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Filial statutes create questions about duty to support

Jenny Montgomery
June 20, 2012
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A recent Pennsylvania court decision has spurred discussion about when an adult child may be found financially responsible for a parent’s long-term medical care.

The case, Health Care & Retirement Corp. of America v. John Pittas, Pa. Super. Ct., No. 536 EDA 2011, May 7, 2012, brings to light the lack of clarity in filial responsibility laws. In many states – including Indiana – these laws, that are a holdover from England’s Elizabethan era, outline a child’s duty to contribute to costs of a parent’s care if the parent lacks the ability to do so.

jenkins-sarah-mug.jpg Jenkins

Indiana Code 31-16-17, “Liability for Support of Parents,” specifies that if a child is “financially able,” and a parent is “financially unable” to pay for medical care, the child shall contribute to the costs. But with no hard-and-fast rule to gauge financial ability, the law creates some fundamental questions for elder law attorneys.

Pennsylvania’s opinion

In the Pittas case, an appellate panel for the Pennsylvania Superior Court held that John Pittas had to pay his mother’s $92,943.41 nursing home care bills. The court held that the nursing home was able to show that Pittas had the financial ability to pay, based on his annual income of $85,000. But Pittas argued that the court failed to consider his other financial obligations and that his mother has a husband and two other grown children. The Pennsylvania filial responsibility statute, however, makes no mention of such considerations.

“Indeed, while sympathetic with Appellant’s obligation to support his mother without the assistance of his mother’s husband or her other children, we note that if Appellant had desired to share his support-burden, he was permitted to do so by joining those individuals in this case. However, Appellant took no such action,” Judge Judith Ference Olson wrote in the appellate panel’s opinion.

“The case out in Pennsylvania is just astounding to me,” said Faegre Baker Daniels attorney Sarah Jenkins.

The federal Nursing Home Reform Act prohibits nursing homes from requiring payment as a condition of admission, but Jenkins said it appears that states with filial responsibility laws create statutory liability for children.

In caring for children, parents enjoy certain benefits such as claiming children as dependents. And parents may generally expect to save for a child’s future expenses.

“The problem I see with this is children don’t have any advance notice that they might be caring for a parent,” Jenkins said.

The cost of care

In the Pittas case, the mother’s bills accrued after a six-month stay in a nursing home, where she received rehabilitative care for two broken legs sustained in a car crash. While Medicare will cover 100 days of skilled, medically necessary care, it does not cover the day-to-day assisted living tasks that Medicaid does.

“What you’re really looking at is instances of between when a parent runs out of money and when a parent qualifies for Medicaid,” Jenkins said.

Nursing home care is about $5,000 a month, solo elder law attorney Paul S. Ward said, and families are generally not prepared to handle the Medicaid application process. The program’s changing requirements and procedures can easily cause people to lose their eligibility.

In Indiana, people typically apply for Medicaid online through a centralized service center.

“Before the new system came into place, you dealt with a caseworker in a local county office, but now it’s all done with a service center in Indiana, so you’re basically communicating with a fax machine,” Ward said.

Jenkins pointed out that parents of minor children generally have their children insured under their policies, which provides some measure of protection against catastrophic medical costs. But the same is not true for adult children with aging parents.

“You just don’t have that here,” she said of Pittas, “where after the fact the court decides, we’re just going to reallocate to the child because they have a responsibility to pay.”

Interpretation

Ward said the issue of filial responsibility has been a topic of discussion among elder law attorneys recently and no one really knows what “financially able” means in Indiana’s statute.

Charles W. Backs, of the Fort Wayne firm Beers Mallers Backs & Salin, said that according to 42 USC 1396r (c)(5), a nursing home cannot require a third party to sign or be personally responsible for a resident’s expenses. Even a power of attorney could sign on behalf of a parent, but not be personally financially responsible for the costs of care.

“That flies in the face of the statute here in Indiana, and even though the facility can’t require a person to personally guarantee expense, through that section, it is possible for a facility to say, I don’t need you to guarantee it, I can sue you,” Backs said.

Ward was not aware of a case in Indiana in which the filial responsibility statute has been enforced. And Backs wonders if Indiana judges would reach the same conclusion the Pennsylvania judges did.

“I think it really would be against public policy, and it’s pretty Draconian … I don’t know what would happen,” Backs said. “I would think many judges would shoot it down.”•

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  • Filial support
    A filial obligation imposed upon an adult child can be financially devastating if the child's parent requires healthcare, particularly long-term care, such as in a nursing home, which is typically not covered by private insurance. Some think that a debt incurred by a person should not have to be paid by their children and vice versa. However, a number of states hold that they do, through what exactly are called “filial support” laws. The regulations are resulting in a number of people getting saddled with huge debts and getting stung with lawsuits. Filial support laws put many in debt for care of parents.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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