Disclaimer: This article has been posted for general information purposes only, and discusses Pennsylvania law. You should not act upon the information in this article without first retaining legal counsel.
Pennsylvania appellate case law has upheld lower court decisions that imposed liability on children for their parents’ unpaid nursing home bills under Pennsylvania’s filial support statute. It can be surprising for our clients to learn that this potential liability exists -just by virtue of being a nursing home resident’s child. Filial support liability does not require a court to find that the child did something wrong or caused the arrearage with the nursing facility.
Nursing homes are using Pennsylvania’s filial support law as a collection tool with increasing frequency. Here is an excerpt from Pennsylvania’s filial support statute with key provisions italicized for emphasis:
(a) Liability. –
(1) Except as set forth in paragraph (2), all of the following individuals have the responsibility to care for and maintain or financially assist an indigent person, regardless of whether the indigent person is a public charge:
(i) The spouse of the indigent person.
(ii) A child of the indigent person.
(iii) A parent of the indigent person.
(2) Paragraph (1) does not apply in any of the following cases:
(i) If an individual does not have sufficient financial ability
to support the indigent person.
(ii) A child shall not be liable for the support of a parent
who abandoned the child and persisted in the
abandonment for a period of ten years during the child’s
23 Pa.C.S. § 4603
These filial support lawsuits are normally filed by nursing homes when phone calls and other traditional collection efforts fail, especially when a Medicaid application is denied due to recent asset transfers. The problem gets worse when there is a lack of communication from the family regarding billing matters.
With nursing home costs at $10,000 per month or more, it is important to make sure that the bill is paid in full, whether it is paid privately or with Medicaid long-term care benefits. This is especially true if you are the financially solvent child with siblings who lack the ability to pay and who are essentially judgment-proof. Sometimes the child who caused the unpaid nursing home bill has no money, leaving the other siblings holding the bag.
Nursing homes can sue all the children, regardless of fault, and let the children affix blame and seek reimbursement among each other. As a matter of strategy, nursing homes sometimes file this type of lawsuit in order to “get the attention” of the nursing home resident’s other children who may not be aware of the financial problems, and enlist their help in motivating the other family members to remit payment or cooperate in the Medicaid application process.
You might have inadvertently signed a nursing home agreement for a parent that made you a “voluntary guarantor.” The liability which attaches because of that contractual guarantor provision is in addition to filial support liability. The filial support law is not about children being held liable because they signed an admissions agreement as a guarantor or in any other capacity. Rather, this statute is about children being sued merely because of the parent-child relationship.
Hiring a certified elder law attorney can prevent mistakes that lead to filial support lawsuits. Here are some of the more common situations that generate nursing home collection lawsuits:
- $50,000 was gifted to Child 1 over the course of several months within the 5-year look-back. Child 1 struggles financially and is without resources. Child 1’s father enters a nursing home and pays the bill until his resources have been spent-down to below the Medicaid limit. Unfortunately the application for long-term care benefits is denied due to the transfer penalty caused by the gifting to Child 1. Child 1 cannot return the money, he spent it. The nursing home’s collection attorney does research and finds that Child 2 owns a home and has assets. The nursing home can sue Child 2 for the parent’s unpaid nursing home bill even though the entire problem was caused by the gift to Child 1.
- Mother is admitted to nursing home and all resources are properly spent-down, but nobody applies for Medicaid long-term care benefits or hires an elder law attorney for advice. The out-of-state children think the local child is handling things, but the local child drops the ball or makes a mistake. Unless an exception applies, each child can be held financially responsible for mom’s nursing home bill.
- The Medicaid application is filed too late, preventing retroactive coverage and leaving a gap in payment. The child handling the nursing home billing matters reports being told “not to worry, the grant will be retroactive.” The Medicaid application is approved, but not retroactively because of the way the assets were spent-down. There is a “gap” in the Medicaid coverage. The nursing home can attempt to sue the children for the unpaid balance.
- The application for Medicaid benefits is denied because verification is missing, and nobody supplies the paperwork. Nobody files an appeal. Time passes. It becomes too late to file an appeal. Litigation follows and the children are sued under the filial support statute.
