Filial responsibility: breaking the backbone of today's modern long term care system.

• Author: Sketchley, Twyla

1. Introduction II. Filial Responsibility Laws: An Antiquated System A. Background and Early Development B. Filial Responsibility Laws Displaced by Government Programs C. Example of Contemporary Filial Responsibility Statutory Scheme III. Modern Long Term Care System A. What is Long Term Care? B. Costs of Long Term Care C. Options for Payment for Modern Long Term Care i. Long Term Care Insurance ii. Private Resources iii. Government Programs iv. Informal Caregiving 1. The Costs of Caregiving to the Informal Caregiver 2. Value of Informal Caregiving to the Long Term Care System IV. Utilization of Filial Responsibility Laws will Break the Backbone of Long Term Care A. Filial Responsibility is Ambiguous B. Filial Responsibility Harms the Informal Caregiver and Discourages Family Caregiving and Planning i. Issues with Enforcement Across State Lines ii. Filial Responsibility Defenses Lack Utility iii. Attacking Informal Caregiving C. Filial Responsibility Discourages Family Cooperation & Planning i. Filial Responsibility Encourages Family Members to Sue One Another ii. Filial Responsibility Encourages Families to Take Over Parent's Lives V. Solutions A. Create Supports for Informal Caregiving i. Adult Day Care ii. Family Medical Leave Act iii. Modifying Medicaid Long Term Care to Emphasize Family Caregiving B. Encourage Informal Caregiving VI. Conclusion I. INTRODUCTION

   Mrs. Smith has been living in a nursing home for about seven months in Pennsylvania. Her limited income and lack of assets has left a nursing home bill of approximately $93,000.00 unpaid. Barbara, Mrs. Smith's only daughter, lived five miles from Mrs. Smith for years. Even though Barbara works full time and is raising two children, she helped Mrs. Smith for several years before Mrs. Smith entered the nursing home. Bob, Mrs. Smith's only son, lives in Florida and visits Mrs. Smith a few times a year, calls her every week, and occasionally sends money to Barbara when Mrs. Smith needs something. Yesterday, while at work, Barbara was served with a lawsuit filed by the nursing home in which Mrs. Smith lives. The nursing home is suing Barbara for Mrs. Smith's unpaid nursing home bill.

   This may seem a far-fetched hypothetical, but for many in the United States this could be reality. In many states, this can occur under filial responsibility laws. (1) Filial responsibility laws place responsibility and liability for the care of indigent family members on other family members. (2) These laws exist in the majority of states. (3) Some states are beginning to see aggressive use of these laws in pursuit of coverage of the cost of long term care. (4) Enforcement of these laws is unsustainable and will break the "backbone" of the modern long term care system: the informal care giver. (5)

   This article will briefly discuss the development of filial responsibility in the United States, the government programs that have displaced it, and its modern day application, including the ambiguity that creates problems for indigent elders' family members and care providers. (6) This article will outline the current long term care system, including its costs and the government and private programs that primarily assist consumers with these costs. (7) It will end by arguing that enforcement of filial responsibility unfairly targets the informal caregiving structure that is the backbone of today's modern long-term care system, which is why filial responsibility is unsustainable today. (8) Because the growing costs of long-term care have created, as some describe, "a national crisis" (9) in need of a solution, this article will end by proposing some solutions that support the informal caregiving system to create a more sustainable modem long-term care system. (10)

2. FILIAL RESPONSIBILITY LAWS: AN ANTIQUATED SYSTEM

   1. BACKGROUND AND EARLY DEVELOPMENT

      American filial responsibility laws are a derivation of laws like the Elizabethan Poor Act of 1601. (11) The Elizabethan Poor Act mandated that the "Father and Grandfather, and the Mother and Grandmother, and the Children of every poor, old, blind, lame, and impotent Person" support the person to the extent he or she is able. (12) No duty exists at common law requiring adult children to financially support a parent or to pay for a parent's care; this duty can only be created by statute. (13) States first created

      this duty hundreds of years ago. (14) A Pennsylvanian colonial law was one of the earliest American examples of these types of statutes and "authorized overseers of the poor to impose taxes with the intent of relieving 'poor, indigent and impotent persons." (15)

