other agencies created and controlled by Federal

law that the issue of oversight belongs to the Federal Agency, or State Agency

operating under agreement with the Federal Agency such as the Agency for Health

Care Administration (AHCA). This is part of the Federal Supremacy Clause and is

not under state control. This Interested Party, without question, strongly advocates

for higher standards of training and ethics for both lawyers and non-lawyers alike,

but the regulation of those standards are not for the Florida Bar, at least not for

non-lawyers, but rather for the agency itself which, to this point, has not

determined a need for additional regulation.

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Summary

Below is a chart that was recently provided to this Interested Party, which

was used by this Interested Party, in part, to attempt to understand the issues and

determine if Medicaid application service as a business constitutes the UPL, as is

alleged by the Standing Committee. While the Interested Party, being a non-

lawyer, may have misinterpreted the hypothetical comparison, it was a

consideration in making the determination that the matter before this Court is not

the UPL:

Sperry Decision

1. Florida may not prohibit petitioner from performing within the State tasks which are incident to the preparation and prosecution of patent applications before the Patent Office. Pp. 373 U. S. 381-402.

(a) The determination of the Supreme Court of Florida that the preparation and prosecution of patent applications for others constitutes the practice of law, within the meaning of the law of that State, is not questioned. P. 373 U. S.

383.

Medicaid Application Service

(hypothetical)

1. Florida may not prohibit petitioner from performing within the State tasks which are incident to the preparation and prosecution of Medicaid applications before the Florida Department of Children and Families

(a) The determination of the Supreme Court of Florida that the preparation and prosecution of Medicaid applications for others constitutes the practice of law, within the meaning of the law of that State, is not questioned.

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(b) Florida has a substantial interest in

regulating the practice of law within the State, and, in the absence of federal legislation on the subject, it could validly prohibit non-lawyers from engaging in this circumscribed form of patent practice. P. 373 U. S. 383.

(c) A federal statute, 35 U.S.C. § 31, expressly permits the Commissioner of Patents to authorize practice before the

Patent Office by non-lawyers; the Commissioner has explicitly granted such authority; and Florida may not deny to those failing to meet its own qualifications the right to perform acts within the scope of the federal authority.

Pp. 373 U. S. 384-385.

(d) There cannot be read into the federal statute and regulations a condition that such practice must not be inconsistent with state law, thus leaving registered patent practitioners with the unqualified right to practice only in the physical presence of the Patent Office and in the District of Columbia, where that Office is now located. Pp. 373 U. S. 385-387.

(e) The legislative history of the statute and its predecessor provisions shows that Congress recognized that registration in the Patent Office confers

(b) Florida has a substantial interest in

regulating the practice of law within the State, and, in the absence of federal legislation on the subject, it could validly prohibit non-lawyers from engaging in this circumscribed form of Elder Law practice.

(c) A Federal Regulation, 42 C.F.R. § 435.908(b), states: "The agency must allow individual(s) of the applicant or

beneficiary's choice to assist in the application process or during a renewal of eligibility." The Commissioner has explicitly granted such authority; and Florida may not deny to those failing to meet its own qualifications the right to

perform acts within the scope of the federal authority.

(d) N/A

(e) The legislative history of the statute and its predecessor provisions shows that Congress recognized the need for assistance in applying for Medicaid

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a right to practice before that Office, without regard to whether the State within which the practice is conducted would otherwise prohibit such conduct. Pp. 373 U. S. 387-402.

(f) Since patent practitioners are authorized to practice only before the Patent Office, the State maintains control over the practice of law within its borders except to the limited extent necessary for the accomplishment of the federal objectives. P. 373 U. S. 402.

2. As so construed, 35 U.S.C. § 31 is constitutional. Pp. 373 U. S. 403-404.

(a) By establishing the Patent Office and authorizing competent persons to assist in the preparation of patent applications, Congress has not exceeded the bounds of what is "necessary and proper" to the operation of the patent system established under Art. I, § 8, Ch 8, of the Constitution. P. 373 U. S. 403.

(b) Having acted within the scope of the powers "delegated to the United States by the Constitution," Congress has not exceeded the limits of the Tenth

benefits, without regard to whether the State within which the practice is conducted would otherwise prohibit such conduct.

(f) Since Medicaid application service practitioners (Application Assisters) are authorized to practice only before the Department of Children and Families, the State maintains control over the practice of law within its borders except to the limited extent necessary for the

accomplishment of the federal objectives.

2. As so construed, 42 C.F.R. § 435.908(b) is constitutional.

(a) By establishing the Agency for Health Care Administration Office and authorizing persons to assist in the preparation of Medicaid applications, Congress has not exceeded the bounds of what is "necessary and proper" to the operation of the Medicaid system established under Title 42.

(b) Having acted within the scope of the powers "delegated to the United States by the Constitution," Congress has not exceeded the limits of the Tenth

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Amendment, despite the concurrent effects of its legislation upon a matter otherwise within the control of the State. P. 373 U. S. 403. (c) In view of the standards prescribed in 35 U.S.C. § 31 to guide the Patent Office in its admissions policy, it cannot be said that Congress has improperly delegated its powers to the administrative agency. Pp. 373 U. S. 403-404.

140 So.2d 587, judgment vacated and cause remanded.

Page 373 U. S. 381

Amendment, despite the concurrent effects of its legislation upon a matter otherwise within the control of the State.

In view of the standards prescribed in 42 C.F.R. § 435.908 to guide the Agency for Health Care Administration Office in its assistance policy, it cannot be said that Congress has improperly delegated its powers to the administrative agency.

The guidance of this Court is that Non-lawyer Medicaid application services or others assisting in applying for Medicaid Benefits and carrying out activities incident to such application, including the filling in, execution, and instruction regarding documents drafted by a lawyer in good standing with the Florida Bar is not the Unlicensed Practice of Law. Such documents include qualified income trusts, durable powers of attorney, and personal services contracts. Further, the rendering of legal advice related to Florida laws, rules and regulations in applying for Medicaid benefits, the interpretation and argument regarding such laws within the Department of Children and Families and The Florida Office of Hearings, on behalf of another, with or without compensation, is not the Unlicensed Practice of Law.

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CONCLUSION

For the foregoing reasons, the Court is respectfully requested to reject the Florida Bar's Proposed Advisory Opinion.

Respectfully Submitted,

Antony I 863. . 800.582.1934 office 863.904.0196 fax Mailing Address: P.O. Box 8087 Lakeland, FL 33802 Office Address: 2920 Drane Field Rd Lakeland, Fl. 33811

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CERTIFICATE OF SERVICE

I certify that a copy of this Amended Letter in Opposition to the Proposed

Advisory Opinion was sent by Email to the following this 5th day Of March, 2014.

Carsandra D. Buie, Chair Robert Sondak, Chair Jeffrey T. Picker, Esq. Elder Law Section Lorie S. Holcomb, Esq. 9400 South Dadeland Blvd., Suite 600 The Florida Bar Cohen, Chase, Hoffman& Schimmel, P.A. ¡[email protected] Miami, FL 33156

rmsondak(Smiamitaxlaw.com Cindy Huddleston, Esq. Florida Legal Services, Inc. 2425 Torreya Drive Tallahassee, FL 32303 [email protected]

Stephen M. Masterson Florida Bar No.: 201014 2927 Kerry Forest Parkway Tallahassee, Florida 32309 Telephone: (850) 445-3657 Facsimile: (850) 893-5846 [email protected]

The Florida Bar Standing Committee on The Unlicensed Practice of Law 651 E. Jefferson Street Tallahassee, FL 32399-2300 Email: [email protected]

Anto

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