Posts Tagged ‘children’

“Filial Support” Laws: Making Children Pay for Their Parents’ Nursing Home

JULY 30, 2012 VOLUME 19 NUMBER 29
When your parents go to the nursing home, could you be liable for their bills? That may seem unlikely, but as the country’s leading authority on the subject (Prof. Katherine Pearson from the Dickinson School of Law at Pennsylvania State University) notes, there are laws on the books in many states which could make children pay for their indigent parents’ care. Prof. Pearson guest-authored this week’s Elder Law Issues, and she explains the problem and trends:

The latest controversial effort to reduce public costs for long term care may come not from the budget cutters at state and federal offices for Medicare or Medicaid, but from nursing homes, assisted living facilities or personal care homes. Pennsylvania is the proving ground for the test – and other states are watching.

Over the course of several years, nursing homes have increasingly turned to Pennsylvania’s filial support law as a tool to compel children to either help a parent qualify for Medicaid — or be at risk of paying for the parent’s bills out of their own pockets. Pennsylvania’s provision dates to colonial times, but a 2005 transfer from the welfare laws to the domestic relations code increased its visibility. The law provides that a child has the “responsibility to care for and maintain or financially assist” a parent, if the parent is deemed “indigent.” The statute does not define the term, but case law has given it a practical meaning by holding a parent is indigent if he or she does not have sufficient means to pay for care.

Occasionally a suit is brought by a needy parent against a child. In 1994, in the case of Savoy v. Savoy, an uninsured mother who had $10,000 in unpaid medical expenses sued her son. The result: a modest award of $125 per month, perhaps more significant for its symbolic value than for the economic effect in the case itself.

Since then, a series of cases and decisions has expanded the importance of the law in Pennsylvania. The latest case was decided by an intermediate appellate court in May, 2012. In Health Care & Retirement Corporation of America vs. Pittas, the Pennsylvania Superior Court affirmed a trial court award of more than $92,000 against the son of a woman who had received six months of care at a facility. The son raised several challenges to the trial court ruling, including the argument his mother could not be deemed “indigent” because she had modest monthly income of $1100. The son argued this income, plus her husband’s retirement income, was enough for the couple if they had not had the auto accident that led to hospitalization and extraordinary costs for her subsequent care in a nursing home. The court rejected the argument and repeatedly cited the “plain language” of the statute as the reason for the harsh result.

The son also argued unsuccessfully that he could not be held solely liable because other family members had not been sued. While the court said it was “sympathetic with the [son’s] obligation to support his mother without the assistance of his mother’s husband or her other children,” it was up to the son to join those individuals in the case if he wanted proportionate relief. The court also rejected the son’s argument that the suit should be stayed or set aside because of a pending Medicaid application, noting that any successful award could reduce his liability. In fact, although not acknowledged in the opinion, the Medicaid application had been denied, apparently because of questions raised during the application process, and the time for appeal had lapsed.

The Pittas opinion is significant because, unlike prior court rulings such as the 2005 ruling in Presbyterian Medical Center v. Budd, the court made no findings that the family had engaged in transfers or other unsuccessful efforts to avoid Medicaid eligibility rules. The court found the son’s claim of “inability” to pay for his mother’s care to be lacking in credibility, noting he had at least $85,000 in net annual income. But the court did not suggest the son was at “fault” for his mother’s indigent status. This was not a case where liability was tied to a family member’s efforts to divert assets.

Could a Pittas-style filial support ruling be coming soon to a state court near you? The answer is already “yes” in South Dakota. In 1994 and again in 1998, South Dakota appellate courts used South Dakota’s filial support law to enforce liability against adult children for health care or long-term care expenses of a parent. However, in those cases, it appears the rulings were tied to attempts to divert or hide the parent’s assets. According to news reports, some states, such as North Dakota, have already expressed interest in the Pittas ruling. Another state, Idaho, went the opposite direction in 2011 by repealing its filial support law entirely, citing the potential for confusion for families with nursing home costs.

