Under Pennsylvania’s Filial Support Law, children can be liable for an indigent parent’s long-term care expenses in Pennsylvania, including payment for unpaid nursing home bills.
Given that the cost of nursing home care is over $12,000 per month, the most prevalent filial support case arises where there are unpaid nursing home bills. One or more of the children are sued by the nursing facility to help pay for the indigent (unable to pay) parent’s care. Facilities have the ability to file these suits because they are considered an interested party in the patient’s care. The Filial Support Law is most often used as a debt collection tool by the nursing home industry.
The Medicaid program (called Medical Assistance in Pennsylvania) serves as protection from the debt collection threat under the Filial Support Law. However, the Medicaid program’s complex web of rules and regulations pose traps for the unwary. One typical pitfall involves the transfer of assets, or “gifting” made by the parent. The gifting causes a penalty period during which the parent is ineligible for Medicaid due to making the transfers.
Penalty periods arise where transfers of assets are made in the five-year period immediately preceding an individual’s application for Medicaid (the “five-year look-back period). While the penalty for gifting during the five-year lookback is not a complete bar to receiving Medicaid long-term care benefits, it can be significant. Penalty periods roughly correspond to the amount of time in a nursing facility the gifted assets would have paid for the applicant’s care.
One common solution to cure penalized gifting is for the gift recipient to give the assets back to the Medicaid applicant. A classic filial support case arises where one or more of the gift recipients refuse or cannot return the gifted assets. This is one reason why it is important to consider the ramifications of gifting assets, particularly when the gifts are made directly to children or other loved ones.
Court cases have taught us that a child need not be a “bad actor” or even a gift recipient to be liable for filial support. Collection agencies for nursing facilities have the ability to pick their defendant in a suit for filial support and may choose a child who is close in proximity or appears to have greater resources than the other children. It is therefore important that families work to ensure that Medicaid applications are filed correctly so that eligibility is achieved. Families would be well served by seeking the advice of experienced counsel to assist them in filing Medicaid applications.
Children do have the ability to defend themselves from suits for filial support. Children may attempt to show that they are unable to provide support for their parents due to their own financial circumstances. Courts have generally been unsympathetic to these claims. A second defense children may raise is that their parent abandoned them for a period of ten years during “minority.” This defense has been strictly construed by courts and has not relieved children of liability even where they had terrible relationships with their parents.
Despite the fact that filial support cases are a reality in Pennsylvania, it is important to understand that a small percentage of children with a parent residing in a nursing facility face filial support liability. Although the Medicaid program is complicated and poses some traps for the unwary, the maze is navigable, and the benefits are usually the best protection against a filial support claim. Professional advice in this arena is highly recommended and can make a world of a difference.