Nursing Homes and the Filial Responsibility Trap: Undermining Medicaid Planning

For families planning to safeguard assets through Medicaid planning, a cornerstone strategy is the use of an irrevocable trust to shield resources from the five-year lookback period, ensuring eligibility for long-term care without depleting savings. Yet, a recent New Jersey case, Bartley Healthcare, Inc. v. Ott (No. A-3336-23, N.J. Super. App. Div. Aug. 15, 2025), highlights a troubling trend: nursing homes seeking to enforce filial responsibility (FR) obligations, despite federal law and most states’ reluctance to impose such duties for long-term care costs. This approach threatens to undo careful Medicaid plans, particularly in states like Ohio with nominal FR statutes, and underscores the need for vigilance in elder law.

The Case: A Nursing Home’s Bold MoveRobert Ott resided at Bartley Healthcare, Inc., until his 2022 death. His daughter, Laura Curcione, acting under a power of attorney (POA), signed letters of responsibility during his admission and readmission, agreeing to manage his funds and pursue Medicaid approval for his care costs. She also signed an agreement to pay a balance due. After Robert’s Medicaid application faced a penalty from unappealed nonqualified transfers, allegedly due to Laura’s inaction, Bartley sued her for $19,669.74, claiming she breached her duty to secure full Medicaid coverage.
The trial court dismissed Bartley’s claim, ruling Laura’s POA ended at Robert’s death, leaving no estate liability, and citing New Jersey’s law (N.J. Stat. Ann. § 30:13-3.1(a)(2)) that bars nursing homes from enforcing payment guarantees against family members. Bartley appealed, arguing Laura’s contractual breach, not FR, triggered her liability. The New Jersey Superior Court reversed and remanded, faulting the trial court for lacking specific factual findings under N.J. Ct. R. 1:7-4. The appellate court didn’t uphold or dismiss based on state/federal law but sent it back for clarity on Laura’s contractual obligations versus statutory protections.Filial Responsibility: A Clash with Federal Law and State TrendsFederal law (42 CFR § 483.12) prohibits nursing homes from conditioning admission or continued care on a family member’s financial guarantee, aiming to protect vulnerable seniors and their families from undue burden. Most states, including New Jersey, align with this, refusing to enforce FR for long-term care or Medicaid-related debts—except a handful like Pennsylvania, where FR laws have been controversially applied (e.g., Health Care & Retirement Corp. v. Pittas, 2012, holding a son liable for $93,000). Ohio, technically an FR state under Ohio Rev. Code § 2919.21, relegates it to a criminal statute, applicable only when someone voluntarily assumes care duties (e.g., co-signing a lease), not as a default for nursing home costs or Medicaid recovery. Missouri similarly limits FR to criminal neglect, not civil liability for care debts.
Yet, Bartley shows nursing homes sidestepping this by framing FR as a contractual issue (e.g., Laura’s letters of responsibility). This tactic threatens families who’ve transferred assets to irrevocable trusts, common in Medicaid planning to meet the five-year lookback (42 U.S.C. § 1396p(c)), rendering those assets unavailable for Medicaid eligibility or estate recovery. If successful, Bartley could force Laura to repay from personal funds, unraveling her father’s plan and exposing her own assets.Undoing Medicaid Planning: The Practical ThreatMedicaid planning often involves placing assets (e.g., a home, savings) into an irrevocable trust five years before care needs arise, shielding them from the lookback and ensuring funds for aging in place (e.g., home modifications, caregivers at $4,000–$6,000/month). Nursing homes, facing funding gaps (e.g., Ohio’s $527M Medicaid shortfall in 2024–2025), may target family members to offset unpaid bills, especially when Medicaid penalties arise from unappealed transfers.

