¹ DPW submitted the “Family Responsibility Plan” to HEW for approval on May 27, 1977, pursuant to the waiver provision of the Social Security Act, § 1115, 42 U.S.C. § 1315 (1976); Massachusetts application for waiver number 11-P-90613/1-01, entitled Family Responsibility Plan, to HEW (May 27, 1977).

² Social Security Act, §§ 1901-1910, 42 U.S.C. §§ 1396-1396i (1976). The Medicaid program is designed to provide medical care to the indigent. Each state establishes and implements its own plan, with the federal government financing at least half of the cost. Medicaid pays for the long-term nursing care of the medically needy in intermediate and skilled nursing-home facilities. Payment for such care constitutes nearly 40 percent of total Medicaid expenditures. U.S. Dep't of Commerce, Bureau of Census, Statistical Abstract 349 (1978).

³ Waiver application, supra note 1, at 1. The Family Responsibility Plan, proposed in the waiver application, contained a statement of purposes. See text accompanying notes 18-19 infra.

⁴ Rosenbaum, Are Family Responsibility Laws Constitutional? 1 Fam. L.Q. 55 (1967)Google Scholar.

⁵ Id.

⁶ Social Security Act, §§ 1901-1910, 42 U.S.C. §§ 1396-1396i (1976).

⁷ Social Security Act, §§ 1801-1880, 42 U.S.C. §§ 1395-1395qq (1976). Medicare was enacted as a federal health insurance program for the aged and disabled. Under Medicare, a beneficiary is reimbursed for up to 100 days of treatment in a skilled nursing home immediately after hospitalization. Id. at § 1395d(a)(2). Since payment for nursing-home care constitutes only 2 percent of total Medicare reimbursements, 1978 U.S. Dep't of Commerce, Bureau of Census, Statistical Abstract 347, the imposition of financial responsibility on adult children for their Medicare recipient parents has not been advocated as a means of reducing federal Medicare expenditures.

⁸ Social Security Act, § 1902(a)(17), 42 U.S.C. § 1396a(a)(l7) (1976).

⁹ The Massachusetts family responsibility law, Mass. Ann. Laws ch. 118A, § 2A (1965), which required adult children to contribute to the support of their parents, was repealed by the Act of Dec. 12, 1973, ch. 1210, § 23 (1973).

¹⁰ Social Security Act, § 1115, 42 U.S.C. § 1315 (1976).

¹¹ Id.

¹² 42 C.F.R. § 435.602 (1978); 42 C.F.R. § 436.602 (1978).

¹³ The fact that the assessment is based on taxable income is significant, because taxable income is substantially lower than adjusted gross income. For instance, taxable income of $20,000 is equivalent to estimated adjusted gross income of $28,250; taxable income of $30,000 is equivalent to $40,748 adjusted gross income; $40,000 to $53,380; and $50,000 to $66,000. See Waiver application, supra note 1, Exhibit 2.

¹⁴ Waiver application, supra note 1.

¹⁵ DPW included the following schedule of payment as Exhibit 1 in its waiver application:

Id.

¹⁶ Id. at 4. DPW would continue to make Medicaid payments to nursing homes regardless of whether adult children contribute to their parents’ support. The children's contributions would be made to the Commonwealth, not the nursing homes, and DPW would be responsible for collecting the money. Surprisingly, DPW does not believe compliance would be a major problem; therefore, no enforcement mechanism was included in the Plan. Id. at 5.

¹⁷ Rosenbaum, supra note 4, at 55.

¹⁸ Waiver application, supra note 1. DPW projected costs of implementation and administration at $560,000; it estimated savings of $2,500,000 to $3,500,000, representing one-half of one percent of the state Medicaid budget. Id. State Medicaid expenditures probably would be reduced both directly, by the adult children's payments, and indirectly, by the children's pressure on their parents to choose alternatives to nursing-home care. Since the potential savings are only a small percentage of total Medicaid expenditures, the Plan might have been designed primarily for its political and symbolic impacts; the public's perception of the Plan could be that it would reduce Medicaid fraud, particularly fraudulent transfers of assets by the elderly to their children in order to qualify for Medicaid.

