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New Medicaid Law Means Adult Children Could Be on Hook for Parents' Nursing Home Bills

The adult children of elderly parents in many states could be held liable for their parents' nursing home bills as a result of the new Medicaid long-term care provisions scheduled to be voted on by the House of Representatives February 1. The children could even be subject to criminal penalties.

The 750-page Deficit Reduction Act of 2005 includes punitive new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care. Essentially, the proposed law attempts to save the Medicaid program money by shifting more of the cost of long-term care to families and nursing homes.

One of the major ways it does this is by changing the start of the penalty period for transferred assets from the date of transfer, as is the case now, to the date when the individual would qualify for Medicaid coverage of nursing home care if not for the transfer. In other words, the penalty period would not begin until the nursing home resident was out of funds, meaning there would be no money to pay the nursing home for however long the penalty period lasts.

If the law passes, nursing homes will likely be flooded with residents who need care but have no way to pay for it. In states that have so-called "filial responsibility laws," the nursing homes may seek reimbursement from the residents' children. These rarely-enforced laws, which are on the books in 30 states, hold adult children responsible for financial support of indigent parents and, in some cases, medical and nursing home costs.

For example, Pennsylvania recently re-enacted its law making children liable for the financial support of their indigent parents. Jeffrey A. Marshall, an ElderLawAnswers member attorney in Williamsport, Pa., says the new Medicaid law could trigger a wave of lawsuits involving adult children.

"Litigation between nursing homes and children is likely to flourish," Marshall writes in the Jan. 20, 2006, issue of his firm's Elder Care Law Alert. "Nursing homes will sue children who will counter-sue for sub-standard care."

According to the National Center for Policy Analysis, 21 states allow a civil court action to obtain financial support or cost recovery, 12 states impose criminal penalties for filial nonsupport, and three states allow both civil and criminal actions.

The Senate passed the bill containing the new transfer provisions before Christmas, with Vice President Dick Cheney casting the tie-breaking vote. However, procedural moves by Senate Democrats require the House to vote on the bill a second time after having passed it by a 212-206 margin at the end of an all-night session.

Those who are concerned about the impact of this bill, S. 1932, on them or their loved ones may want to make their concerns known to their congressional representative. For contact information for your congressperson, go to: http://www.visi.com/juan/congress/

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