July 20, 2012

Written By: Rosemary A.Sullivan

You have just finished paying years of inflated college tuition for your college age children, who may or may not have graduated or may or may not have a job. You are ready to settle back as empty nesters and finally start thinking about your own retirement. Don’t relax too soon, you may again be reaching into your pocket to pay your parents’ nursing home “tuition”. The Pennsylvania Superior Court recently ruled that a son is liable for his mother’s $93,000 nursing home bill under Pennsylvania’s recodified Filial Responsibility Law in the case of Health Care Retirement Corporation of America v. Pittas, (Pa. Super. Ct. No. 536 E.D.A. 2011, May 7, 2012).

John Pittas’ mother was injured in an auto accident and entered a nursing home for rehabilitation. She applied for Medicaid, which is the shared Federal and State government entitlement program which provides coverage for skilled nursing home care for eligible applicants. While her application was pending, Mom left the nursing home and moved to Greece with another daughter, leaving the nursing home with a sizeable unpaid bill and substantial doubt as to whether Medicaid would pay the bill. The nursing home sued Mr. Pittas for nearly $93,000 under the Pennsylvania Filial Responsibility statute which requires a child to provide support for an indigent parent if the child has sufficient financial ability to support the indigent parent (23 Pa. C.S.A. §4603).

At trial, a Judge of the Lehigh County Court of Common Pleas, found in favor of the nursing home, finding that Pittas’ mother was indeed indigent and that Pittas had the financial ability to support her. On appeal from the Trial Court’s Decision, the son argued (1) that the nursing home had the burden of proving that he had sufficient resources to financially support his mother; (2) that the Trial Court improperly determined his mother to be indigent; (3) that the Court failed to consider other income sources available to his mother, including her husband and two other adult children; and (4) that her application for Medicaid benefits was still pending.

The Appellate Court agreed that the nursing home had the burden of proving the son’s ability to pay but found that the nursing home had done so. In addition, the Appellate Court agreed with the Trial Court that Pittas’ mother met the common law definition of “indigent” because she had insufficient income and funds to provide for her own care and maintenance. Finally, and most significantly, the Appellate Court also agreed with the Trial Court’s determination that the nursing home did not have to wait until the mother’s application for medical assistance was decided, nor was the nursing home required to consider whether other family members could contribute to the payment of the unpaid bill. The nursing home had the right to choose whichever family member it wished to pursue for the money owed to it for the mother’s care.

Although children of aging parents may be surprised to learn that they can be held responsible for their parents’ unpaid bills, filial responsibility statutes are currently on the books of 30 States, including Pennsylvania and New Jersey. About two-thirds of these States allow long-term care providers to go after family members to recover payment of parents’ unpaid bills. Although there are no recent New Jersey cases similar to Pennsylvania’s, in a 1969 case, the Appellate Division of the New Jersey Superior Court upheld a New York Filial Responsibility statute as not being penal in nature and therefore enforceable in New Jersey. As a result, a financially able son was required to pay his mother’s unpaid hospital bills totaling $4,338. (Terenzio v. Nelson, 258 A.2d 20, 107 N.J. Super. 223 (1969).

A prior New Jersey case required two financially able sons to pay a monthly amount to cover their mother’s monthly living expenses so that she would not become a public charge. (Pavlick v. Terenski, 149 A.2d 300, 54 N.J. Super. 478 (1959). Five years later, a New Jersey Court compelled the son of a pauper woman to pay one-third of her welfare allowance per month even though the son had offered to support the mother in his home. (Monmouth County Welfare Board v. Coward, 206 A.2d 610, 86 N.J. Super. 253 (1964). Presently, it is unclear whether under the New Jersey filial support statutes, a nursing home has standing to compel a child to pay the unpaid long-term care bills for the parent. Present statutes can be enforced by any County Director of Welfare or by any court of competent jurisdiction upon its own initiative or upon the information of any person. N.J. Stat. Ann. §§44:4-100 thru 44:4-103; N.J. Stat. Ann. §§44:1-139 thru 44:1-142.

The reality is that as Medicaid cutbacks continue and eligibility for medical assistance becomes more difficult to obtain, a nursing home will be looking to its State’s Filial Support law to get its bills paid. Some nursing homes may limit using the Filial Support Law to cases where assets have been transferred within the 5 year look-back period prior to the parent applying for Medicaid, seeking only to recapture the funds transferred to family members. However, in the Pittas decision, the Pennsylvania Superior Court sustained the nursing home’s suit against the son who had not received any prior gifts from his mother.

As the Baby Boomer population ages and State and Federal government entitlement programs such as Social Security, Medicare and Medicaid become increasingly overburdened and underfunded, more and more suits will be instituted by nursing homes, assisted living facilities, etc. against fifty and sixty something Boomers to cover the cost of their parent’s care. As this recent Pennsylvania case demonstrates, it behooves any family with elderly parents to come up with a plan to cover long term care costs and to protect not only their parents’ assets but also their own from the reach of the long arm of the law.

To read the full Pennsylvania Superior Court Opinion, click here.

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For more information, contact the author of this Client Alert:

Rosemary A. Sullivan, Esq.

This article provides information of general interest and is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding the specific issues raised in this article should be directed to the authors or to your contacts at Hill Wallack LLP.