Approximately 28 states have some type of civil or criminal filial support law on their books, although the enforceability of many of the state laws have been blocked or limited because of state rules on Medicaid. In most states filial support laws have been largely ignored in recent years. Pennsylvania is one of the few states that expressly provides for suits by care facilities or similar third-parties. The Pennsylvania statute permits a petition to be filed by the indigent person “or any other person . . . having any interest in the care, maintenance or assistance of such indigent person.”

Filial support laws carry various labels, with modern terms tending to suggest moral overtones that emphasize a family’s obligation to share “responsibility” for care. States seeking to provide nursing homes with collection tools that reduce the need for Medicaid may seek to follow the Pennsylvania route to a new frontier. The 2005 transfer of the filial support statute to the domestic relations code was rushed through the Pennsylvania legislature quickly and packaged with a cost-savings statute that tightened the state’s rules for Medicaid eligibility. Interested persons in other states will want to keep their eyes open.

Interested in the area, or wondering what your state’s laws might be with regard to filial support? For a more expansive discussion of such laws, including the roles they play in other countries, see Prof. Pearson’s recent article: “Filial Support Laws in the Modern Era.” As Prof. Pearson notes, these laws are sometimes described in terms of filial “responsibility” — as long ago as 1995 we wrote about an attempt to extend “family responsibility” laws by federal action (it came to nothing, as it turned out), and we have described individual cases attempting to impose filial support concepts before. The trend Prof. Pearson describes, however, could go well beyond previous attempts to hold children liable for their parents’ long-term care costs.

Maine Service Cutback Leaves Disabled Minor Without Program

FEBRUARY 6, 2012 VOLUME 19 NUMBER 5
Here’s an anecdote that we expect to see repeating itself over the next few years. It involves a fifteen-year-old boy with severe disabilities, and the Maine state Medicaid program. It also involves Maine’s efforts, like those of other states (including Arizona), to trim its eligibility roles for Medicaid, and the real problems that creates for individuals needing services.

CT (his full name is edited out of the reported court case) requires full-time, one-on-one adult supervision to prevent him from injuring himself. His mother applied for and got him on Maine’s program for home and community-based services, so that he could be cared for in a residential center or even at home rather than being institutionalized. That was in 2005 — two years after CT had been placed in a New Hampshire residential facility after failed trials in programs at his family home and in New Jersey.

CT’s mother assumed that getting him eligible for assistance from the State of Maine would mean that he would begin getting services — but that didn’t happen. The problem wasn’t his eligibility, but the availability of programs. He was placed on a waiting list in case a suitable placement opened up, but only twelve children in the state were getting services under the program and it didn’t look too promising.

Just after CT got eligible Maine decided to try to cut its Medicaid program by withdrawing its home and community-based services. Since those programs operate under a special waiver, it would be simple — Maine just stopped running a waiver program. But rather than re-institutionalize all patients already in the community, Maine announced that it would simply cut off new entries into the program, but would not remove services to those already receiving services.

Program officials assured CT’s mother that he would stay on the waiting list for placement. She received a letter from a program official telling her that Maine would “honor our mutual commitment to the children currently receiving, or those having already been approved for services in this waiver program.” Problem was, that letter was incorrect. Because CT was only eligible, not actually receiving services, he would be cut off from any future possible placement under the program.

Four years later CT’s mother finally got a residential home in Maine to make a proposal to care for CT. The proposal was contingent on funding through the waiver program he had been eligible for during those four years. Unfortunately, the Maine Medicaid agency denied the request, pointing to the 2005 cut-off of all new service requests.

CT’s mother appealed, arguing that she had relied on the state’s misrepresentations and that CT was injured by the reversal. The agency denied her again, and a judge upheld that denial. She appealed to the Maine Supreme Court.

The Supreme Court Justices upheld the denial of services for CT. They analyzed the arguments by applying the legal principle of “equitable estoppel.” Under that doctrine, the courts can give relief to someone who has relied on another person’s representations if that reliance has worked to their detriment. The courts can order a result that would not be possible under contractual or other theories, in order to prevent a miscarriage of justice.

