Last year’s decision by the Pennsylvania Superior Court that a nursing home was authorized to collect nearly $100,000 in outstanding bills from an adult child of an indigent nursing home resident, Health Care & Retirement v. Pittas, 2012 PA Super 96, 46 A.3d 719 (2012), garnered widespread attention.

The nursing home filed suit against the adult son based upon a little-known Pennsylvania filial support statute, 23 Pa. C.S. §4603, titled "relatives’ liability." The statute imposes a duty upon a spouse, child or parent of an indigent person "to care for and maintain or financially assist" the indigent person. Because the obligation is statutory, the Superior Court had little choice but to enforce the statute. The Supreme Court recently denied the son’s appeal, surely because the duty imposed was a matter of statutory enforcement.

There is no general common-law duty for children to be responsible for a parent’s care. The duty arises instead from statute or contract. At one time, 45 states had filial responsibility statutes. According to elder law scholar Katherine C. Pearson, author of "Filial Support Laws in the Modern Era: Domestic and International Comparison Practices for Law Requiring Adult Children to Support Indigent Parents," these statutes date back to colonial poverty laws and derive from English law. England, however, repealed its filial support laws in 1948.

When Social Security was implemented in 1935, filial support laws became less necessary. In the mid-1960s, the federal government prohibited states from determining eligibility for Medicaid based upon an adult child’s resources, according to Pearson. Currently, approximately 29 states still have some form of filial statute on the books. Around the country, however, enforcement of the statutes remains rare.

As seen in Pittas, though, long-term care facilities in Pennsylvania use the filial support law to collect their outstanding nursing home bills from residents’ kin. Since the recession, the government has tightened reimbursement for medical expenses under Medicaid. Long-term care facilities are feeling the pinch and therefore looking for a tool to use to collect unpaid bills.

It is noteworthy that in Pittas, the Superior Court held that the son was liable to pay his mother’s nursing home bill, notwithstanding that her application for Medicaid was still pending. The Pennsylvania statute provides that relatives are liable "regardless of whether the indigent person is a public charge."

In Pittas, the mother had left the country, so the nursing home filed its collection action against the son and didn’t even wait, as mentioned, to see if the mother’s Medicaid application would be granted.

The son in Pittas contended that the mother was not indigent and that the nursing home should also have considered her husband’s resources. Because the statute does not define indigence, the court relied upon a common-law definition, which generally holds that people are indigent if their means are not adequately sufficient to provide for their maintenance and support. Because the mother’s medical expenses exceeded her Social Security payments and her portion of her husband’s pension, the court had little difficulty in concluding that she was indigent. The court further held that if the son wanted to allocate responsibility among family members, he was required to join those family members, not the nursing home.

The new wrinkle with the Pittas decision is that the son was held liable for an exorbitant amount of indebtedness ($93,000) after the indebtedness had been incurred. In addition, contrary to prior decisions, no evidence was presented that the son was at fault in any way. There was no evidence, for instance, that the son had siphoned off funds from his mother that could have been used to pay her nursing home bill or that the son had refused to apply for Medicaid benefits on his mother’s behalf. The son was held retroactively liable for his mother’s indebtedness. There was no evidence that the son had been aware of the costs of the care, let alone agreed to contribute to pay those costs. That is because the statute does not require fault, a contract to take on the obligation or even awareness of the obligation.

The Pennsylvania statute does provide that relatives are not responsible to pay the indigent person’s care and maintenance bills if the relatives lack the financial ability to pay them. The statute also provides a cap on the relative’s liability, at least with respect to services provided to the aged. The statute provides that the responsible relative is liable for the lesser of the cost of the medical assistance for the aged or six times the excess of the relative’s average monthly income over the amount required for the reasonable support of the relative and the relative’s dependents. There is no comparable cap for services provided to non-aged indigent people.

After nursing homes began enforcing the Pennsylvania filial support law in 2005, efforts were made to repeal the filial Pennsylvania statute. In 2006, the state House of Representatives passed a bill repealing the filial statute, but it was later blocked in the Senate when the Pennsylvania Department of Welfare opposed the repeal. More recently, in 2011, another bill was introduced by Democrats, but this bill is expected to remain in committee indefinitely under a Republican-dominated legislature.

Regardless of party affiliation, the legislature needs to seize this opportunity to reconsider the filial support law in light of the Pittas decision. The legislature needs to determine whether Pennsylvania should continue to grant nursing homes (and other providers) the right to collect unpaid bills from residents’ kin in the modern era.

Is the right to collect outstanding bills from kin — who are without fault — reasonable at a time when medical care expenses are expected to continue escalating and governmental assistance to continue plummeting, as the aged population continues to expand? On the other hand, the legislature needs to weigh whether some version of the filial support law needs to remain in place to ensure that long-term care facilities can remain viable, particularly during gap periods in Medicaid reimbursement and escalating health costs.

In that event, the legislature should consider whether the statute should define indigence based on a formula and restrict the statute to long-term care facilities only. If the statute is to remain a tool for all medical care and maintenance providers, as it is now, the legislature needs to decide whether a cap should be imposed on liability for services provided to all people, not just the aged.

There is a lot at stake in striking the correct balance as to whether to repeal or, at a minimum, refine the filial support law. Even more is at stake if the legislature should fail to take this critical opportunity to re-evaluate the law in the context of modern health care pressures for aged citizens and their families.  •

Pamela M. Tobin handles complex commercial litigation at Kaplin Stewart.