• How It Undoes Planning: If Laura loses, her personal assets could cover Robert’s debt, bypassing the trust’s protection. This sets a precedent for nursing homes to pressure POA holders into guaranteeing care, risking families’ financial security.
• Legal Loophole: The remand suggests the court isn’t rubber-stamping lower rulings but also didn’t rule on federal/state law (e.g., 42 CFR § 483.12 or N.J. Stat. Ann. § 30:13-3.1). Bartley’s contract argument, unaddressed here, could exploit gaps if facts favor their narrative.

What This Case DemonstratesThe remand signals judicial scrutiny, not blind approval, indicating the court seeks a robust factual basis to decide Laura’s liability. It’s not a dismissal based on federal preemption or New Jersey’s anti-FR stance, suggesting the outcome hinges on contract specifics (e.g., did Laura’s POA duty extend beyond death?). This ambiguity leaves families vulnerable, especially in FR-leaning states, and highlights nursing homes’ creative attempts to shift costs despite legal protections.Implications for Ohio and Missouri Families

• Ohio: Though FR is criminal (not civil), nursing homes might mimic Bartley’s strategy, targeting POA agents for “breach” of care agreements. Ensure trusts are ironclad and POA terms limit liability.
• Missouri: With no civil FR for care, the risk is lower, but contract pitfalls persist. Review admission agreements with an elder law attorney.
• Planning Tips: Use a Medicaid-compliant trust with a five-year lookback strategy. Register out-of-state POAs (e.g., Tennessee to Ohio) to avoid Norris-like disputes. Monitor Medicaid appeals to prevent penalties.

A Call to Action

Bartley warns of nursing homes undermining Medicaid plans with filial responsibility claims, even where prohibited. For aging in place, protect your legacy with a trust and legal counsel. For Medicaid planning, seek counsel that will provide ongoing representation to protect the plan- off-the-shelf trusts from online or seminar attorneys that only sell Medicaid trusts, leave you vulnerable.   

For more articles regarding filial responsibility and the efforts of states to circumvent state and federal protections, see the following: 

• Filial Responsibility Rule Means Son, Not Father, Must Pay Legal Bill for Negotiating Medicaid Penalty Reduction
• No Good Deed Goes Unpunished? Caregiver Exemption Does Not Apply When Medicaid Recipient Is Receiving Home Care
• Filial Support Laws Chaos: Pennsylvania and New Jersey Laws Clash
• Three Surprises to Watch Out for When Paying for Long-Term Care
• Maryland Repeals Filial Responsibility Law
• Filial Responsibility Laws Complicate Estate and Financial Planning
• Filial Responsibility In the News
• Filial Responsibility Laws Lead to Chaos
• Man Can't Challenge Discharge of Brother's Debt for Mom's Care under Filial Responsibility Law
• Use of Filial Responsibility to Collect a Nursing Home Debt Survives Federal Challenges
• Elderly Couple May Be Responsible for Adult Son's Unpaid Medical Bills
• California Heir Liable to Reimburse State for Mother's Medicaid Benefits
• Conveyance to Son Was Fraudulent, But His Siblings May Also Be Liable Under Filial Support Law
• Filial Responsibility- Complicating Estate, Retirement and Asset Protection Planning
• Pennsylvania's Filial Support Law Survives Federal Challenge (The Eades Case)
• Conveyance to Son Is Fraudulent, But Siblings May Also Be Liable Under Filial Support Law
• Adult Children Could Be Responsible for Parents' Nursing Home Bills
• Son Liable for Mother's Nursing Home Bill Under Filial Responsibility Law (The Pittas Case)

The following are links to articles describing legal mechanisms by which nursing homes attempt to create filial responsibility even in the absence of filial responsibility statutes: 

