Journal of Gerontological Nursing

RELATIVE RESPONSIBILITY LAWS AND THE MEDICAID LAW

Clara M Long, DNSc, RN

Abstract

In February 1983, the Department of Health and Human Services published a transmittal in the Medicaid Manual which contained the provision that states may require adult family members, children or other relatives, to provide financial support to adult relatives under statutes of general applicability.1 This action was apparently initiated by an inquiry from the Indiana Attorney General concerning the enforcement of that state's Relative Responsibility statutes with regard to Medicaid recipients.2

Publication of the transmittal provided renewed momentum for the action of recent years directed at resurrecting and enforcing the Relative Responsibility statutes already a part of many state statutes, but largely ignored in numerous states. Although the "real" purpose was to provide some means to supplement the drain on the public purse brought about by rising costs of nursing home care, the implied (and in some instances, stated) purpose was to enhance family relationships by extending to relatives the opportunity to provide monetary support for elder family members.

Historical Aspects

On a moral level, Relative Responsibility is traced to the Biblical injunction to "Honor thy father and thy mother that thy days may be long upon the land which the Lord Thy God Giveth Thee" (Exodus 20:12). However legal responsibility of relatives did not appear until 1597. 3 It became an integral part of legislation as a part of the 1601 Elizabethan Poor Law which was a culmination of almost three centuries of English governmental efforts to deal effectively with problems of the poor. It was a part of the overall system of labor controls designed to build on and supplement existing charitable programs and established the principle of public responsibility for the destitute.4

The poor law was not only a law about the poor, it was a law of the poor which , in dealing with a condition , governed a class. It was not designed to solve causes and problems, but to minimize the cost to the public of maintaining the destitute. An excerpt from the 1601 statute specifying the legal responsibility is shown in Figure 1.

Administration of the Poor Law, however, was based on a philosophy that it was a "natural duty" for children to be affectionate to their parents and repay them by providing support. Therefore, since the provision of public funds was likely to "undermine" family relationships, any funds or relief offered were deliberately designated to maintain the state of destitution.5 Such a philosophy continued well into the Victorian period and is reflected in an excerpt from the 1834 Poor Law Commission and which was also cited favorably in 1909 (see Figure 2).

In England, the idea of a pension as an entitlement in old age for whatever contribution a citizen had made during his working life surfaced in 1890 but was met with strong resistance and rejection by dominant groups. There were even advocates who wanted to abolish what was called "outrelief" in order to "restore relationships to the condition which God intended for them."5 The argument continues, "If relatives do not contribute voluntarily we think the parents ought to suffer, and we offer the house, and, if the house is accepted, then, and not till then, do we put the law into force." The house referred to is the workhouse, also kept deliberately undesirable to protect the public purse.

The 1601 enactment date of the Elizabethan Poor Laws assumes additional relevance when one realizes that it occurred six years before the settlement at Jamestown, 19 years before the landing at Plymouth, and 63 years before the English conquest at New York.4 It should come as no surprise to learn that they…

In February 1983, the Department of Health and Human Services published a transmittal in the Medicaid Manual which contained the provision that states may require adult family members, children or other relatives, to provide financial support to adult relatives under statutes of general applicability.1 This action was apparently initiated by an inquiry from the Indiana Attorney General concerning the enforcement of that state's Relative Responsibility statutes with regard to Medicaid recipients.2

Publication of the transmittal provided renewed momentum for the action of recent years directed at resurrecting and enforcing the Relative Responsibility statutes already a part of many state statutes, but largely ignored in numerous states. Although the "real" purpose was to provide some means to supplement the drain on the public purse brought about by rising costs of nursing home care, the implied (and in some instances, stated) purpose was to enhance family relationships by extending to relatives the opportunity to provide monetary support for elder family members.

Historical Aspects

On a moral level, Relative Responsibility is traced to the Biblical injunction to "Honor thy father and thy mother that thy days may be long upon the land which the Lord Thy God Giveth Thee" (Exodus 20:12). However legal responsibility of relatives did not appear until 1597. 3 It became an integral part of legislation as a part of the 1601 Elizabethan Poor Law which was a culmination of almost three centuries of English governmental efforts to deal effectively with problems of the poor. It was a part of the overall system of labor controls designed to build on and supplement existing charitable programs and established the principle of public responsibility for the destitute.4

The poor law was not only a law about the poor, it was a law of the poor which , in dealing with a condition , governed a class. It was not designed to solve causes and problems, but to minimize the cost to the public of maintaining the destitute. An excerpt from the 1601 statute specifying the legal responsibility is shown in Figure 1.