¹⁹ Id. at 1.

²⁰ Letter from Joseph Califano to Alexander Sharp, then Commissioner of DPW (July 3, 1978). The conditional approval will become final when the specific terms and conditions, see notes 22-25 infra, are fulfilled.

²¹ The waiver application was initially rejected by Robert Derzon, then Administrator at HCFA (the division of HEW that oversees the Medicaid and Medicare programs). Mr. Derzon stated that the Plan “was potentially destructive of family relationships and was likely to increase the risk that the benefits to be anticipated by government were not worth the administrative complexity and the aforementioned risks.” Letter from Robert Derzon to Alexander Sharp (August 18, 1977). On a second review, Clifton Gaus, Acting Director of the Office of Policy, Planning, and Research at HCFA, also rejected the waiver. Mr. Gaus stated: “This panel unanimously recommended against the Federal government encouraging or permitting States to set aside the regulations governing family responsibility, even on an experimental’ basis, as potentially detrimental to family relationships, unacceptable to the Department of Health, Education, and Welfare, and inconsistent with the intent of Congress.” Letter from Clifton Gaus to Alexander Sharp (Nov. 7, 1977).

²² Condition 2 of Secretary Califano's conditional approval. Califano Letter, supra note 20. DPW filed a bill for the 1979 Massachusetts legislative session, H.R. 210, entitled “An Act to Establish Limited Relative Responsibility for Medical Assistance.”

At public hearings before the Joint Committee on Health Care, on February 21, 1979, DPW requested that H.R. 210 be withdrawn. A DPW spokesman stated that the bill was being withdrawn because implementation currently appeared to be difficult and costly, and because the potential savings were relatively small. The withdrawal also may have been prompted by opposition from the Greater Boston Elderly Legal Services, the Greater Boston Legal Services, the Somerville Aging Center, the Civil Liberties Union of Massachusetts, and numerous nursing-home residents.

Because H.R. 210 has been withdrawn, the conditions of the waiver approval cannot be satisfied in 1979. Secretary Califano did not, however, establish a time limit for fulfilling the conditions; thus, DPW could submit a similar bill in 1980, if it views the political climate as more favorable to the Plan.

²³ Condition 1 of Secretary Califano's conditional approval requires “Review by Institutional Review Board of the application and notification of NIH and HCFA of its findings (45 CFR Part 46 applies).” Califano Letter, supra note 20. NIH (the National Institutes of Health) is part of the Public Health Service of HEW; it conducts and supports research to improve national health care.

²⁴ Condition 5 of Secretary Califano's conditional approval requires that a revised plan address the following technical and procedural problems: (1) definition of the sample population; (2) randomization into experimental and control groups; (3) development of a master list of potentially liable children; (4) adjustment of the contribution of a couple with more than two parents in nursing homes; (5) adjustment of the assessment when a parent has four children whose combined contribution would be more than the Medicaid payment; (6) evaluation of whether the children will be allowed a tax deduction; and (7) discussion of possible DPW procedures if the child moves out of state during the year. Id.

DPW has addressed some, but not all, of these problems. It has determined: (1) that the assessments would be based on the child's income, not the number of parents he or she has in nursing homes; and (2) that if the combined contribution of several children should exceed the nursing-home cost, the excess would be refunded to them on a pro rata basis. Telephone conversation between the author and A. Van C. Lanckton, General Counsel, DPW (Sept. 12, 1978).

²⁵ Condition 6 of Secretary Califano's conditional approval requires that DPW present HCFA with “a new evaluation plan based on precise and testable hypotheses.” The Secretary also indicated that the terms to be used in implementing the Plan and the standards to be applied in measuring the results need to be more accurately defined. Condition 6 further requires:

Califano Letter, supra note 20.