      Codification of filial responsibility began in earnest in the United States around the 1850's in states such as Iowa. (16) These statutory schemes provided for the care of certain groups, specifically the elderly. By the 1950's, at the height of their popularity in America, as many as forty-five states had some form of a filial responsibility statute. (17)

   2. FILIAL RESPONSIBILITY LAWS DISPLACED BY GOVERNMENT PROGRAMS

      When filial responsibility laws were passed in the United States, care for the elderly was usually provided informally by spouses and families, and not by institutions. (18) Filial responsibility laws were passed before medical advances (19) and pharmaceuticals (20) allowed individuals to live long after their minds and bodies had failed. They were passed when the United States' economy was agriculturally based and generations of families were stationary on the same family farm. (21) In addition, the life expectancy for the average American during this time was 49.2 years. (22)

      In America's infancy, care for the elderly who had no family and no resources was provided in "almshouses." (23) These institutions had reputations for poor care and horrible conditions. (24) In these early years, family members held responsible for the care of a parent based on filial responsibility were often liable only for the incidental costs necessary to ensure the indigent elder had food, shelter, or clothing. (25)

      Over time, the United States' economy shifted from agricultural to industrial based, and families became more transient. The elderly who were unable to do the physically taxing work of the new industrial economy were at an economic disadvantage. (26) Until the nationwide financial devastation of the Great Depression, the prevailing attitude was that families could and should care for their own elderly without regard for cost. (27) With the Great Depression, Americans began to acknowledge that the economy could inflict financial harm and dependency through no fault of the individual. (28)

      In 1935, the Social Security Act (29) was passed to provide elderly who had insufficient income with a "decent subsistence." (30) The Social Security Act made filial responsibility laws less popular by giving Old Age Assistance grants to retirees not living in "almshouses" and other public institutions. (31) The Social Security Act ensured the use of filial responsibility statutes was rarely a method individuals and government entities would utilize to provide care to indigent elders. (32)

      This national concern for support of the elderly continued in the United States after 1935. In 1965, Medicare, (33) a national system of health insurance for older adults, passed and ensured that America's elderly would have medical care. (34) When advocating for the passage of Medicare, President Johnson said Medicare was the logical extension of the Social Security Act as a safety net for the elderly and was to provide a "prudent, feasible, and dignified way to free the aged from the fear of financial hardship in the event of illness." (35) Medicare's extension of the federal safety net for the elderly continued to weaken reliance on filial responsibility statutes. (36)

      Medicare initially covered care in nursing homes but in 1969, the Department of Health and Human Services issued "Intermediary Letter 371" and terminated much of the nursing home coverage Medicare provided. (37) However, the costs of nursing home care were too much for families and individuals, and in 1972 Medicaid (38) began covering long-term care costs. (39) In making this decision, Congress was attempting to alleviate "the hardships" caused by forced payment of medical expenses and felt that it was "destructive and harmful to the relationships among members of the family group." (40)

      The changing attitudes of Americans and the passage of the Social Security Act, Medicare, and Medicaid, made filial responsibility obsolete as a means to care for elders in the United States. Now, filial responsibility laws are often viewed as an "archaic" part of our economy. (41) Twenty-eight states and Puerto Rico, an unincorporated territory, still have filial responsibility laws. (42) In twenty-seven of these states, there have been no appellate court decisions upholding a parental direct support order against an adult child in the past thirty or more years. (43) In 2011, the State of Idaho went even further and repealed its filial responsibility statute. (44) The repeal of Idaho's statute was based in part on the Idaho Attorney General's determination that filial responsibility was "inconsistent with federal [Social Security] law[s]" (45) in addition to being outdated and confusing. (46)

      Despite negative treatment and obsolescence, as the baby boomers age and their need for long-term medical care grows, interest in filial responsibility is increasing. (47) Advocates for filial responsibility believe states should expand enforcement of their individual filial responsibility laws (48) or the federal government should implement a federal filial responsibility scheme (49) to resolve the issues raised by the costs associated with a growing elderly population. However, this solution would undermine the utility of informal caregiving. In contrast to the original intent of filial responsibility laws, the laws are now being used by...