The adult children of elderly parents in many states could be held liable for their parents' nursing home bills as a result of the new Medicaid long-term care provisions contained in a law enacted in February 2006. The children could even be subject to criminal penalties.
The Deficit Reduction Act of 2005 includes punitive new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care. Essentially, the law attempts to save the Medicaid program money by shifting more of the cost of long-term care to families and nursing homes.
One of the major ways it does this is by changing the start of the penalty period for transferred assets from the date of transfer, to the date when the individual would qualify for Medicaid coverage of nursing home care if not for the transfer. In other words, the penalty period does not begin until the nursing home resident is out of funds, meaning there is no money to pay the nursing home for however long the penalty period lasts. (For the details, click here.)
With enactment of the law, advocates for the elderly predict that nursing homes will likely be flooded with residents who need care but have no way to pay for it. In states that have so-called "filial responsibility laws," the nursing homes may seek reimbursement from the residents' children. These rarely-enforced laws, which are on the books in 29 states (the figure was 30 but Connecticut's statute has since been repealed), hold adult children responsible for financial support of indigent parents and, in some cases, medical and nursing home costs.
For example ,Pennsylvania recently re-enacted its law making children liable for the financial support of their indigent parents. Jeffrey A. Marshall, an ElderLawAnswers member attorney in Williamsport, Pa., says the new Medicaid law could trigger a wave of lawsuits involving adult children.
"Litigation between nursing homes and children is likely to flourish," Marshall writes in the Jan. 20, 2006, issue of his firm's Elder Care Law Alert. "Nursing homes will sue children who will counter-sue for sub-standard care."
According to the National Center for Policy Analysis, 21 states allow a civil court action to obtain financial support or cost recovery, 12 states impose criminal penalties for filial nonsupport, and three states allow both civil and criminal actions.
For a discussion of filial responsibility laws in the New York Times's "New Old Age" blog, click here.