Recently, I have been asked a number of times if a family member is responsible for the costs of nursing home care of another family member. Last year, it was reported that a son in Pennsylvania was sent a $93,000 bill for his mother’s nursing home stay for rehabilitation following a car crash. The mother had applied for Medicaid, which would normally pay the bill if she could not. However, the application was delayed, and the nursing home sued her son for the bill. Pennsylvania, like 29 others, has a filial responsibility law, requiring spouses and children to support their indigent family members. Rarely enforced in the past, these laws have been making a comeback by nursing homes seeking payment for services.
States with filial responsibility statutes take a variety of approaches. Twenty-one (21) states use civil suits to obtain financial support (or cost recovery). Twelve (12) states impose a criminal penalty for filial nonsupport; and three (3) states have both civil and criminal laws. Many states limit a child’s liability depending upon certain conditions, such as if the adult child has income deemed sufficient to contribute, if the child’s financial circumstances change, or if the child was abandoned or deserted by the parent.
In the Pennsylvania case, the nursing home decided to enforce the law rather than seek payment from Medicaid. The Pennsylvania trial court and appeals court found for the nursing home and, astonishingly enough, noted that the nursing home did not have to wait for the Medicaid claim to be resolved. Moreover, the court found that the nursing home could choose any family member it wanted to when seeking payment for the bill.
Massachusetts General Laws Ch. 273, Section 20, is Massachusetts filial responsibility statute. This statute makes it a crime for a child of “sufficient means” to refuse “to provide for the support and maintenance of his parent.” It appears that this statute has not been enforced in quite some time; however, the penalties of possible imprisonment for up to one year should be cause for concern.
Furthermore, Massachusetts has a statute that puts the burden for paying for nursing home costs squarely on the spouse. Massachusetts General Laws Ch. 209, Section 1, provides an avenue for nursing homes to seek payment because the law provides that a husband or wife is liable for the cost of “necessaries” furnished to the spouse without limitation. This is known as the “Doctrine of Necessaries.”
This issue was raised just about a year ago. In Emerson Village, LLC v. Jode, et al (Curran, J.) (Middlesex Superior Court) (Docket No. 12-CV-1736-F) (Dec. 15, 2012) a Watertown, nursing home was successful in bringing suit against a widow for payment for the care the facility provided her late husband. The deceased husband moved into the nursing home in April 24, 2010. He initially had private health insurance, which ended approximately 45 days after admittance. For the next 22 months, until the husband died, the nursing home provided skilled nursing care, but was not paid. A Medicaid application was submitted for the husband, but it was rejected on separate occasions for failure to provide documentation required to determine eligibility. The nursing home eventually sued the wife for payment arguing that she is legally liable for the cost of her late husband’s care.
While the statute does not define the term “necessaries,” the Court found that it did include care provided by the nursing home. The Court reserved the question of “exactly what services constituted necessaries and the valuation of those services” for a jury to determine at trial.
Typically, the threat of suit has been sufficient to cause surviving spouses to pay the nursing home for uncovered costs; therefore, there are not many court cases on the subject. Nursing homes will surely find strength in this decision and may choose to pursue legal action when unpaid. Moreover, this case should act as a warning to family members of nursing home residents (i) to timely file and pursue Medicaid applications, and (ii) to understand that strategies involving simply not paying are unadvisable.