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Harry’s Law gets Medicaid Planning All Wrong

I usually enjoy David Kelley’s crazy law-related television shows like Boston Legal and Harry’s Law. They are great fun and often give some good portrayals of lawyers and legal issues. But, I’m always laughing at how a client comes in to the office in the morning and somehow they are in Court in the afternoon – sometimes with a jury there. It takes years to get into Court most of the time and at least several days to get a jury together and ready for a trial. But, I’ll allow some literary license to TV to keep the story moving.

But, I don’t like it when they get the law completely wrong and especially when they have the lawyers participate in fraud. Last week’s episode of Harry’s Law got the Medicaid rules wrong, and put lawyers in a bad light. Let me explain.

First, Kelley got Medicaid law all wrong. The couple in question only had a house and the husband needed nursing home care. The wife said she needed to get a divorce to save the house. This is wrong. Medicaid law allows the Community Spouse to keep the family home even though the other spouse is in a nursing home and on Medicaid benefits. She could also have kept several thousand dollars in extra cash as her resource allowance. There is no need for a normal couple to divorce in order to get Medicaid. Also, they said “Medicare” several times when they meant “Medicaid.” Those terms trip us all up once in a while, but if you’re writing a script for national TV you should get it right.

Second, it is possible to get a divorce and split assets equitably, and later apply for Medicaid, and this is not fraud. In some cases, for various reasons, it may make sense for a couple to divorce. Normally a divorcing couple will split assets equally, but in many divorces there is an unequal division of assets for some reason that makes it fair and reasonable to do so. If a Court approves a divorce settlement, then it is binding on the government to follow that judgment. The transfer of assets from one spouse to another would be by order of the Court and so not a disqualifying transfer for Medicaid eligibility purposes. A subsequent application for Medicaid that properly disclosed this and all other financial transactions would not be fraud.

I am disappointed that David Kelley and Harry’s Law would portray lawyers as so willing to commit fraud (as the story supposed they were doing). Every lawyer I know is highly ethical and would not participate in fraud. We have ethical training all of the time and are thoroughly aware of our duties to the Courts and the Government to engage in good behavior and not participate in, nor permit our clients to engage in, fraud.

And, perhaps worst of all, David Kelley did not consult with an Elder Law Attorney to ensure he understood the rules of Medicaid before he wrote the script. It was wrong in so many ways. I enjoy the show, but I’m disappointed in David Kelley.

PS – I always enjoyed James Spader on Boston Legal and it turns out I have a small connection with him. My mother and his mother taught together at Pike School in Andover, Mass. James and I both attended pre-school there, and of course I don’t remember it, but we were in the same pre-school group.