 Increased Population of Baby Boomers.
 Increased burden on the health care system.
 Estimated 10 Million Baby Boomers Will Develop
Alzheimer's Disease .
http://www.newsmania.com/difficult-learning-processes-stimulates-theelderly%E2%80%99s-brain-4241/group-of-older-peoples-get-together/

 Younger relatives with sufficient financial means responsible for parents.
 Usually require to provide sufficient food, shelter, medical care and other basics.
 Have been on the books since colonial times.
 Most states do not enforce- but in our current economic climate will this last?

 Roman Law: The support of parents was the duty of the offspring.
 Based on a theory of reciprocity.
 Parent took care of child, now child should take care of parent.
 Carried forward to English Poor Laws.
 Relatives 1 st source of aid and government assistance 2nd
 Ideals carried forward to the colonies.

 Majority of the states include filial responsibility laws.
 Great depression and New Deal ended this practice.
 Workers who had paid into the system looked to the government for assistance.
 Advent of Medicare and Medicaid in 1960’s further increased the aging populations dependence on government funds for support.
http://northdallasgazette.com/2012/07/11/humana-active-outlook-walking-programlaunches-to-improve-senior-health-through-physical-activity-and-socialization/

 Although a majority of the states have had filial responsibility, only
30 state codes include such laws.
 Penalties for violating filial codes range from civil monetary to criminal penalties.
http://blogs.prideangel.com/post/2012/02/Anonymous-sperm-donor-lawin-Canada-goes-to-appeal-court.aspx

St
 Most filial laws allow elderly parents or ad litem(s) to seek financial assistance if the individual is financially able to do so.
 Other state codes also allow hospitals, nursing homes and other health care facilities to seek assistance.
 Allowed third parties to bring suit against adult children to recover against the debts of their parents.

 Four states have active filial responsibility statutes and enforce them.
 California, Pennsylvania, South Dakota, and Rhode Island (RI only state to impose criminal sanctions.)
 CA: only the indigent individual can try to obtain support.
 PENN: Amount awarded for any 12 month period be the lesser of 6 times the excess income of the responsible party.
 SD: Standing for any person or entity with an interest in the elderly person’s financial interest.

 Exemptions in most states for adult children who were neglected or abandoned as minors.
 Based on the theory of reciprocity, if the parent did not provide for the child, then the child should not later be required to provide for the parent.
 Courts may consider several factors when determining responsibility:
 Personal income
 Number of dependents
 Living expenses
 Medical expenses
 Education costs
 Tax
 Value/ Nature of assets
 Need for savings
 Age of contributor

CASE: Health Care & Ret. Corp. of Am. vs. Pittas
The Statute at Issue: 23 Pa. Const. Stat. Ann. Sect. 4603
“Except as set forth in paragraph (2), all of the following individuals have the responsibility to care for and maintain or financially assist an indigent person, regardless of whether the indigent person is a public charge:
 Spouse of the indigent person.
 Child of the indigent person.
 Parent of the indigent person.
Paragraph (1) does not apply in any of the following cases:
 If an individual does not have sufficient financial ability to support the indigent person
 A child shall not be liable for the support of a parent who abandoned the child and persisted for a period of ten years during the child’s minority.”
Statute was enacted and became effective in July of 2005 .

Health Care & Ret. Corp. of Am. vs.
Pittas
The Facts
 September 24, 2007 mother entered skilled nursing facility following car accident and rehabilitation.
 About 6 months later in March of 2008, mother left the facility relocating to Greece.
 In May 2008 facility instituted filial support action against her son.

Mother had a spouse and other children.
 Facility and son went to arbitration and arbitrator found in favor of the son. The District Court reversed, and awarded facility $92,943.41 under the state’s filial responsibility statute.

Health Care & Ret. Corp. of Am. vs.
Pittas
Take-a-ways:

(1) Nursing Facilities do not need to consider other sources of income including spouse, other children or pending medical assistance claims.

(2) Facility must show that source of income chosen, here the son, has the ability to pay.
 Here Court found that net income of $85,000 and recent pay off of a tax lien where son had previously paid $1,100/month was sufficient.
 But, there is no bright line rule derived from the case. Decision is made on case-by-case basis.
http://www.budget101.com/familyfinances/fees-fees-fees-3783.html

Health Care & Ret. Corp. of Am. vs.
Pittas
Take-a-ways continued:
 (3) Facility has burden to show that resident owing money to it is “indigent.”
 Court found burden was met by showing that mother’s monthly sources of income totaled around $1000.00.
 (4) Must show specific evidence of your inability to pay or specific evidence that your spouse, child, parent, etc. is not indigent.
 Court found that son failed to produce specific evidence of either.

