GEORGETTE MERICKA V DEPT OF COMMUNITY HEALTH
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STATE OF MICHIGAN
COURT OF APPEALS
GEORGETTE MERICKA,
FOR PUBLICATION
March 19, 2009
9:05 a.m.
Petitioner-Appellant,
v
DEPARTMENT OF COMMUNITY HEALTH,
Respondent-Appellee,
No. 280596
St. Clair Circuit Court
LC No. 07-000015-AA
Advance Sheets Version
and
ST. CLAIR COUNTY COMMUNITY MENTAL
HEALTH,
Intervening Respondent-Appellee,
Before: Jansen, P.J., and Borrello and Stephens, JJ.
BORRELLO, J.
Petitioner, Georgette Mericka, appeals the trial court’s order affirming a decision of a
hearing referee of the administrative tribunal for the Department of Human Services that she did
not have a developmental disability under MCL 330.1100a(21) and denying her specialty
supports and services. We originally denied petitioner leave to appeal.1 Thereafter, petitioner
sought leave to appeal in the Michigan Supreme Court; in lieu of granting leave to appeal, the
Supreme Court remanded the matter to this Court “for consideration as on leave granted.”
Mericka v Dep’t of Community Health, 482 Mich 996 (2008). For the reasons set forth in this
opinion, we reverse.
I. Facts and Procedural History
Petitioner is a female who is almost 50 years old. She was diagnosed at age 21 with
Multifocal Motor Neuropathy (MMN). MMN is a progressive condition for which there is no
1
Mericka v Dep’t of Community Health, unpublished order of the Court of Appeals, entered
April 3, 2008 (Docket No. 280596).
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cure; it is characterized by muscle weakness, muscle wasting, and muscle twitching and
cramping. The most current information in the lower court record indicates that petitioner is
married and shares a home with her mother and her husband. She is completely dependent on
others for assistance with self-care, transfers, repositioning, and mobility. She also requires
assistance with tasks such as blowing her nose or wiping away a tear. However, she can
occasionally feed herself and drink from a straw when someone else sets it up for her.
It is undisputed that petitioner is mentally and intellectually sound. She is her own
guardian and is capable of making her own decisions. She is mentally, but not physically, able to
complete all activities of daily living. She earned a Bachelor of Arts degree and works part-time
as the director of resource development at the Blue Water Center for Independent Living.
Because of her MMN, however, petitioner requires aides and assistive technology to enable her
to do her job, and she lacks the stamina to work full-time.
Respondent Michigan Department of Community Health (DCH) operates the “Medicaid
Managed Specialty Supports and Services 1915(b)/(c) Waiver Program”2 to provide supports and
2
The § 1915(b) specialty and supports and services program is relevant to the facts of this case
and is explained in the order of the hearing referee of the Department of Human Resources as
follows:
The Medical Assistance Program is established pursuant to Title XIX of
the Social Security Act and is implemented by Title 42 of the Code of Federal
Regulations (CFR). It is administered in accordance with state statute, the Social
Welfare Act, the Administrative Code, and the State Plan under Title XIX of the
Social Security Act Medical Assistance Program.
“Title XIX of the Social Security Act, enacted in 1965, authorizes Federal
grants to States for medical assistance to low-income persons who are age 65 or
over, blind, disabled, or members of families with dependent children or qualified
pregnant women or children. The program is jointly financed by the Federal and
State governments and administered by States. Within broad Federal rules, each
State decides eligible groups, types and range of services, payment levels for
services, and administrative and operating procedures. Payments for services are
made directly by the State to the individuals or entities that furnish the services.”
42 CFR 430.0
“The State plan is a comprehensive written statement submitted by the
agency describing the nature and scope of its Medicaid program and giving
assurance that it will be administered in conformity with the specific requirements
of title XIX, the regulations in this Chapter IV, and other applicable official
issuances of the Department. The State plan contains all information necessary
for CMS to determine whether the plan can be approved to serve as a basis for
Federal financial participation (FFP) in the State program.”
(continued…)
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services for individuals with developmental disabilities. Petitioner applied to receive benefits as
a developmentally disabled person from intervening respondent St. Clair County Community
Mental Health (CMH), through its contract agency Thumb Mental Health Alliance. The CMH in
turn contracts with the DCH to provide mental health services. The Thumb Mental Health
Alliance determined that petitioner was developmentally disabled under MCL 330.1100a(21),
and she began receiving § 1915(b) specialty supports and services. She received such benefits
for approximately 1½ years.
In April 2006, Dr. Tom Seilheimer, a psychologist with the CMH, performed a second
opinion review of petitioner’s file to determine her eligibility to receive § 1915(b) specialty
supports and services. Dr. Seilheimer determined that petitioner had substantial functional
limitations in the areas of self-care and mobility, MCL 330.1100a(21)(a)(iv)(A) and (D), but that
she had no substantial functional limitations in the areas of receptive and expressive language,
learning, self-direction, capacity for independent living, and economic self-sufficiency, MCL
330.1100a(21)(a)(iv)(B), (C), (E), (F), and (G). Because he determined that petitioner only had
(…continued)
42 CFR 430.10
Section 1915(b) of the Social Security Act provides:
“The Secretary, to the extent he finds it to be cost-effective and efficient
and not inconsistent with the purposes of this subchapter, may waive such
requirements of section 1396a of this title (other than subsection (s) of this
section) (other than sections 1396a(a)(15), 1396a(bb), and 1396a(a)(10)(A) of this
title insofar as it requires provision of the care and services described in section
1396d(a)(2)(C) of this title) as may be necessary for a State. . . [.]”