• Promissory Note Executed by Nursing Home Resident’s Daughter Is Not Illegal Third-Party Guarantee
• Filial Responsibility- Resident’s Son Not Liable for Breach of Contract Because He Did Not Cause His Mother to Be Ineligible for Medicaid;
• Judge Can Not Impose an ‘Unusual’ Condition on a Reversal of a Default Judgment in a Nursing Home Breach of Contract Lawsuit;
• Tortious Interference With Contractual Relationship Claim Most Recent Possible Remedy Nursing Homes can Employ Against Children of Nursing Home Residents;
• Conservator Owes Duty to Nursing Home to Timely Apply for Medicaid;
• Agent Under Power of Attorney Liable for Damages to Nursing Home for Breach of Contract;
• Conveyance to Son Was Fraudulent, But His Siblings May Also Be Liable Under Filial Support Law;
• Nursing Home May Sue Resident's Daughter for Breach of Contract.

Additional Resources: 

• Losing Loved Ones and Your Livelihood: Re-Evaluating Filial Responsibility Laws
• Filial Support Laws: “A Sleeping Giant”
• Filial Responsibility: Can the Legal Duty to Support Our Parents Be Effectively Enforced?
• A Rational Role for Filial Responsibility Laws in Modern Society?

HHS Drops Appeal on Nursing Home Staffing Rule: A Setback for Care Quality and a Boost for Aging in Place Planning

In a quiet but seismic shift for long-term care, the U.S. Department of Health and Human Services (HHS) has dismissed its appeals in two key federal cases challenging the Biden-era nursing home staffing minimums rule. Filed in the Fifth and Eighth Circuit Courts of Appeals, these dismissals, announced in late September 2025, effectively concede the rule's fate, leaving the sector without enforceable national standards. For Ohio and Missouri families committed to aging in place, this development underscores the urgency of proactive planning: while nursing homes grapple with understaffing risks, aging-in-place strategies can help safeguard independence and assets from institutional pitfalls.