Administration of the Poor Law, however, was based on a philosophy that it was a "natural duty" for children to be affectionate to their parents and repay them by providing support. Therefore, since the provision of public funds was likely to "undermine" family relationships, any funds or relief offered were deliberately designated to maintain the state of destitution.5 Such a philosophy continued well into the Victorian period and is reflected in an excerpt from the 1834 Poor Law Commission and which was also cited favorably in 1909 (see Figure 2).

In England, the idea of a pension as an entitlement in old age for whatever contribution a citizen had made during his working life surfaced in 1890 but was met with strong resistance and rejection by dominant groups. There were even advocates who wanted to abolish what was called "outrelief" in order to "restore relationships to the condition which God intended for them."5 The argument continues, "If relatives do not contribute voluntarily we think the parents ought to suffer, and we offer the house, and, if the house is accepted, then, and not till then, do we put the law into force." The house referred to is the workhouse, also kept deliberately undesirable to protect the public purse.

The 1601 enactment date of the Elizabethan Poor Laws assumes additional relevance when one realizes that it occurred six years before the settlement at Jamestown, 19 years before the landing at Plymouth, and 63 years before the English conquest at New York.4 It should come as no surprise to learn that they were incorporated, almost intact, into the laws of the colonies and picked up by most of the new states as western settlement progressed.

In the United States there was minimal use of the laws during the 18th and 19th centuries.3 During the 1930s depression there was opportunity to apply them in conjunction with the Old Age Assistance Act (OAA). Although 36 states had the laws in place, they were subjected to professional attacks, neglected, and found difficult to administer.

At the close of World War II, there was renewed interest due to increased public assistance costs, but a decline in the number of states with laws in place. Due to repeal the number was down to 27 states in 1975. In 1974, OAA was replaced by Social Security Insurance (SSI), a federally administered program with no provision for requiring financial support from adult children.

Table

FIGURE 1EXCERPT FROM ELIZABETHAN POOR LAW OF 1601

FIGURE 1

EXCERPT FROM ELIZABETHAN POOR LAW OF 1601

Current Legislative Approaches

Renewed interest generated by the Medicaid transmittal of 1983 led to the reconsideration and development of quite a few state plans and also brief implementation of several plans. Two plans which attracted the most attention will be briefly discussed.

In 1977, Massachusetts developed a plan under which resident adult children with taxable incomes over $20,000 would be required to contribute to the cost of nursing home care for parents receiving Medicaid.6 A sliding scale was developed for incomes from $20,000 to $50,000. Those children with annual taxable incomes over $50,000 would be required to pay the entire charge for nursing home care. The plan did not condition Medicaid eligibility on payment by the recipient's adult children.

In spite of HCFA (Health Care Financing Administration) objections, the Secretary of HEW (Health, Education and Welfare) gave conditional approval to the plan in July 1978. Extensive legislative review detailed numerous problems in implementation and raised questions about constitutionality. Cost analysis revealed that the expected income from the plan would be less than one-half of 1% of the state expenditures for Medicaid recipients. For these reasons the Massachusetts Department of Public Welfare in 1979, asked that the bill to establish the enabling legislation be withdrawn.

Different activity occurred in Idaho where a voluntary Medical Assistance Act became effective in January 1982. 2 It was estimated that this fund, to which relatives of nursing home residents and other interested people could make voluntary contributions, would receive $500,000 in its first year. In fact, it received only $14,000 which included $3000 contributed by the Chairman of the State Senate Health, Education and Welfare Committee and his family. The state then enacted a Family Responsibility Law requiring payment from responsible relatives and authorized the pursuit of reciprocity with other states having similar regulations.

Final regulations were adopted in September 1983 and implementation ensued. However, in March 1984, the state's Attorney General concluded that the law was inconsistent with the Medicaid statute. Enforcement of the law was suspended and repayment was offered to the families who had paid when assessed.2

Medicaid is a program of welfare benefits created by amendments to the Social Security Act in 1965 and which is administered by the states. Analysis of the transmittal published in 1983, which contained the provision that states may require adult family members, children or other relatives, to provide financial support to adult relatives, reveals several inconsistencies with the Medicaid statute.2 The federal statute states that state plans must include reasonable standards for imposing eligibility and that financial responsibility (including later collection for assistance paid) for any applicant or recipient will be limited to the spouse for spouse and to parents for children under age 21.

Furthermore, it requires that the state plan have general applicability. That is, that it cannot target Medicaid recipients only, and that the income or resources from relatives be used to determine eligibility, not to reimburse the state for payments made. However, eligibility also cannot be contingent upon expected contributions from relatives. These statute stipulations, further reinforced by excerpts from Senate Finance Committee meetings, court opinions, and Congressional deliberations as cited in the Nursing Home Law Letter series from February 1982 to February 1983, constitute primary reasons why the state plans, although elaborately designed, have not succeeded.

