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A History of Familial Responsibility
Jan L. Warner & Jan Collins

Since our mention of "family responsibility" laws a month or so ago, we have been inundated with requests for more information from our readers throughout the United States and from some of the newspapers which carry this column. Also called "filial responsibility," these laws require children to provide support to their parents under certain circumstances. In effect, these laws are child support in reverse.

Although 29 states have family responsibility laws on the books today, the genesis of laws requiring mutual obligations between family members goes back thousands of years to ancient Rome where such laws were enacted to strengthen family bonds.

Based upon the underlying principle that children have a moral duty to support their parents, the English enacted the Poor Relief Act in the early 15th century. This law required economically capable parents, grandparents, and children to provide for indigent family members.

In the United States, similar laws were enacted by a number of states as early as the 1800’s. However, as our society has become more mobile, as more children have left parents to strike out on their own, and as the definition of "family unit" has changed, the application of these laws was narrowed by excluding grandparents and grandchildren from legal liability for the support of their relatives.

The passage of The Social Security Act of 1935 brought with it a major shift away from family responsibility and toward governmental assumption of these family obligations. This shift became even more pronounced in 1965 with the passage of the Medicaid laws that prohibit states from considering the financial ability of the applicant's family -- other than the spouse -- when awarding benefits.

Today, to the extent their care exceeds their ability to pay, indigent parents have become the responsibility of federal, state, and local governments. Today, inflation, spiraling health care and drug costs, and a ballooning elderly population have made a big dent in the federal and state Medicaid budgets. But, at the same time, families are also bearing much of the burden for long-term care. For example, when parents are still able to live at home, family members provide unpaid care and pay out-of-pocket for sitters, home care, and other needs which are not covered by either the public programs or private insurance.

Under current federal law, nursing homes cannot ask Medicaid beneficiaries or their family members to pay more than the Medicaid reimbursement rates for covered services. Nursing homes are also prohibited from asking family members or other individuals to guarantee private payment as a condition of admission or continued stays for a nursing home resident eligible for Medicaid.

The application of various family responsibility laws varies from state to state: In some, a child's obligation to a parent is limited to the parent's "necessities"; in others, the support obligation is enforced through criminal penalties; and in still others, there are exceptions to a child's liability for parental support – for example, if he or she was abandoned as a child.

In determining a child's ability to pay, the courts have traditionally considered a number of factors, including the child's own family support needs; however, in the final analysis, the amount a child will be required to pay to support a parent is within the court's discretion -- much like setting child support.

The 29 states which hold adult children responsible for medical services other than nursing home care are listed on our Website at www.nextsteps.net under “Resources.” Through these laws, adult children could face liability for their parents' nursing home care at private pay rates -- about 35 percent higher than Medicaid reimbursement rates. In addition, nursing homes often charge private-pay patients additionally for incontinence care, bedsore care, laundry, hand-feeding, turning and positioning, all of which are included in the Medicaid
reimbursement rate.

Given the alternative of potential financial ruin of parents and children in the long-term care setting -- which we today predict will be intertwined in the long-term care process in the foreseeable future, quality long-term care insurance becomes not only more attractive, but, in fact, a necessity.




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  • 29 States That Enforce Family Responsibility



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