²⁶ Id.

²⁷ Social Security Act, § 1902(a)(17), 42 U.S.C. § 1396a(a)(17) (1976).

²⁸ 42 C.F.R. § 448.3(b)(1)(iii) (1978); see also 42 C.F.R. § 448.21(a)(2)(ii) (1978).

²⁹ S. Rep. No. 404, 89th Cong., 1st Sess. 77 (1965), reprinted in [1965] U.S. Code Cong. & Ad. News 1943, 2018.

³⁰ Clifton Gaus stated:

Gaus Letter, supra note 21.

The federal panel reviewing the Plan for HEW pointed out that Congress considered two Home Health Care Amendments in 1975, H.R. 4772 and H.R. 4774, 94th Cong., 1st Sess. (1975), which were identical except for a family responsibility requirement; the bill that did not contain the responsibility provision, H.R. 4774, was passed. Meeting Report, Panel Review of Departmental and HCFA Policy Regarding Mandatory Family Responsibility for Health Care.

Finally, a bill was introduced in the Senate in 1977 to eliminate the imputing of spousal income in determining eligibility, S. 1914, 95th Cong., 1st Sess. (1977); this Senate bill is indicative of the trend away from family responsibility and from assuming the availability of family members’ incomes.

A recent court decision, Gray Panthers v. Secretary, Dep't of Health, Education, & Welfare, 461 F. Supp. 319 (D.D.C. 1978), held that HEW regulations that allow states to “deem” income from a noninstitutionalized spouse available to an institutionalized spouse are inconsistent with the Medicaid statute. The rationale for the court's decision was that 42 U.S.C. § 1396a(a)(17) allows the state to take into account only income actually available to the applicant or recipient, not income that should be available to them. This decision is consistent with congressional reluctance to presume the availability of relatives’ income.

³¹ Social Security Act, § 1115, 42 U.S.C. § 1315 (1976).

³² Id.

³³ Crane v. Mathews, 417 F. Supp. 532, 542 (N.D. Ga. 1976). See also Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973); California Welfare Rights Organization v. Richardson, 348 F. Supp. 491 (S.D. Cal. 1972).

³⁴ S. Rep. No. 404, supra note 29, at 1950.

³⁵ Clifton Gaus commented:

Gaus Letter, supra note 21.

³⁶ Condition 1 of Secretary Califano's conditional approval. Califano Letter, supra note 20.

³⁷ 45 C.F.R. § 46 (1978).

³⁸ Crane v. Mathews, 417 F. Supp. 532, 543 (N.D. Ga. 1976).

³⁹ Crane held that section 46 reaches a state co-payment plan established under the Act's waiver provision. Id. at 543-45.

⁴⁰ The HEW regulation requires that “[t]he Board must be composed of not less than five persons with varying backgrounds to assure complete and adequate review”; the regulation also establishes specific qualifications for board members. 45 C.F.R. § 46.106(b)(1) (1978).

⁴¹ 45 C.F.R. § 46.102(a) (1978).

⁴² 45 C.F.R. § 46.102(b)(1)-(2) (1978).

⁴³ Id.

⁴⁴ 45 C.F.R. § 46.103(b) (1978).

⁴⁵ See text accompanying notes 82-93 infra.

⁴⁶ 45 C.F.R. § 46.109 (obtaining consent), § 46.110 (documenting consent) (1978).

⁴⁷ 45 C.F.R. § 46.103(c) (1978).

⁴⁸ Id.

⁴⁹ Mass. Ann. Laws ch. 118E, § 10 (1969) (amended 1977).

⁵⁰ H.R. 210 (1979), proposed enabling legislation, included an amendment to Mass. Ann. Laws ch. 118E, id., and specifically imposed responsibility on children over the age of eighteen for their Medicaid recipient parents in long-term care facilities. See generally note 22 supra, for action on H.R. 210.

