Filial responsibility laws and you

Recently, I read a post on Aging Care ( where I like to go interact with other caregivers)   by one of their writers who is a lawyer specializing in elder care. One of the posters asked a question about being held responsible for their parents’ nursing bills. The lawyer mentioned filial responsibility as a factor in recent lawsuits from nursing homes in Pennsylvania that sued family members for their parents’ nursing home bills. It got me thinking about the nursing dispute problem I had awhile back regarding our mom’s nursing bill and I thought I’d raise this issue here for your information as well as raising awareness of this possible problem for people as the population ages.

What is Filial Responsibility?

There are statutes in 30 states currently,  that establish a duty for adult children to care for their indigent elderly parents. These laws are rarely enforced because A. not many people know about them. B. Federal Law prohibits states from determining the financial responsibility of the individual for medicaid and other government aid.

History of Filial Responsibility

How did this come to pass? The U.S. derived these statutes from England’s  Elizabethan Poor Relief Act of 1601. This required the “father and grandfather and the mother and grandmother, and the children of every poor, blind, lame, and impotent person” to support that individual to the extent they were able.  This changed as society evolved and government options became available within the last century. In recent times, a woman was sued for over $300,000 for her mother’s nursing bills. She, with a middle-class income obviously could not afford to sustain that kind of cost. The case was essentially settled out of court.

Defenses Against Filial Responsibility

• Anyone who was abandoned by their parent for 10 years as a minor.
• The claim is higher than a certain percentage of the child’s income

People are shocked to find that they are a target of a medical bill because most people assume that government programs such as Medicare and Medicaid will take care of these bills. We, are one of those people. We were not given clear information by the director of the nursing facility that Medicare would stop paying after 30 days. Had we known at the time, we would have removed our mom immediately from the facility to get her care at home. 

If  a medical provider files a claim and it is rejected, or they don’t file it in time, they can go looking for others to reap the costs. The case about the woman could have been handled if a Medicaid application had been filed properly and pending no gifting issues. The government would have picked up the tab. 

Easier said than done

The federal deficit reduction act of 2006 has made it difficult for people to claim medicaid. Some parents, like ours unfortunately, didn’t plan correctly for long-term care in case they get sick.  I know my dad didn’t expect any of this to happen. Most people don’t even know how to properly plan for long-term care. Just ask around, and you’ll find that if they are confronted with issues like these they are always surprised or everything was planned last minute. Parents might also refuse to or forget to appoint one of their children with a Power of Attorney, then when crises occur the banks won’t release information without a court order usually in the form of conservatorship.

Is it Legal?

This is the question I posed for the attorney on Aging Care, but still haven’t heard  back from.  However, another attorney mentioned something about this possibly violating federal law, in particular, the Nursing Reform Act of 1987.

A nursing home cannot require a co-signature of a financially responsible party guaranteeing payment to the nursing home as a mandatory condition for a resident’s admission. It is unfair and deceptive for a nursing home to assert or give the impression that it has the right to require a third-party co-signer for a nursing home resident’s charges.

Now I’m not a lawyer, but I’m sure there can be case for this especially if someone decides to appeal to a higher court. In fact, when I contacted the Ombudsman office of San Diego about our situation (our bill was way lower than the case in question), they told me we weren’t responsible. So this one’s still up in the air as far as I’m concerned. If you’re in a similar predicament, it’s probably worth it to first try to get your parents approved for Medicaid to avoid ANY legal hassles, and if not, hire a lawyer and bring up the reform act as a possible defense. It might be worth a shot!

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