Thursday, May 24, 2012
Filial responsibility laws have sudden attention from the media, lawyers, maybe policy makers
When I wrote some blog posts on filial responsibility laws in July 2007 on this blog (which see), it was hard to find a lot of material about them online. I had written a similar piece on my doaskdotell.com site for the “Controversial Issues” page in 2005.
Today, it seems there is a lot of buzz (with a few references going back to 2008 or so), in the wake of the story about Mr. Pittas in Pennsylvania (May 22, 2012 here). I found about the case Tuesday morning, around 7 AM PDT or so in a motel in Mammoth Lakes, CA, ten minutes or so after turning on the cable TV to CNN upon getting up and bringing up my travel netbook for a little blogging. I thought, in this remote place, what an irony to hear the media discuss a dangerous but almost totally ignored and forgotten topic, and how lucky it was that telecommunications here at the motel were pretty good. I was supposed to be “on vacation” and away from civilization, handling the 8600 feet elevation. The night before, at a local pizza place and bar, I could fantasize about being a real-life Nolan Ross (after a time-machine transformation to make me 35 years younger). No, I’m not. I’m lucky that this didn’t happen to me. My own mother did have enough assets to pay for all her care, because my father had saved very conservatively for decades, and compound interest really works.
There’s a passionate piece about the case on Forbes by Carolyn Rosenblatt (“Could this happen to you?”), here The writer notes the way the nursing home took it upon itself to determine which adult child should pay, and to bypass the wait for Medicaid, which the court said it had every right to do. In fact, if the son pays, it would seem that perhaps he would not have the right to sue Medicaid unless he was himself indigent later and needed medical attention himself. The writer also correctly notes that this problem will only increase as medicine keeps people alive longer.
The Forbes article gets invoked by a short missive by Drew Nichols on “LTC Tree” (for long term care), called “Pennsylvania’s ‘Filial Responsibility Law’”, and Nichols writes “it seems kids want to reap the benefits of their parents and drop them at a government-paid nursing home when times get tough.”
That link is here. The comments are provocative. A reaction called “Responsibility vs. autonomy” by Robert Seed rather expresses a lot of my thinking. “In a society where autonomy rules, we need to take responsibility not only for ourselves, but for our family.”
True, but what is striking here is the role of choice (or “The Axiom of Choice”, for mathematicians). You can “choose” whether to have children (or have sexual acts that can produce children), or whether to get married. (The recent legal and political debate about gay marriage only intensifies these points.) You can’t choose your parents, or siblings. (In a few states, filial responsibility even extends to siblings). You can’t really “choose” your family completely.
There are other parallels to this sort of idea that the current generation has forgotten. A few decades ago, men couldn’t legally “choose” to avoid the risk of military service, either.
Back in 2007, a couple people warned me that my blogging about this issue might even tempt nursing homes and states into trying to enforce the laws! Then, almost nobody talked about it. Like a forgotten law on the books is going to be overlooked forever until somebody says “I told you so.” (Remember that aspect of sodomy laws?) But that’s one aspect of the “open” Internet, even the pre-Facebook Web 1.0 world. One person can call attention to an issue, and it can go viral and blast off.
Another friend told me that if the problem comes up, appeals courts, and maybe the Supreme Court, would find filial responsibility laws unconstitutional, as violations of the “takings clause” or of due process. But if that’s so, why was the military draft allowable?
Of course, the life insurance and financial planning industry will say that filial responsibility laws make the case for buying Long Term Care insurance, when the parents are young and healthy enough for reasonable premiums. But what if they are frail for some reason when relatively young? Imagine how the rapid increase in Alzheimer's disease, expected to skyrocket with longevity, would interact with filial responsibility laws.
Overseas, China is wrestling with all this, and ponders similar laws, including a provision that adult children actually visit their parents. (In oriental countries, the notion is called “filial piety”.)
Actually, there have been some other cases in Pennsylvania, such as one in 2009 with case of Don Grant in Haverton, PA, such as in a column by Grimes Legal (“Legally Speaking”) here.
Elder-law Lawyers has a summary column, posted in the summer of 2011, giving legislative references to filial responsibility laws in Pennsylvania, Indiana, Ohio, California, Rhode Island, and Utah. In Utah, people can be pursued for siblings’ bills, possibly because of the procreation-friendly Mormon influence in the state. The title of the column is “You May Have to Pay for Your Parents’ Care”, link
Generally, adult children get powers of attorney assigned to them to give them the authority they need. Even with money, tricky legal issues can come up, such as with negligence (Adult Protective Services), and the way caregivers are hired and handled. It’s likely that the practice of home health agencies in hiring caregivers as “independent contractors” will soon face legal challenge. That could further complicate the legal obligations of adult children.
Philosophically, elder care and filial responsibility as a lot about the way our culture defines choice and personal responsibility. The concept of filial responsibility could be seen as penalizing childlessness and encouraging the Catholic idea of openness to having children or being prepared to help raise other people’s children as a part of a more general, universal idea of family responsibility. (In fact, you could make a corollary argument that a childless person should be required to carry Long Term Care insurance.) It certainly should be significant in the gay marriage debate. Yet, fifty years ago (before Medicare) nobody would have questioned all this!
Will Obama and Romney take up this issue in the 2012 presidential campaign? True, it's up to the states, legally. But it's a national problem.