Monday, August 19, 2013
Pennsylvania has become the hotbed of "filial support law" enforcement suits, with health and long-term care facilities leading the charge.
In 2012, in Health Care & Retirement Corp.(HCR) v. Pittas, an intermediate court of appeals held an adult son liable for more than $92k in nursing home costs incurred by his mother under Pennsylvania's filial support law, 23 Pa.C.S.A. Section 4603. For a brief video analysis of the Pittas case and Pennsylvania law, see here.
The Pittas case was controversial in part because the court did not point to any fault on the part of the son as justification for enforcement. For example, there was no discussion of "improper" transfers or theft of the parent's assets, facts that had sometimes been the background of previous cases.
The Pennsylvania trend certainly has not gone unnoticed by the media or courts and legislatures in other states. I receive regular calls from attorneys and parties on all sides of the "filial support" enforcement controversies asking me to compare their state's (or even foreign countries') laws to Pennsylvania. For more on comparative analysis of filial support enforcement issues, see my recent Elder Law Journal (University of Illinois School of Law) article here.
Perhaps we are now seeing the pendulum swing the other way, rejecting modern enforcement attempts. One of the latest rulings on filial support law occurred in Montana. In a July 2013 decision, the trial court granted summary judgment in favor of a son on a nursing home's claim of close to $15k incurred for his mother's care. The court declined to enforce a cause of action for filial support, citing a bar on "third-party guarantees" under federal Medicare and Medicaid law, and thus suggesting enforcement of the state's separate filial law was preempted. For a scanned copy of the decision in Heritage Place, Inc. v. Jarrell, Case No. DV-11-430(D), in the 11th Judicial District Court, Flathead County, Montana, see the link available through ElderLawAnswers.
Perhaps even more significant is recent action by the New Hampshire legislature, changing state law to eliminate a statutory basis for an adult child to be held liable to support his or her parents. See 2013 New Hampshire Laws Ch. 212 (H.B. 481), approved July 10, 2013 and effective on January 1, 2014, amending N.H. Rev. Stat. Sections 167.2 and 546.A:2.
Will Pennsylvania legislators take similar action? For an answer to that question, follow Pennsylvania Senate Bill 70 and House Bill 224, for the 2013-2014 legislative session. Both the nursing home industry and the Pennsylvania Department of Public Welfare have opposed repeal efforts in recent years, while the Pennsylvania Bar Association has supported repeal.