Recapping the Rule and Its Rocky RoadAs we discussed in our April 2025 blog post, "Federal Judge Blocks Biden-Era Nursing Home Staffing Rule: Implications for Care Quality and Families," the rule, finalized by CMS in April 2024, aimed to mandate 24/7 registered nurse (RN) coverage and at least 3.48 hours per resident day (HPRD) of total nurse staffing in Medicare/Medicaid-funded facilities. Rooted in the Federal Nursing Home Reform Act (FNHRA), it sought to combat chronic shortages exposed by COVID-19, where understaffed homes saw hospitalization rates spike 20–30% higher and physical and chemical restraint use climb due to overburdened aides.
The rule faced immediate backlash from trade groups like the American Health Care Association (AHCA) and states like Texas, which sued in May 2024, claiming HHS overstepped its authority under the Social Security Act. U.S. District Judge Matthew Kacsmaryk's April 7, 2025, ruling in Texas vacated core provisions, calling them a "one-size-fits-all" overreach that ignored the realities of rural areas and the variations in acuity of residents. Similar blocks followed in the Eighth Circuit. HHS appealed both, but with mounting opposition, including from 20 additional states and projected facility closures of 10–15% in underserved areas, the agency has now withdrawn, signaling a pragmatic pivot amid political and fiscal headwinds.The Bigger Picture: Understaffing's Toll on ResidentsWithout federal minimums, the U.S.'s 15,000+ nursing homes, serving 1.2 million residents, 60% Medicaid-funded, revert to patchwork state oversight. Studies we cited earlier, like the 2021 Health Affairs analysis, link adequate RN staffing (0.75 HPRD) to 15–20% fewer hospitalizations and infections. A 2022 CMS report tied understaffing to elevated COVID mortality, while a 2019 Gerontologist study showed it doubled chemical restraint use—violations of FNHRA rights affirmed in the Supreme Court's Talevski decision (2023).
For families, this means heightened risks of neglect, pressure ulcers, falls, and emotional distress, amplifying the emotional and financial strain of facility care. In Ohio, where Medicaid's $527 million nursing home shortfall (2024–2025) already strains resources, the absence of national standards could exacerbate closures in rural counties, displacing residents and pressuring families toward costlier private-pay options ($100,000+/year).Elder Law Ramifications: A Crack in ProtectionsThis retreat leaves elder law attorneys navigating regulatory quicksand. Without binding federal floors, litigation for substandard care relies more heavily on state surveys (e.g., Ohio's biennial inspections) and facility-specific plans, tools that often fall short due to underreporting (57% of falls go undocumented, according to AHRQ). Families may lean on ombudsman programs, but these are overwhelmed, handling just 20% of complaints effectively.
Critically, the ruling disrupts Medicaid planning, where irrevocable trusts shield assets during the five-year lookback period (42 U.S.C. § 1396p(c)), thereby preserving eligibility without a spend-down. Understaffing could trigger more penalties or denials, forcing asset liquidation and undoing trusts, echoing cases like Bartley Healthcare v. Ott (N.J. Super. App. Div. 2025), where facilities targeted family POA holders for "breaches" in Medicaid pursuit. In Ohio, filial responsibility (R.C. § 2919.21) remains criminal and narrow, but nursing homes may exploit contracts to claw back costs, threatening protected assets.A Silver Lining: Reinforcing Aging in Place StrategiesAs we noted in April, this saga highlights why aging in place, with structured home and community care, is a resilient alternative to institutional care in facilities. With nursing homes facing 15–20% staff turnover and quality dips, families can pivot to rigorous home-based healthcare and, when necessary, utilize Ohio's PASSPORT waiver (available to applicants with income under $2,901/month in 2025) for in-home aides, thereby avoiding FNHRA gaps altogether. Pair this with Medicare Advantage plans' supplemental benefits (e.g., $100–$300/month flex cards for home mods) to fund grab bars or telehealth, delaying institutional needs, and a family has a toolbag of options necessary to avoid institutional care.
Elder law tip: Review trusts now to include home care contingencies, and document POA limits to shield against facility pressures. The Talevski precedent still empowers suits for FNHRA violations, such as undue restraints; use it proactively.Looking Ahead: Advocacy in Uncertain TimesHHS's dismissal highlights the tension between care ideals and workforce realities, potentially stalling reforms until 2026 or beyond. Practitioners must monitor the Federal Register for state waivers or CMS updates, while counseling clients on their rights under the remaining federal baselines (e.g., 8-hour RN coverage).
For Ohioans and Missourians, this is a call to fortify plans. Subscribe to our blog for updates on staffing litigation or virtual workshops (e.g., our recorded "Aging in Place Essentials" at bit.ly/Aging-in-Place-Workshop). Contact OSHIIP (1-800-686-1578) for Medicare guidance, and consult an elder law attorney to align trusts with home-focused care. Aging in place isn't just viable—it's essential when facilities falter. Let's build resilience together.

Consumer Alert from ODI: What Insurance Agents Can and Can’t Do During Medicare Open Enrollment

 

Agents are prohibited from making uninvited visits to homes and senior 

Medicare’s open enrollment period runs from Oct. 15 through Dec. 7, giving Ohioans on Medicare a valuable opportunity to review and compare their current coverage and explore Medicare plans for 2026.

During this time, insurance agents can be a helpful resource in understanding coverage options and navigating plan changes. Most agents follow the rules and act in their clients’ best interests. However, agents, consumers, and OSHIIP volunteers need to understand what agents can and cannot do during this period and to remain vigilant for those who may not be following the guidelines.

Agents should never visit individual residences or enter senior living communities without being specifically invited and having the invitation confirmed in advance. While agents play an important role in helping individuals make informed Medicare choices, unsolicited visits to homes or facilities are not permitted. In addition, it is illegal for anyone to pose as a representative of OSHIIP or Medicare. OSHIIP and Medicare do not send representatives to residences or facilities without a formal invitation.

Pro Seniors, Ohio’s Senior Medicare Patrol, created this flyer to help recognize, avoid, and report Medicare impersonators.