8/20/2012 2:15 PM ET|
Will you get Dad's nursing-home bill?
A little-known law in many US states may leave you on the hook for your parents' nursing-home expenses if they can’t pay. Find out how to protect yourself.
You typically can't be held responsible for your parents' debts. The exception may be if the debt is a whopping nursing-home bill.
Pennsylvania's Superior Court recently ruled that a nursing home in that state could go after the son of an elderly woman who had left the country owing a $93,000 bill for a six-month stay.
Health Care & Retirement Corporation of America pursued the son, a 47-year-old restaurant owner named John Pittas, under the state's "filial responsibility" law. Twenty-eight other states and Puerto Rico have similar laws, which create a legal duty for children to financially support indigent parents.
According to Katherine Pearson of Penn State's Dickinson School of Law, the states with filial-responsibility laws (.pdf file) are: Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia and West Virginia.
In most states, the laws are seldom enforced. Filial-responsibility codes date from colonial times in America and, even before that, to the "poor laws" of the Elizabethan era in England, Pearson said. After the advent of Social Security, Medicare and Medicaid, which prevented seniors from falling into abject poverty, some states repealed their laws, and others stopped enforcing what remained on the books.
"What we've seen is that family members who can support each other, do support each other," Pearson said, "unless there's a strong personal reason why you don't."
When there has been enforcement in the recent past, it typically was because an adult child had defrauded the parent or was otherwise at fault in creating the parent's poverty.
That wasn't the case with Pittas, and elder-law attorneys are concerned that the court's ruling could encourage other nursing homes to sue family members for unpaid bills. Some worry that increasingly strapped states might use the laws to get reimbursement for custodial care.
"Just because they haven't done so yet doesn't mean that they won't," said elder-law attorney Michael Amoruso, a past president of the New York chapter of the National Academy of Elder Law Attorneys. "All the states are struggling for money."
Pennsylvania, South Dakota and North Dakota have filial-responsibility laws that specifically allow third parties -- such as nursing homes -- to pursue support cases, Pearson said. Without such language, the presumption had been that third parties couldn't sue. But now, attorneys for nursing homes are testing the laws in other states by filing lawsuits "on behalf of" the indigent parents, Pearson said.
"They're going to figure out how to do a third-party lawsuit without a third-party statute," Pearson predicted.
Still, elder-law attorneys say there are factors that may prevent a rash of collection actions against the children of nursing-home residents:
A potentially conflicting federal law. A federal Medicaid law prevents facilities from demanding that relatives act as "guarantors" before accepting a patient. The relatives' assets and income are not supposed to be considered in admission decisions. That would appear to conflict with nursing homes' attempts to collect from children of patients, even in states with filial-responsibility laws, said Harold Grodberg, an elder-law attorney in Clark, N.J.
Nursing homes' self-interest. Howard Krooks, the president-elect of the elder-law attorneys' academy, has represented nursing homes and says they're typically sensitive to their reputation in the community. That tends to soften their collection efforts, he said. "If you consistently go after the offspring of your patients," said Krooks, who practices in Boca Raton, Fla., "you may find your beds are more available."
A different interpretation of support. Filial-responsibility laws have traditionally been interpreted as requiring continuing monthly support, said Marielle Hazen, an elder-law attorney who practices in Harrisburg, Pa. "It shouldn't be used to get a lump sum settlement of a debt," Hazen said.
None of this has deterred collection attempts in Pennsylvania, which has what Krooks called "one of the most Draconian filial-responsibility laws in the country." Hazen said the Pittas case is far from isolated.
"This is not the only case where nursing homes have been successful," Hazen said. "Nursing homes are typically using it when there is a gap between private payment and eligibility for Medicaid."
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