⁵¹ Mass. Ann. Laws ch. 273, § 20 (1915) (amended 1973).

⁵² Id.

⁵³ Black's Law Dictionary 535 (rev. 4th ed. 1968)Google Scholar.

⁵⁴ Mass. Ann. Laws ch. 62C, § 21 (1976) (amended 1978). The attorney general has been allowed access to returns held by the Department of Revenue, formerly the Department of Corporations and Taxation, because he or she has broad prosecutorial power. Opinion of the Justices, 354 Mass. 804, 241 N.E.2d 91 (1968). The secrecy of tax returns has been protected, however, by prohibiting cross-examination of the taxpayer, Leave v. Boston Elevated Ry. Co., 306 Mass. 391, 28 N.E.2d 483 (1940); James Millar Co. v. Commonwealth, 251 Mass. 457, 146 N.E. 677 (1925), and by holding tax return information inadmissible in a civil action, Brackett v. Commonwealth, 223 Mass. 119, 111 N.E. 1036 (1916).

⁵⁵ Mass. Ann. Laws ch. 66A, § 2 (1975) (amended 1977).

⁵⁶ Mass. Ann. Laws ch. 214, § 1B (1973) (amended 1974).

⁵⁷ Such enabling legislation would be permissible under the Massachusetts constitution, according to the supreme judicial court: “There is no general constitutional requirement of secrecy for tax returns. Secrecy has been created by statute and as matter of grace only.” Opinion of the Justices, 328 Mass. 663, 665, 105 N.E.2d 565 (1952). Furthermore, providing DPW with access to returns held by the Department of Revenue Services would not violate federal law. Massachusetts requires taxpayers to include federal income tax information in their state returns; therefore, federal law regarding disclosure is applicable. 26 U.S.C. § 6103(p)(8)(A) (1976). The federal statute does not prohibit the disclosure of tax return information by a state agency to a state officer or employee provided the disclosure is authorized by state law. Id. § 6103(p)(8)(B).

⁵⁸ 45 C.F.R. § 205.10 (1978).

⁵⁹ Mass. Const, pt. 1, art. 10; U.S. Const, amend. XIV, § 1.

⁶⁰ 45 C.F.R. § 205.10 (1978).

⁶¹ 397 U.S. 254 (1970).

⁶² See text accompanying notes 82-93 infra.

⁶³ The due process clauses of the federal and state constitutions are analyzed similarly. School Comm. of Hatfield v. Board of Educ., 1977 Mass. Adv. Sh. 938, 363 N.E.2d 237 (1977). The state constitution's clause protects the same interests as are protected by the fourteenth amendment. McCarthy v. Sheriff of Suffolk County, 366 Mass. 779, 322 N.E.2d 758 (1975); Cole v. Brookline Housing Auth., 1976 Mass. App. Adv. Sh. 1238, 360 N.E.2d 336 (1976).

⁶⁴ Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863), held: “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972), stated that the notice and hearing must be at a “meaningful time” and in a “meaningful manner.” A hearing prior to government action is necessary in some instances in order to ensure fairness and to protect the individual's use of his or her property. Id. at 81. When the government's interest outweighs the individual's and the risk of erroneous deprivation is minimal, a hearing after the termination of benefits is sufficient. Mathews v. Eldridge, 424 U.S. 319 (1976).

⁶⁵ The adult child in most cases would be deprived of only a small percentage of his or her income and would not, as a result of the assessment, be forced into marginal financial circumstances. Therefore, the waiting period between the deprivation and the post-collection hearing might not be unduly burdensome.

⁶⁶ Frost v. Commissioner of Corporations and Taxation, 363 Mass. 235, 293 N.E.2d 862, appeal dismissed, 414 U.S. 803 (1973).

⁶⁷ See generally Canron v. Board of Assessors, 366 Mass. 634,322 N.E.2d 83 (1975); City of Boston v. Ditson, 1976 Mass. App. Adv. Sh. 613, 348 N.E.2d 116 (1976).

