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Paying for Mom: Little-Known Laws Force Families to Fund Parents’ Care

Beth Baker - AARP Bulletin Today

Beth Baker

In 2007, Elnora Thomas of Tampa, Fla., received a disturbing letter in the mail. She was being sued by her mother's nursing home in Philadelphia for nearly $50,000 in unpaid bills. "I have no money," says Thomas, 58. "But I have a house. They told me they would put a lien on my house to get me to pay the nursing home bill."

Thomas and her sister Peggy Crowder, who received a similar letter despite being unemployed at the time, were snared by a little-known law that requires adult children to support their indigent parents. Thirty states have such statutes, known as filial support (or responsibility) laws. Most are rarely implemented, though Pennsylvania's statutes have been used by nursing homes in at least 50 cases to compel families to cover unpaid bills or to pressure them to become more involved in getting Medicaid coverage for their elders. While such laws could be used by a parent to sue an adult child, "all the lawsuits I'm seeing are filed by long-term care facilities against some family member," says Katherine C. Pearson, professor of law at Penn State who studies filial support laws.

In Thomas' case, the nursing home went after her and her sister after their stepfather refused to cooperate in the Medicaid application process. Her mother, who only receives $300 a month in Social Security benefits, was denied assistance because her husband refused to divulge his own modest income and assets.

Only after Pam Walz, director of the Elderly Law Project at the nonprofit Community Legal Services of Philadelphia, went through several appeals on Thomas' mother's behalf did Medicaid come through. Had she not gotten involved, Walz says, Thomas would "absolutely" still have the threat of a lien on her house today.

"Not only was this family not at fault in any way, they did everything they could to get the medical assistance approved," say Walz, who has handled three similar cases in which families were sued under a filial support law. "It was completely out of their control."

The laws can also be used to encourage those who can help their parents to do so. John N. Kennedy, a Harrisburg, Pa., attorney who represents nursing homes, frequently uses the law primarily as a tool to persuade family members to help get their elders on Medicaid. "Nursing homes have to get paid for their services," he says. "If people aren't going to cooperate and help out their parents, and if there's a law on the books that I can use, I use it."

Filial support laws raise provocative questions about who should be responsible for costly eldercare. Families? Society at large? What about the individual's own role in planning for long-term care needs? The growing numbers of older people, their increased longevity and increasing care costs continue to make those questions that much more pressing.

Whose bright idea?

Although few people are aware that filial support laws exist, they have been on the books since the birth of the United States. Based on England's Poor Law Act of 1601, the laws originally held that the father, grandfather, mother, grandmother and children of "every poor, old, blind, lame and impotent person" had to step up and support their indigent relative to the extent of their ability. Only people in need who had no family members to support them were eligible for public assistance.

Today, the laws vary by state. In California, for example, "every adult child who, having the ability so to do, fails to provide necessary food, clothing, shelter, or medical attendance for an indigent parent, is guilty of a misdemeanor." ("Indigent" is not defined.) Rhode Island's law only applies to older people who are indigent through "misfortune" or no fault of their own. So if Granddad is destitute after a lifetime at the racetrack, he's out of luck.

A dozen states even include criminal penalties. In Rhode Island, the family member may be imprisoned for up to one year. States also differ on who can sue; in some, a county or medical provider can file. Family members may also be pitted against each other. South Dakota, for example, allows children who have been sued to demand that their siblings kick in as well. Six states include grandchildren as responsible parties. And, as Thomas learned, living out of state is no protection against a lawsuit.

Most states, including Pennsylvania, do have financial exemptions, so that children who themselves are financially strapped may not be required to support their parents. Children who were abandoned or treated cruelly by their parent may also be off the hook. But each case is decided by the court. In the meantime, families have to spend time and money on their defense, on top of the worry and stress involved. In Elnora Thomas' case, attorney Walz appealed four times to the Department of Public Welfare before Thomas' mother was found eligible for Medicaid. Only then did the nursing home remove the threat of a lien on Thomas' home.