The fact that you did not sign the admissions agreement with the nursing home does not protect you from such a lawsuit. The fact that you thought mom or dad should be at home and not in a nursing home does not help. In fact, you can be sued even if it was your brother or sister who insisted on nursing home placement over your objection. The filial support obligation is “no-fault.”
The relatively recent case of HCR v. Pittas illustrates the operation of Pennsylvania’s filial support law. In this case, the Pennsylvania Superior Court (an appellate court) affirmed a lower court decision that ordered the son of a nursing home resident to pay $92,943 on the basis of Pennsylvania’s filial support law.
The defendant son argued that his siblings should have been sued as well, not just him. The court rejected this argument. The son also argued that nursing home sued too quickly, i.e., that the filial support lawsuit should have waited until after the Medicaid appeal was finalized. The court rejected this argument too, and the Pennsylvania Supreme Court declined to accept review of the decision. HCR v. Pittas, 2012 PA Super 96 (May 7, 2012); Cert denied March 27, 2013.
Here are some suggestions on how to prevent situations that risk filial support liability:
- Try to avoid the problem of an unpaid bill by getting ahead of the situation. Smart money secures a consultation with a certified elder law attorney. Find out what you don’t know in your particular case. An experienced elder law attorney can help avoid mistakes that give rise to filial support liability.
- Do not assume that your mom, dad, sibling, or nursing home is handling the Medicaid application process correctly. If they drop the ball, you might be held liable. Be involved in the process.
- If mom and dad are elderly, they should be very careful about making gifts to help children. If you have a sibling who is struggling financially or who is not self-supporting, the financial help to that child can eventually result in a Medicaid denial if either parent needs nursing home care. You might be sued, even though it was your brother or sister who received the financial help.
- If mom or dad made gifts or loans to you or your siblings within the 5-year look-back, see an elder law attorney if you sense nursing home care might be needed. There are often ways to reverse gifting problems if you secure advice early enough. Waiting too long can make the problem virtually unsolvable. The financially responsible children may then be the ones who get stuck with the bill.
- At the root of many filial support lawsuits is a denial based on “failure to provide verification.” Make sure your parents have 5 years of bank records, including copies of checks for expenditures of $500 or more. They should not throw away bank statements or receipts for large expenditures. Many times these old bank statements can be obtained online at no cost.
- Your parents should not be making large cash withdrawals from the bank. Although we have been successful with these “cash cases” in the past, it can be nearly impossible to verify the disposition of cash since parents rarely save receipts. The Medicaid rules permit the Pennsylvania Department of Human Services to presume that these cash withdrawals were gifts that result in a transfer penalty (period of Medicaid ineligibility.) The burden of proving otherwise falls on the applicant.
- Have your parents’ elder law attorney communicate with the nursing home so their business office knows that steps are being taken to address the unpaid bill. The nursing home can sue even though a Medicaid application is pending or is on appeal. However, facilities tend not to file filial support lawsuits when a reputable elder law attorney is handling the application and there are communications and updates that give the facility comfort that matters are being addressed.
Pennsylvania’s statute provides for some exceptions to filial support liability. For example, if you really do not have sufficient financial ability to support your parent, the court will take that into consideration. Also, there is no liability if the parent abandoned their child for ten years or more before the child attained age 18. Not being in contact with your parent as an adult for many years due to estrangement is not necessarily enough to avoid liability.
Although nursing homes certainly prefer to avoid such litigation, they will do what they need to do in order to get paid. Often these lawsuits can be avoided with proper legal representation. Ignoring an unpaid nursing home bill will make matters much worse. If a parent is trending toward the need for nursing home care, speak to an elder law attorney, especially if you sense a problem.
Robert C. Gerhard, III Esquire is the managing shareholder of Gerhard & Gerhard, P.C., an estate planning and elder law firm located in Montgomery County, Pennsylvania. Attorney Gerhard specializes in elder law, with emphasis on Medicaid Planning, Medicaid Applications, and Medicaid Appeals. He is the author of the Pennsylvania law treatise, Pennsylvania Medicaid, Long-term Care.