Health Care & Ret. Corp. of Am. vs.
Pittas
 What else could have been argued by the son?
 The amount awarded of $92,943.41.
 Second part of the filial responsibility statute limits the amount to the lesser of 6 times the excess of the liable individual’s average monthly income over the amount required for the reasonable support of the liable individual and other persons dependent upon the liable individual
OR the cost of the medical assistance for the aged.
 Son did try to argue this on his latest appeal.

Health Care & Ret. Corp. of America vs. Pittas--Afterwards
 Currently, highest court in the state denied to hear the case on appeal.
 Current legislation has been introduced to limit impact of the Pittas case. One bill introduced attempts to repeal the statute.
 Case could impact other state’s decision to enforce or toughen own
Filial Responsibility Statutes.

 Additional Facts about John Pitta:
 47 year old restaurant owner who is married with two children.
 Other siblings and spouse were located in Greece where mother went when she left the facility. Thus he was the only child remaining in the
United States.

Is it right to place the burden on a family member to collect payment from other family members to assist with payment?
 Did the Pennsylvania Court comply with Federal law regarding Medicaid accepting facilities?

 Congress passed Nursing Home Reform Law in 1987.
 42 U.S.C. Sect. 1395i-3(c)(5)(A)(ii).
 It mandates that a nursing home may not required a third party guarantee (including family members) of payment to the facility as a condition of admission or continued stay in the facility.
 It applies to all nursing facilities that accept Medicaid.
http:// www.lpntrainingprograms.org/lpn-job-description

 How have nursing facility responded?
 By continuing to get a third party guarantee masked in the contractual agreement for admission.
 Some facilities label it “responsible party” while others still call it a
“voluntary” third party guarantee.
 Expedited need and sensitive situations in admissions create conditions where a party does not know it is volunteering to assume liability. Nor do the nursing facilities make clear by telling the families that it is not required for admission.
 These practices arguably violate the federal law.
 Very few cases interpret the law. No cases currently interpreting it in
Texas.

 Passed in 1955.
 Repealed in 1993.
 Included, and only applied to, Guardianship Matters.
 Section 423 provided that [when] “an incompetent has no estate of his own, he shall be maintained: ….by the children and grandchildren of such persons”.
 “Expenses attending the confinement of an incompetent shall be paid …of the estate…and if he has none…by the person bound to provide for and support of such incompetent.” http://www.health.com/health/gallery/0,,20518814_3,00.html

 State v. Stone 271 S.W.2d 741 (Tex. Civ. App.
1954)
 Claim against the estate of a former patient at Austin
State Hospital (ASH).
 ASH sought reimbursement for expenditures made in treatment of defendant’s son (son was in his 20s).
 Father argued that he was not liable for debts incurred under a contract that he held no privity.
 Court relied on 1955 filial responsibility act to determine that the father was responsible for his son’s care.
 In determining if father had adequate assets, court held could only look to the assets father had at the time of his son’s treatment.
https://shortsweetandlovely.wordpress.com/201
2/03/16/a-little-bit-of-texas-is-coming-soon/

 California v. Copus, 158 Tex. 196, 309 S.W. 2d 227
(Tex. 1958).
 State of California tried to recover funds expended on the treatment of an elderly women.
 Son moved to Texas. Argued that no remedy available because he lived in TX and CA did no have jurisdiction.
 Court rule that CA could recover for money spent when son did live in CA.
 Son argue that CA rule ran against TX policy.
 Court disagreed.
 1955 TX filial responsibility law never revised.
 1993 TX repealed without comment.

 Most filial responsibility law have withstood constitutional challenges.
 Swoap v. Superior Court of Sacramento County, 516 P.2d 840 (Cal.
1973).
 Plaintiffs raised EPA argument. Claimed filial responsibility laws apply unfairly to suspect classes (wealth & ancestry).
 Court rejected this argument saying that no suspect classed were targeted.
 Court held that that the state had a legitimate interest in ensuring that the needs of the elderly & indigent were provided for.
 Similar court holding in South Dakota.
 Son sued for costs of his mother’s medical care before her death.