Noncompliance of state plans with required certification of protection of human subjects constitutes another significant concern. The certification requirements, recorded in 1978, include review of a proposal by an Institutional Review Board and compliance with specific regulations. In 1982, Mississippi submitted a demonstration proposal to impose family supplementation requirements on all Medicaid nursing home residents. Data collected concerning utilization, cost and impact on recipients would be compared to similar data collected prior to imposing family supplementation.

Furthermore, a waiver was requested on the requirement concerning the Protection of Human Subjects by checking the statement that "No individuals who might be considered human subjects - would be involved in the proposed activity" and that an Institutional Review Board had determined that human subjects would not be at risk.2 The proposal contradicted both the intent and the letter of the certification requirement.

Legislative approaches have ranged from state plans calling for voluntary contributions (defeated in Washington and unsuccessfully implemented in Idaho) to creation of criminal penalties for children who foil to contribute (part of Virginia law and seriously considered, but not enacted in Indiana).2 Aside from the inconsistencies with the federal statutes, other reasons the plans have not succeeded include: a) lack of demonstrated cost effectiveness such as that reported in the Massachusetts plan; b) opposition from the legal profession, Civil Liberties Union, Aging organizations and nursing home residents to name just a few; and c) overwhelming difficulties in implementation.

The Nursing Home Law Letter of April 1982 provides a list of questions to be considered in analyzing Relative Responsibility proposals plus strategies and actions for opposing them. Major points made in these publications will be highlighted by four statements of fallacy and two statements of truth that reflect philosophic positions of that publication regarding Relative Responsibility legislation.

Fallacies, Facts and Thiths

Fallacy #/: Nursing homes are repositories for elders abandoned by their families.2

Facts: About 5% of the elderly reside in nursing homes. This is an increase from 4% in 1966 which is wholly attributable to increases in the total aging population.7 Families, particularly female members, remain the principal caregivers for the approximately 80% of frail, noninstitutionalized elderly needing such assistance.8·9 Additionally, many nursing home residents have outlived their families. In a 1976 survey report it was found that while 91% of residents have relatives, only 55.5% have a living son or daughter. 10

Fallacy #2: Residents of nursing homes are the parents of young, actively employed, adult children within the higher income bracket.2

Facts: The median age of nursing home residents in 1979 was 81 years.11 Since parents and children age together, the likelihood that children are facing retirement with fixed incomes and issues concerning their own aging is great. Information from national data sources also suggests that the number of elderly nursing home residents with children who have annual incomes over $20,000 is 7% to 10%.

Since these statistics include private pay residents, the figure for Medicaid residents is likely to be less.12 Willingness of many families to contribute toward financial assistance when able to do so is reflected by evidence that half of the Medicaid recipients began their residency as private pay and converted to Medicaid assistance only after exhausting personal financial resources.13

Table

FIGURE 2EXCERPT FROM POOR LAW COMMISSION OF 1834

FIGURE 2

EXCERPT FROM POOR LAW COMMISSION OF 1834

Fallacy #3: Requiring filial support strengthens kinship ties.2

Facts: This belief fails to acknowledge the strain that financial dependency imposes on the parent/child relationship and the resultant feelings of guilt, hostility, and resentment.3 It also fails to acknowledge the effects on adult children such as foregoing an advanced education, curtailing spending on one's own family or preparing for one's own retirement. Documentation that this is not just a 20th century phenomenon can be found in historical analysis of the periods encompassing the Elizabethan and Victorian Poor Laws.5·14

Fallacy #4: Relative Responsibility laws save public money.

Facts: As cited with the Massachusetts experience, the administrative costs of collecting money from responsible relatives has not been justified by the income. Furthermore there is no reason to believe that savings, if they do occur, come about because the circumstances deter the elders and their families from seeking assistance.3

Truth #l: Relative responsibility laws perpetuate poverty.2

Fact: The imposition of liability, in many cases, interferes with whatever potentialities for self advancement that may have been present and help to assure poverty for future generations.3

A graphic example comes from a Pennsylvania study of Old Age Assistance actually done in 1958 but reported in 1978 dollars. Half of the support collected by the commonwealth came from children with family incomes of less than $5400 per year. No contributions were collected from any child with an annual income of more than $12,000.7

Truth #2: Filial responsibility laws may be unenforceable.2

Facts: Reasons in addition to those already given include: a) State Medicaid agencies cannot require applicants and recipients to name their adult children; b) Medicaid regulations explicitly prohibit the collection of reimbursements; and c) State Medicaid agencies cannot give information about the children of recipients to other state agencies.

