via Forbes Network Activity by Howard Gleckman on 5/16/12
Pennsylvania is one of 30 states that have filial responsibility statutes—laws that impose a duty on adult children to care for their indigent parents. About two-thirds of those states, including Pennsylvania, allow long-term care providers to sue family members to recover unpaid costs.
The rest, including states such as Massachusetts, have no recovery provisions. However, failing to care for a parent is a criminal offense. In the Bay State, the penalty is a $200 fine or up to one year in jail.
The rules vary widely from state to state. But most take into consideration the adult child’s ability to pay. For example, a daughter would be protected if she also has extensive bills for her own child’s college education. In some states, such as Maryland, only the nursing home resident is responsible for a bill, although family members can voluntarily agree to help pay.
And federal law prohibits states from going after families after someone is already eligible for Medicaid long-term care benefits or from including an adult child’s income and assets when determining whether a parent is eligible for Medicaid. As a result, these laws apply only before people enroll in Medicaid.
The Pennsylvania case involved a woman who spent six months in a nursing facility recovering from an auto accident. She had monthly Social Security and pension income of only $1,000, far less than the cost of her care. While she applied for Medicaid, that process can take many months and, in this case, the woman left the facility while her application was pending.
As a result, the nursing facility sued her son for her unpaid bill. He argued that she was not indigent since she had some income and that, even if she was, other family members also had an obligation to help and all the burden should not be placed on him.
The appeals court disagreed. It said that in Pennsylvania someone does not have to be destitute to be indigent. Family members are responsible even if she has income but has insufficient means to pay for her own care.
The court also ruled that the facility could arbitrarily go after any family member it wanted, as long as it could prove that relative had the resources to pay. For more details about the case, take a look at the Elder Law Answers Website, which brought the case to my attention.
These filial repsonsibility laws are not new. In fact, they can be traced back 400 years to Poor Relief laws in England. In the U.S. many states have had them on the books for decades, but they have been rarely enforced.
That may be changing. With the costs of long-term care rising (an average nursing home stay now exceeds $200/day), and with increasingly strict Medicaid rules making it tougher for people to receive government assistance, senior services providers may find themselves with more unpaid bills. These suits may generate bad publicity but may also be a facility’s only recourse.
While these laws don’t directly apply to Medicaid recipients, they may force children to pick up their parents’ long-term care costs long before mom is ever eligible for Medicaid. Such a step could still shift significant costs from states to families.