⁶⁸ Nickey v. Mississippi, 292 U.S. 393 (1934).

⁶⁹ Mass. Ann. Laws ch. 214, § 1B (1973) (amended 1974). The state privacy statute specifically provides a remedy for four distinct wrongs: “1. Intrusion upon plaintiffs physical solitude. 2. Publication of private matter violating the ordinary decencies. 3. Putting the plaintiff in a false position in the public eye …. 4. Appropriation of some element of plaintiff's personality for commercial use.“ Id. Comment. The latter three are clearly inapplicable to the Plan; however, the Plan may be an intrusion upon the solitude of the recipients and their children. To establish liability, tort law requires that there be “something in the nature of prying or intrusion,” that the intrusion be offensive to a reasonable person, and that the intrusion be upon something entitled to be private. Prosser, W., Handbook of the Law of Torts, § 117, 808 (4th ed. 1971)Google Scholar.

⁷⁰ Mass. Ann. Laws ch. 62C, § 21 (1976) (amended 1978); Mass. Ann. Laws ch. 66A, § 2 (1975) (amended 1977). See notes 54-55 supra and accompanying text. However, the receipt of information by a Social Security officer concerning an applicant's health was held not to be an invasion of the applicant's privacy. Benjamin v. Ribicoff, 205 F. Supp. 352 (D. Mass. 1952). By analogy, DPW's examination of tax returns to make assessments would not be considered an invasion of privacy.

⁷¹ Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Stanley v. Georgia, 394 U.S. 557 (1969); Griswold v. Connecticut, 381 U.S. 479 (1965). Although the U.S. Constitution does not specifically establish a right of privacy, the Supreme Court recognized, in Griswold, that a “penumbra” of constitutional guarantees create the right. This “zone of privacy” emanates from the first, third, fourth, fifth, and ninth amendments to the U.S. Constitution. Griswold v. Connecticut, 381 U.S. at 484-85 (1965).

⁷² The early cases establishing this right recognized a right to make private decisions concerning family matters. Prince v. Massachusetts, 321 U.S. 158 (1944); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). Next, the Court extended the right of privacy to sexual matters, recognizing marriage and procreation as fundamental concerns. Skinner v. Oklahoma, 316 U.S. 535 (1942). Then, an individual's privacy rights regarding contraception, Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965), and abortion, Roe v. Wade, 410 U.S. 113 (1973), were held to be fundamental. “The right to freedom of choice in marriage and family relationships lies at the heart of the right to privacy.” Nowak, J., Rotunda, R., & Young, J., Constitutional Law 629 (1st ed. 1978)Google Scholar. Therefore, although the secrecy of tax return information is not constitutionally protected, the familial concerns affected by the Plan may be fundamental personal interests.

State action interfering with a fundamental right is subject to strict scrutiny under the due process and equal protection clauses. Roe v. Wade, 410 U.S. at 113; Eisenstadt v. Baird, 405 U.S. at 438; Griswold v. Connecticut, 381 U.S. at 479. The state must have a compelling interest in the challenged action to survive the court's scrutiny. Id. DPW's primary interest in the Plan is to reduce state Medicaid expenditures. Since budgetary and economic concerns are not compelling, Frontiero v. Richardson, 411 U.S. 677 (1973), the state may not have an overriding interest in the Plan.

⁷³ The Civil Liberties Union of Massachusetts stated:

Hearing on H.R. 210 before the Joint Committee on Health Care (February 21, 1979) (Position Paper of the Civil Liberties Union of Massachusetts).

⁷⁴ Mass. Ann. Laws ch. 62C, § 21 (1976) (amended 1978); Mass. Ann. Laws ch. 66A, § 2 (1975) (amended 1977). See also note 70 supra.

⁷⁵ Opinion of the Justices, 328 Mass. 663, 665, 105 N.E.2d 565 (1952). See note 57 supra.