There are at least two problems with the application of equitable estoppel to CT’s case, however. First, there is a general rule that one can not assert equitable estoppel claims against the state itself. If an agent of the state misrepresents state policy, that does not usually create a right to recover on behalf of someone who was injured by relying on that misrepresentation.

The second problem with applying equitable estoppel principles to CT’s case is more serious, though. The Supreme Court noted that, though CT (through his mother) relied on the state’s misrepresentation, he was not injured by that reliance. Yes, he was injured — by the withdrawal of eligibility that had previously been extended. But that injury did not occur because he relied on the state’s misrepresentation — it occurred because the state cut back its program.

The Court notes that if CT’s mother had found him a placement shortly after his eligibility, she could have gotten him into the waiver program before it was closed. But the Justices did not see any persuasive evidence that she would have found such a placement but for the misrepresentations that he would remain eligible for future placements if they opened up. Mrs. T v. Commissioner of Department of Health and Human Services, February 2, 2012.

What might CT’s mother have done if she had known how his eligibility would be cut off? She might have found him a placement in Maine more quickly, but in Maine, as in other states, there simply were not enough providers to take care of all the state’s residents with disabilities. As state budgets shrink, we can expect to see variations of CT’s story play out in other states as programs and services are withdrawn from a vulnerable and needy population.

Dispute Over Family Home Pits Children Against Stepchildren

OCTOBER 19, 2009  VOLUME 16, NUMBER 58

More than a decade ago we told you about a Utah case involving a widower’s remarriage (see Surviving Spouse Revokes Trust–Children Disinherited from February 2, 1998) . Although the children of the deceased woman and her surviving husband were supposed to receive everything on his later death, the widower revoked his living trust and transferred everything to his new wife. The children were effectively disinherited.

Of course we see that result all the time, as unanticipated shifts in family dynamics follow death and remarriage. When two people with grown families marry, they seldom consider, much less carefully plan, what will happen when the inevitable occurs. Now an interesting case — and, interestingly, again out of Provo, Utah — raises an unusual variant of the same story.

Harold and Edith LeFevre had seven adult children. After Edith died in 1987, Harold married Ellen Stout, who had five grown children of her own. When Harold died in 1993, he had made no estate plan at all. The second Mrs. LeFevre met with her late husband’s children to discuss his estate, and they all agreed that she should live in the family home for the rest of her life. She agreed that she would create a trust that left the home to the children, and that she would handle the probate of Harold’s estate to get the house into the trust.

One month after Harold’s death his widow met with her attorney to plan her own estate. The trust she had him prepare, however, did not resemble the agreement she had entered into with her stepchildren. Instead, the LeFevre family home was left half to her stepchildren and half to her own children.

Ellen then handled the probate of her late husband’s estate, transferring the residence into the trust she had created. Two years later, she amended the trust to disinherit the LeFevre children altogether, leaving the home and all her other assets to her children only.

For nearly a decade Ellen LeFevre lived in the home, becoming increasingly reclusive and withdrawn. Her son encouraged her to cut off communication with her stepchildren, and when she died in 2004 they were not even aware of the fact for some months. After they learned of her death and requested a copy of the trust, they were surprised to learn that they would not receive any portion of their father’s estate.

In a contested proceeding, the probate judge imposed a “constructive” trust, ruling that Ellen LeFevre had agreed to place the home in trust and then had violated that agreement. The Utah Court of Appeals agreed, and ordered that the home be transferred back to the LeFevre children.

According to the appellate judges, Ellen LeFevre had entered into a valid agreement, she had breached the terms of that agreement, and her children had been “unjustly enriched” as a result of her breach. The appellate court did not agree with the children that they should have their attorney’s fees paid by Ellen LeFevre’s estate. In the Matter of the Estate of LeFevre, October 9, 2009.

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