However, most cases do not go to court, according to Kennedy, the Harrisburg attorney. His advice to family members sued under the filial support law: "Communicate and cooperate."

Walz cautions, though, that adult children should get their own attorney if they can afford the $2,000 she estimates it would cost.

Big bucks at stake

The moral underpinning for filial support, say elder law and ethics experts, is summed up by religious teaching to "honor thy father and mother." Observance of filial support, of course, can be found in one form or another everywhere in the world. "There's tremendous value in caring for the older generation," says Charlotte Goldberg, professor of law at Loyola Law School in Los Angeles, who believes the notion of filial responsibility should be strengthened in our society morally and ethically, if not legally. Family members suing each other hardly makes for a strong relationship, Goldberg observes, but at the same time the culture should expect more of adult children. Filial support is also rooted in the ethical notion of reciprocity: Parents support their children when they are young, and the young owe the same to their parents as they age.

Controversy over filial support today has less to do with the high-minded nature of family bonds, though, and much to do with the skyrocketing costs of eldercare. Given the growing numbers of older people, their increased longevity and increasing care costs, the burden needs to be shared by society, says Seymour Moskowitz, professor of law at Valparaiso University in Indiana. "We place far too much weight and burden upon family members to take care of the financial and other needs of parents," he says. "My own view is that, in the main, this is a social responsibility."

In the mid-1900s, the nation moved in that direction. Some states repealed their filial support laws or allowed them to languish, as Social Security, Medicare and Medicaid programs shifted some of the financial burden from individuals and families to the public. Indeed, Medicaid, the health insurance program for low-income people, has always excluded children's income and assets when considering an older adult's eligibility. As Bruce Vladek writes in his seminal book Unloving Care—The Nursing Home Tragedy, "The drafters of Medicaid specifically sought to insulate middle-aged children from the prospect of financial catastrophe engendered by the need to institutionalize aged parents. … Middle-aged children are not forced to exhaust all their own resources in order to provide nursing home care for their parents, but they are forced to witness the destruction of their inheritances, for which their parents may have scrimped for a lifetime."

To some extent, protection of adult children's finances still holds. Filial support laws are generally used when, for one reason or another, an indigent nursing home resident is not receiving Medicaid as anticipated. Today, Medicaid pays for half of long-term care costs—more than $100 billion per year, consuming more than one-third of its budget. But with those numbers projected to grow, Penn State law professor Pearson wonders if states will dust off filial support laws as a potential way to constrain Medicaid spending.

Others question why taxpayers should pick up the tab for nursing home care if an older person's family is able to pay at least some of the expenses. Writing in a recent issue of the University of Illinois' Elder Law Journal, Chicago attorney Allison Ross posits that more robust enforcement and strengthening of filial support laws would encourage older people to better plan for their future long-term care needs, knowing that their children might otherwise be burdened with their support. "When government support for the elderly falls short of providing the necessary care," she concludes, "family members should have an obligation to supplement government programs whenever possible."

Family and friends who care

In many instances, families do voluntarily help. Some 34 million Americans are caregivers for their parents, often at great cost. A recent AARP study estimated that family caregivers provided the equivalent of $375 billion worth of care in 2007; that's more than the cost of paid home care and nursing homes combined. Informal caregivers (family and friends) spent an average $5,531 out of pocket annually on their loved ones, more than 10 percent of the median income of respondents, according to a 2007 survey conducted by EverCare for the National Alliance for Caregiving. A survey of caregivers released in October by the website AgingCare found that 54 percent had sacrificed spending on themselves to care for their parents. Nearly half reported earning less money because of caregiving, and one-quarter had quit or been fired from their jobs.

Instead of legally threatening families, some experts suggest giving families more help, through tax credits or other benefits. "Most people, given the wherewithal and opportunity, will take care of their parents just because of who we're raised to be, as well as all the natural bonds between parents and children," says Moskowitz. "They don't have to be threatened with going to jail."

Beth Baker is the author of Old Age in a New Age: The Promise of Transformative Nursing Homes.

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