Updated August 25, 2026. Quick answer: Filing the application is not the practice of law, and federal regulation requires the state to let a person of your choosing help you do it. Advising you on how to become eligible is the practice of law in Florida, New Jersey, Ohio and Tennessee – the four jurisdictions read from primary text here. New Jersey adds that doing it without a licence is a criminal offence and may also violate its Consumer Fraud Act.
The line, and which side each task is on
Every one of these four jurisdictions starts from the same federal floor and draws the same line, in slightly different words.
New Jersey’s Opinion 53 lists what a non-lawyer may do: “A Medicaid advisor or Application Assistor may provide information on insurance programs and coverage options; help individuals complete the application or renewal; help them with gathering and providing required documentation; assist in counting income and assets; submit the application to the agency; and assist with communication between the agency and the individual.”
And then what they may not: “But the advisor may not provide legal advice on strategies to become eligible for Medicaid benefits, including advice on spending down resources, tax implications, guardianships, sale or transfer of assets, creation of trusts or service contracts, and the like.”
Florida’s Supreme Court approved the same distinction from the other direction. On the application: “The preparation of the application for Medicaid benefits was not considered as federal law authorizes nonlawyer assistance in the application process.” On the planning: “It is the opinion of the Standing Committee that it constitutes the unlicensed practice of law for a nonlawyer to draft a personal service contract and to determine the need for, prepare, and execute a Qualified Income Trust including gathering the information necessary to complete the trust.”
The four jurisdictions, and what each one actually held
| State | Year | Who wrote it | What it holds |
|---|---|---|---|
| Florida | 2015 | Fla. Sup. Ct., approving the Standing Committee opinion | Drafting a personal service contract, and deciding on / preparing / funding a qualified income trust, is the unlicensed practice of law. Preparing the application is not. |
| New Jersey | 2016 | Committee on the Unauthorized Practice of Law, Opinion 53 | Lists the permitted assistance tasks, then forbids advice on eligibility strategy. Notes it is a criminal offence and may violate the Consumer Fraud Act. |
| Ohio | 2011 | Board on the Unauthorized Practice of Law, Adv. Op. UPL 11-01 | Medicaid planning requiring specialized legal training is the practice of law; whether a given engagement crosses the line is decided case by case. |
| Tennessee | 2007 | Attorney General Opinion 07-166 | A non-attorney may represent an applicant in an eligibility appeal because federal law preempts. No certification substitutes for a licence. |
Four jurisdictions, each read from its own primary document this session. No claim is made about any other state.
Ohio is the most permissive of the four and it is still not permission. Its board held that “The board concludes that Medicaid planning requiring specialized legal training, skill, and experience constitutes the practice of law.” It then declined to draw a bright line, saying “the board further concludes that the question of whether nonattorney involvement in Medicaid planning constitutes the unauthorized practice of law must be determined on a case-by-case basis”.
New Jersey is the sharpest. Its committee noted that “The Committee notes that such unauthorized practice of law is not only a criminal offense, N.J.S.A. 2C:21-22, it also may violate the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq.”
Tennessee answered a narrower question – representation in an eligibility appeal – and answered it in favour of the non-attorney, because federal law preempts: “Federal law expressly grants applicants for or recipients of Medicaid benefits the right to represent themselves or to be represented by a relative, friend or other spokesman during administrative appeals.”
What federal law actually gives you
The floor under all four opinions is two federal regulations, and they are worth knowing on their own because they are free.
42 C.F.R. § 435.908(b): “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.”
42 C.F.R. § 435.923(a)(1): “The agency must permit applicants and beneficiaries to designate an individual or organization to act responsibly on their behalf in assisting with the individual’s application and renewal of eligibility and other ongoing communications with the agency.”
And a detail New Jersey’s committee highlighted that almost nobody quotes: of the assisters a state certifies under § 435.908(c), “Certified assistors may not receive payment or compensation for their services.” The certified route is unpaid by regulation. Anyone charging you is not on it.
The price question, answered honestly
The figure in circulation for what a non-attorney company charges to file a Medicaid application – about $9,000 – traces, in this census, to a single blog post written by an elder law attorney comparing those companies to his own fee. It is one interested party’s estimate of a competitor’s price.
Of the 28 pages read here, the number of non-attorney Medicaid companies that publish a price for their own service is 0.
So the comparison people want – attorney versus non-attorney, dollar for dollar – cannot be made from published prices, because one side does not publish. What can be established is what each side is permitted to do, and that is what this page is.
How to check before you pay
Ask directly whether the person is a licensed attorney in your state, and check the answer with the state bar rather than with the person.
Ask which of the two jobs you are buying: filing, or strategy. If the answer includes trusts, transfers, spend-down or personal service contracts, in these four states that is legal work.
Ask the facility. Where a nursing home refers you to a company, ask what the referral relationship is – New Jersey’s committee specifically noted advisors associated with nursing homes.
And ask the county or state agency for the free help first. It is not a favour; under § 435.908(a) it is the agency’s obligation.
What this page does not settle
Scope: four jurisdictions, read from primary text on the date above – Florida (2015), New Jersey (2016), Ohio (2011), Tennessee (2007). The other 46 states are not read and no inference is offered about them. An advisory opinion is not a prosecution and none of these documents says any named company has been sanctioned.
Four states are read here. The other 46 are not, and no inference is offered about them. A state that has not published an opinion has not thereby permitted anything.
The Ohio board cites a Texas provision allowing only attorneys to perform Medicaid planning for a fee. That provision could not be read this session – the Texas statutes site would not serve it – so no claim about Texas law is made on this page.
An advisory opinion is not a prosecution. None of these documents says any particular company has been sanctioned.
This describes where the line is. It does not tell you whether a given person you are talking to has crossed it.
Sources
- 42 C.F.R. 435.908(b) — https://www.ecfr.gov/current/title-42/section-435.908
- 42 C.F.R. 435.923(a)(1) — https://www.ecfr.gov/current/title-42/section-435.923
- N.J. Comm. on the Unauthorized Practice of Law, Op. 53 (May 16, 2016) — https://www.njcourts.gov/sites/default/files/notices/2016/05/n160518c.pdf
- Ohio Bd. on the Unauthorized Practice of Law, Adv. Op. UPL 11-01 (Oct. 7, 2011) — https://www.supremecourt.ohio.gov/Boards/UPL/Advisory_Opinions/UPLAdvOp_11_01.pdf
- Tenn. Att’y Gen. Op. No. 07-166 (Dec. 18, 2007) — https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2007/op07-166.pdf
- The Florida Bar re: Advisory Opinion – Medicaid Planning Activities by Nonlawyers, 183 So. 3d 276 (Fla. 2015) — https://cases.justia.com/florida/supreme-court/2015-sc14-211.pdf
Related: Certified Medicaid Planner vs Elder Law Attorney · Elder Law Attorney Cost for Medicaid Planning · why this subject needs a lawyer · checking a credential when you are on your own.
General information drawn from the primary statutes, regulations, court opinions and published fee schedules named above, not legal, tax or financial advice. Fees change and the figures here are what each publisher stated on the date above; check the source before relying on it.