Conclusions

Efforts to enact Relative Responsibility statutes reflect the desperation on the part of state governments to cope with the economic consequences of what Gruenberg16 labels the failures of success. His thesis is that technological innovations used in disease control have raised the prevalence of certain diseases and disabilities by prolonging their average duration. As a consequence, persons suffering from chronic diseases get more than an extension of life. They also get an extension of disease and disability which has imposed an overwhelming and unprecedented demand on the public purse.

"HONOR THY FATHER AND THY MOTHER"

"HONOR THY FATHER AND THY MOTHER"

These circumstances are further compounded by the demographic revolution described by Pifer and Bronte17 as "squaring the pyramid." Increased longevity has resulted in a rapid growth of older and very old persons. They report that the proportion of people age 65 and over has grown from 8% to 12% during the past 35 years and is expected to reach 17% in the next 35 years. This is accompanied by a simultaneous decline in the proportion of young people. In the 180Os, half of the population was made up of children under the age of 16. This declined to 35% of the population in 1900, 25% in 1940, rose to 31% in 1960, and is currently about 22% of the population.

It becomes increasingly apparent that enforcement of Relative Responsibility laws is not a viable means of meeting the increasing health-care costs and extended long-term care needs of our nation's elderly. They have been found unconstitutional in some instances, difficult to implement in others, and to impose administrative costs that would nullify anticipated cost benefits. Continued surveillance and opposition by advocacy groups such as aging organizations, coupled with the changing ratio of younger, gainfully employed and tax -paying population to the rapidly increasing older population will, hopefully, curtail any renewed efforts directed toward legislating relative responsibility for elderly family members.

Support of the aged is an issue that is distorted by the myth that young people in the 18th and 19th centuries felt a voluntary duty to their elders which arose out of a sense of gratitude or obligation. According to Schorr:7

"Only in the 20th century did the idea achieve wide currency that an adult child should sacrifice his own, his wife's and his children's resources to assist his parents before the community would assume responsibility. The idea lost ground programmatical Iy in the 1960s but survives about a golden age that never was."

References

  • 1 . Department of Health and Human Services: Treatment of contributions from relatives to MedicakJ applicants or recipients. Pan 3Eligibility. Transmilial No 2 3812, 1983 (February). Washington. DC: Medicare and Medkaid Guide (CCHO 32,457: 1983).
  • 2. National Senior Citizens Law Center. Relative responsibility. The Nursing Home Law Letter 1982-1984. Washington. DC.
  • 3. Lopes JL: Filial support and family solidarity. Pacific Law Journal 1985; 62}:508-535.
  • 4. tenBroek J: California's dual system of family law: Its origin, development, and present status. Stanford Law Review 1964; 16:257.
  • 5. Anderson M: The impact upon family relationships of the elderly of changes since Victorian limes in governmental income-maintenance provision, in Shanas E, Sussman M (eds): Family, Bureaucracy and the Elderly. Durham, NC, Duke University Press, 1977, pp 36-59.
  • 6. Acford JP: Reducing Medicaid expenditures through family responsibility: Critique of a recent proposal. Am J Law Med 1978; 5(l):59-79.
  • 7. Schorr A: Thy father and thy mother - a second look at filial responsibility. USDHHS Social Security Administration Publication N 13-11953. Washington, DC, US Govt Printing Office, 1983.
  • 8. Brody EM: "Women in the middle" and family help to older people. Gerontologisl 1981; 21(5):471-478.
  • 9. Shanas E: Social myth as hypothesis: The case of family relations of old people. Gerontologist, 1979; 19(l):3-9.
  • 10. Comptroller General. Entering a nursing home . . . costly implications for Medicaid and the elderly. United States 1979: PAD-80-12.
  • 11 . The National Nursing Home Survey: 1977 Summary of the Untied States. National Center for Health Statistics, US Department of HEW Pub No (PHS) 79-1974: 1979.
  • 12. Callahan JJ, Diamond LD, Giele JZ, et al: Responsibility of families for their disabled elders. Health Care Financing Review 1980; K3):29-48.
  • 13. Long-Term Care for the Elderly and Disabled. Washington, DC, Congressional Budget Office, 1977.
  • 14. Garrett WW: Filial responsibility laws. Journal of Family Law 1979-80; 18(4):793-818.
  • 15. Gruenberg E: The failures of success. Milbank Mem Fund Q 1977; <Winter):3-24.
  • 16. Pifer A, Bronte DL: Introduction: Squaring the pyramid. Daedalus 1986; 115(1):1-11.

FIGURE 1

EXCERPT FROM ELIZABETHAN POOR LAW OF 1601

FIGURE 2

EXCERPT FROM POOR LAW COMMISSION OF 1834

10.3928/0098-9134-19880701-04

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