Inspirational Quote

A Pennsylvania court ruled that the son of a Medicaid applicant must pay an elder law firm’s fee for successfully negotiating a penalty period reduction because the son would otherwise be responsible for paying the nursing home under the state’s filial responsibility doctrine. Coates, et al., v. Salmon (Pa. C.P., Mont. Cty., No. 2018-16878, June 23, 2021).

The child engaged the services of an elder law attorney to pursue an appeal of an $86,786 Medicaid penalty that the Pennsylvania Department of Human Services had assessed against the child's father when he applied for Medicaid nursing home benefits. During their initial meeting, the elder law attorney explained that if the penalty were upheld, the child could be held personally liable to the nursing home for the shortfall in payment pursuant to Pennsylvania’s legal doctrine of filial responsibility. As his father’s agent under a power of attorney, the child authorized the attorney to proceed. There was no written fee agreement.

The lawyer reached a settlement to reduce the penalty from $86,786 to$18,380, a savings of $68,406. A bill for $6,465.89 was sent. The child refused to pay the lawyer.

Under Pennsylvania’s doctrine of filial responsibility, the child would have been personally liable for payment of his father's nursing home fees, making the child the beneficiary of the legal services and liable for payment.

Pennsylvania courts use filial responsibility laws in, shall we say, creative ways, especially wn they catch any whiff that children helped themselves to their parent's money rather than using that money to pay for their parents; nursing home care. One of the key modern-era cases for filial support law in Pennsylvania is Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066 (Pa. Superior Ct, 2003), where the court remanded a case for decision on filial support law grounds, in the absence of other viable theories, in order to hold a daughter liable for her mother's costs of nursing home care. The court was clearly annoyed by the evidence the daughter had

transferred some $100k of her mother's funds to herself using a power of attorney.

The doctrine of filial responsibility is codified in Section 4603(a)(1)(ii) of the Domestic Relations Code, 23 Pa. C.A. Section 4603(a)(1)(ii). . .

(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.

https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/23/00.046.003.000

..HTM

This provision and its predecessor statute have been repeatedly cited as authorizing a suit by a nursing home or other medical provider to recover fees for the care of an indigent patient from the patient's adult child with the means to make payment.

For example, the Pennsylvania Supreme Court decided a similar case in 2019 where the parents were held responsible for a child’s care over $200,000.00 to a non-profit residential care facility for persons with disabilities. Melmark, Inc. v. Schutt, 206 A.3d 1096 (2019).

While there are no cases quite like the above in Delaware, Delaware has a similar statute on its books:

13 Del. C. § 503. Duty to support a poor person, parents or children.

Except as expressly provided in §§ 501 and 502 of this title,

the duty to support a poor person unable to support

himself/herself rests upon the spouse, (emphasis supplied), in

that order, subject to § 504 of this title as to expenses

described therein. If the relation prior in order shall not be able,

the next in order shall be liable, and several relations of the

same order shall, if able, contribute according to their means.

(a) The duties of support specified in §§ 501 through 504 of

this title shall be performed according to the following order of

priority:

(1) Duty to support one’s own minor child;

(5) Duty to support a poor person.

It has been suggested in the scholarly literature that Nursing Homes in Delaware will have standing under the above statutes to sue individual children, in that someone in a facility unable to pay is certainly a “poor person.” W. Wade W. Scott, The Wolf at the Door: Filial Responsibility under Delaware Law, 20 Widener L.R. 239 (2014). Time will tell whether the Delaware Supreme Court, like the Pennsylvania Supreme Court, will permit third-party healthcare providers to use the statute to recover costs from adult children who have the means to pay for their parents’ care.