Monday, August 26, 2013

New Hampshire limits responsibility of children for parents’ care costs

Filial responsibility laws can be a big problem for the children of aging parents. These laws can make you financially responsible for your mother or father’s unpaid care costs.  
In Pennsylvania a child can be held liable to pay for the cost of caring for a parent where there is no other adequate source of payment. This is sometimes referred to as “filial responsibility.” The word “filial” means “pertaining to, or befitting a son or daughter.”  
Pennsylvania filial responsibility laws are being used by hospitals, nursing homes and other care providers to sue children for the unpaid cost of the care provided to the parent. For example, in the recent case of HCRA v. Pittas a son was held liable for over $93,000 of his mother’s nursing home costs. The son was not accused of any wrongdoing. The mother had not turned her assets over to the son. He was liable merely because he was his mother’s son and had some ability to pay.  
The legal citation for the Pennsylvania filial responsibility law is 23 Pa. C.S.A. §§ 4601-4606. See “Further Information” below for more on Pennsylvania’s law.  
Filial responsibility laws are under attack in some states
According to the Wall Street Journal “[t]wenty-nine states have ‘filial support’ laws that could be used to go after patients' adult children for unpaid long-term-care bills.” 
Until recently, one of those states was New Hampshire. Its law made children liable to provide support for their parents’ “reasonable subsistence compatible with decency or health.” It also allowed the state to pursue children for assistance rendered by the state to the child’s father, mother, stepfather or stepmother.   
But earlier this year, New Hampshire enacted HB 481 which repealed the liability of children for their parent’s care costs. In addition to repealing the liability of children for their parents’ cost of care, the New Hampshire law also now limits the liability of parents for the support of their adult children.
Montana also has a filial responsibility law. But in July, a Judge refused to allow a nursing home to collect an outstanding bill from the son of one of its residents. (Heritage Place, Inc. v. Jerry A. Jarrell (Mont. Dist. Ct., 11th Dist., No. DV-11-430(D), July 2, 2013). The Court suggested that application of the Montana filial responsibility law would be preempted by the federal prohibition against nursing homes requiring a third party to guaranty payment of the costs of care. (See 42 USC section 1395i-3(c)(5)(A)(ii); 42 USC Section 1396r(c)(5)(A)(ii) and 42 CFR 483.12(d)(2)).   
And in Pennsylvania legislation has been introduced to repeal this Commonwealth’s filial responsibility laws. (See Senate Bill 70 and House Bill 224, 2013-2014 Session.) Recently Pennsylvania has seen the most reported use of the filial responsibility laws in litigation against children. 
Although legislation to repeal these laws has been introduced, at the present time it seems unlikely that either of the Pennsylvania bills will move. Of course, voters could probably give the bills momentum by voicing their support to their state legislators.

A Public Policy Question

Long term care costs are often catastrophic. The policy question is: who should pay for mom’s care when her money runs out?  Nursing homes and other care providers say it shouldn’t be them, and it’s hard to disagree. But that leaves only the family and/or the government to pick up the costs for otherwise unpaid long term care services. Should the children pay, or should the government? 
Perhaps the children should pay in situations where there has been wrongdoing, or the parent’s funds have been transferred to the children. This is a public policy decision for our elected state representatives to make.
But in the Pittas case there was no evidence that the child had been enriched in any way. Under Pennsylvania law, an innocent child, even one who has devoted years of caregiving to the parent, is financially liable for the parent’s unmet care costs. It’s my guess that Pennsylvania's current policy strikes most voters are unfair. Most people I speak to about the Pennsylvania law are shocked by its existence, feel that goes too far, and believe that it should be modified, if not fully repealed.
But until the Legislature gets motivated to address this policy question, children will continue to be liable for their parent’s unpaid care costs in Pennsylvania.   
My thanks to Penn State Law Professor Katherine Pearson for pointing out the New Hampshire law in the ElderLawProf blog.

Further Information

The Montana case (Jarrell) is available on the Elder Law Answers website but access may be restricted to members of ElderLawAnswers

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