 Utilization of filial responsibility will result in stronger family bonds.
 Governmental burden for funding and providing basic necessities should be on the family.
 Improve quality of life for elderly Americans.
 If family resources were taken into consideration then a large amount of people could be taken off Medicaid.
http://www.thelearningcommunity.us/about-us/whatwe-do.aspx

 Increased family tension.
 Potential decline in “in kind” support of parents.
 Those who are dependent of family assistance have a lower standard of living.
 Unlike child support, which ends, in most cases, at age 18, filial responsibility may last a significantly longer time.
 Requires suing his or her own child.
 Cost of enforcement.
 Unlike when filial responsibility first started, current American society encourages separation of parent and child.
 Criminal charges unlikely to help, older adults may expose child caregivers to criminal liability.
 Jurisdictional issues (eg. Copus case).

 Medicaid is administrated by the states, but federally funded and with federal control standards.
 Medicaid guidelines do not allow states to look at family resources in determining eligibility.
 These guidelines stopped courts from enforcing filial responsibility laws in the 1970s.
 States repealed there filial responsibility laws at the threat of losing federal funding. http://kccportland.blogspot.com/2012/07/talkingabout-money.html

 1980s saw a change on Health and Human Services
(HHS) position on filial responsibility.
 HHS encouraged use of filial responsibility laws.
 1983 Transmittal letter stated “the law cannot limit provisions requiring contributions from relatives…the
State may determine who is a relative…how much relatives must contribute under the statute of general applicability…and the methods of enforcement.”

 States legislatures and attorney general interpreted the Transmittal letter and as ineffective given Congress’ previous intent.
 Controversy exists over the Transmittal letter.
 Legal scholars believe it is invalid b/c:
 Reversal of Congressional intent
 Lack of proper administrative procedures
 No cases have been filed challenging the Transmittal letter
 Filial responsibility gained renewed attention.
 Practitioners must be prepared for the possibilities that the provisions will be used where filial responsibility laws still exist.

 Recent changes to Medicaid eligibility rules may be viewed as filial responsibility on a federal level.
 Passage of the Deficit Reduction Act.
 Certain state Medicaid regulations force individuals to look for family assistance.
http://livingstingy.blogspot.com/2011/02/problem-with-pills.html

 Signed on February 8, 2006 by President Bush.
 Implemented in Texas on October 1, 2006.
 Major changes to the transfers to family/friend, the start of the penalty period and annuities.
http://alongtheblossomtrail.blogspot.com/2012/09/uscis-approval_16.html

 Medicaid assesses a penalty period or loss of eligibility of benefits if an individual gives away money or assets.
 DRA transfer rules apply to transactions after February 8, 2006.

For every $156.43 the individual gives away, he/she loses 1 day of benefit.
 The start date of the penalty period begins when the individual meets the income cap, asset cap, medical necessity requirement, is in a Medicaid nursing facility, Medicaid bed, and has submitted a
Medicaid application.
 Look back period changed from 3 to 5 years.

 State of Texas passed legislation requiring the potential recoupment of Medicaid beneficiaries estate after death.
 Usually the house, which is exempt during the beneficiary’s lifetime.
 Applies to all applications after March 1, 2005.
 Applies to the “estate” as defined by the Texas Probate Code.
 Families, under current strategies, exceptions and exemptions, may be able to avoid recovery.

 Texas Medicaid rules do not allow family member to perform certain tasks.
 Family members cannot be compensated for
 House painting/ repairs
 Mowing lawns
 Grocery shopping
 Cleaning
 Laundry
 Transportation to medical care
 However third parties may be compensated for these tasks.
http://gorgeousingrey.com/single-girl-problems/

 The DRA drastically reduced the ability to make gifts.
 Clients can be in a difficult position if gifts have been made and now the client needs care.
 Client has the burden of proof in showing that in now way was the transfer made for Medicaid purposes.
http://mashable.com/2012/11/28/facebook-wantsyour-credit-card/

 Individuals caring for both their parents (financial or in-kind assistance) and children.
 Adult children will find their own resources stretched as they care for their own children, plan for retirement, and pay for their parents’ care.
 Adult children may be forced to hire third parties to provide for care they can do themselves, but Medicaid will not allow for compensation.
 Adult children will struggle to find quality care for parents and funding of the care.

 Families without proper legal advice may make transfers that impact Medicaid eligibility.
 Current economic conditions may bring back an interest in filial responsibility laws and enforcement.
 Best balance is combination of payment sources of the individual, the government and familial assistance.