⁷⁶ U.S. Const, amend. XIV, § 1.

⁷⁷ Waiver application, supra note 1.

⁷⁸ Discrimination in taxation between residents and nonresidents may also violate the privileges and immunities clause. See Travis v. Yale and Towne Mfg. Co., 252 U.S. 60 (1920), for a discussion of discrimination against nonresidents.

⁷⁹ Although tax classifications are presumptively constitutional, they must not be arbitrary or irrational. When members of a given class are taxed unequally, the tax is discriminatory and unconstitutional. Frost v. Commissioner of Corporations and Taxation, 363 Mass. 235, 293 N.E.2d 862 (1973). If the required contributions are considered to be taxes instead of assessments, the anaylsis is the same, because tax classifications must be fair and rationally related to the legislation's objectives. Id. See also Whyy v. Glassboro, 393 U.S. 117, 120 (1968); Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571 (1949).

⁸⁰ Nonresident adult children probably are unreachable by the state if their contacts with Massachusetts are no more significant than having a parent in a Massachusetts nursing home. If they are beyond the state's reach, however, the distinction between resident and nonresident children may be reasonable and consistent with equal protection.

⁸¹ According to a representative of the Massachusetts Rate Setting Commission, the current average per diem rate for a multilevel nursing home is $30.61, which computes to $11,172.65 per year; thus, the adult child with a taxable income of $50,001 would be required to contribute $7,212.65 more than a child with a taxable income of $50,000.

⁸² Waiver application, supra note 1, at 2. The application is unclear as to whether the figures are for a one- or two-year period.

⁸³ Id. Part III, Budget Information.

⁸⁴ Id. at 2-3.

⁸⁵ The Massachusetts Medicaid Advisory Board, Long Term Care Committee, considered the Plan and rejected it as undesirable and unenforceable. Committee Report, October 12, 1978. The Committee based its determination on federal legislative history, state law, and policy concerns.

⁸⁶ Id. at 1.

⁸⁷ Title XIX of the Act may vest low-income elderly with a “right” to medical care, since its purpose is to furnish medical assistance to the needy and aged. In addition, because the Massachusetts Medicaid plan provides coverage for nursing-home care, the elderly indigents’ reliance on the availability of such care may create a right to that care. Thus, the argument can be made that the Plan impinges on the recipient's right to medical care.

⁸⁸ Waiver application, supra note 1, at 6.

⁸⁹ Mark Coven, attorney for Greater Boston Elderly Legal Services, and spokesman and attorney for the statewide elder advocates coalition and for Living Is For the Elderly (LIFE), stated:

Hearing on H.R. 210 (1979) before the Joint Committee on Health Care (Feb. 21, 1979) (written statement of Mark Coven).

⁹⁰ The care appears to be “free,” since the recipient is not paying for it out of his or her own pocket on a fee-for-service basis.

⁹¹ Mark Coven stated: “[W]e are of the firm belief that implementation of this scheme will result in many elderly persons, who are in desperate need of constant medical attention which can be provided by a nursing home, being dissuaded from receiving such care by their adult children who may become financially responsible.” See note 89 supra.

⁹² The children might advocate, for example, that their parents transfer to out-of-state nursing homes in order to avoid the liability imposed by the Plan; such an alternative could result in “transfer trauma” for the parents. For a brief discussion of transfer trauma, see 8 Clearinghouse Rev. 846 (1974-75).

⁹³ For example, a couple with a joint taxable annual income of $40,000 probably can afford to pay an annual assessment of $2511, provided that they have no other major expenses. A couple with a similar income, but with two children in private colleges costing $8,000 each, has only $24,000 left after the $16,000 education payment. The assessment based on $24,000 taxable income is $735, but the second couple also would be assessed $2511. (These figures are based on the schedule of payment attached to the waiver application; see note 15 supra.)

⁹⁴ These incentives were suggested in the Derzon and Gaus Letters, rejecting the Plan, supra note 21.