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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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