The State of Michigan has opted to simultaneously utilize the authorities
of the 1915(b) and 1915(c) programs to provide a continuum of services to
disabled and/or elderly populations. Under approval from the Centers for
Medicare and Medicaid Services (CMS), the Department of Community Health
(Department) operates a section 1915(b) Medicaid Managed Specialty Services
and Supports program waiver in conjunction with a section 1915(c) Habilitation
and Supports Waiver.
***
The Department’s contract with CMH requires CMH to provide State
Medicaid Plan services through the Medicaid Prepaid Specialty Mental Heath and
Substance Abuse Services combination 1915(b)/(c) waiver to Medicaid
beneficiaries who meet the eligibility requirements for Medicaid specialized
ambulatory mental health/developmental disability services.
[Order of
Reconsideration, Department of Human Services hearing referee Martin D.
Snider, December 14, 2006, pp 2-3.]
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substantial functional limitations in two of the seven areas of major life activity listed in MCL
330.1100a(21)(a)(iv), and the statute requires substantial functional limitations in three areas to
qualify as a developmental disability, Dr. Seilheimer concluded that petitioner was not
developmentally disabled and had been receiving § 1915(b) specialty supports and services in
error.
Petitioner filed a timely request for review of the CMH’s decision in the administrative
tribunal for the DCH. Following a hearing, hearing referee Stephen B. Goldstein reversed the
CMH’s determination that petitioner was not developmentally disabled and was not ineligible for
§ 1915(b) specialty supports and services. According to Goldstein, petitioner’s physical
impairments resulted in a substantial functional limitation on her capacity for independent living.
Because the parties agreed that she satisfied MCL 330.1100a(21)(a)(iv)(A) (self-care) and (D)
(mobility), Goldstein ruled that petitioner was developmentally disabled and was eligible for
continued § 1915(b) specialty supports and services. In light of his determination that petitioner
had substantial functional limitations in three areas of major life activity listed in MCL
330.1100a(21)(a)(iv), ALJ Goldstein did not address whether petitioner was economically selfsufficient under MCL 330.1100a(21)(a)(iv)(G).
Thereafter, the CMH requested and was granted reconsideration of hearing referee
Goldstein’s ruling by the administrative tribunal for the Department of Human Services. On
reconsideration, hearing referee Martin D. Snider reversed Goldstein’s decision that petitioner
was developmentally disabled and was eligible for continued § 1915(b) specialty supports and
services. According to Snider, there was sufficient evidence that petitioner possessed the
capacity for independent living. Furthermore, Snider ruled that there was sufficient evidence
that petitioner did not have a substantial functional limitation in the area of economic selfsufficiency. Thus, Snider ruled that Goldstein erred in determining that petitioner had a
developmental disability and was eligible to receive specialty supports and services.
Petitioner appealed Snider’s decision to the St. Clair Circuit Court. The circuit court
stated that “[d]evelopmental disabilities are disabilities of intellect or behavior” and ruled that
Snider’s decision that petitioner possessed the capacity for independent living was both lawful
and supported by competent, material, and substantial evidence. The trial court further stated
that Snider’s determination that petitioner did not have a substantial functional limitation in the
area of economic self-sufficiency was also supported by competent, material, and substantial
evidence. Thus, the circuit court affirmed Snider’s decision that petitioner was ineligible to
receive § 1915(b) specialty supports and services because she is not developmentally disabled.
II. Analysis
A. Standard of Review
The circuit court reviewed the decision of the administrative tribunal for the Department
of Human Services. Judicial review of decisions, findings, rulings, and orders of an
administrative officer includes, “as a minimum, the determination whether such final decisions,
findings, rulings and orders are authorized by law; and, in cases in which a hearing is required,
whether the same are supported by competent, material and substantial evidence on the whole
record.” Const 1963, art 6, § 28. Judicial review of an administrative agency’s decision
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regarding a matter of law is limited to determining whether the decision was authorized by law.
Id. Romulus v Dep’t of Environmental Quality, 260 Mich App 54, 64; 678 NW2d 444 (2003).
This Court’s review of a circuit court’s review of an administrative decision is “to
determine whether the lower court applied correct legal principles and whether it
misapprehended or misapplied the substantial evidence test to the agency’s factual findings,
which is essentially a clearly erroneous standard of review.” VanZandt v State Employees’
Retirement Sys, 266 Mich App 579, 585; 701 NW2d 214 (2005). The circuit court’s legal
conclusions are reviewed de novo and its findings of fact are reviewed for clear error. Davis v
State Employees’ Retirement Bd, 272 Mich App 151, 152; 725 NW2d 56 (2006). “Great
deference is accorded to the circuit court’s review of the [administrative] agency’s factual
findings”; however, “substantially less deference, if any, is accorded to the circuit court’s
determinations on matters of law.” Romulus, supra at 62.
This appeal involves an issue of statutory interpretation. If an administrative agency or
trial court interprets a statute, such a determination is a question of law subject to review de
novo. DaimlerChrysler Services North America LLC v Dep’t of Treasury, 271 Mich App 625,
631; 723 NW2d 569 (2006).
B. MCL 330.1100a(21)
Petitioner argues that hearing referee Snider erred in determining that she was not entitled
to § 1915(b) specialty supports and services and that the circuit court erred in affirming Snider’s
decision. Whether petitioner is entitled to receive such support depends on whether she has a
developmental disability under MCL 330.1100a(21), which provides, in relevant part:
“Developmental disability” means . . . :
(a) If applied to an individual older than 5 years of age, a severe, chronic
condition that meets all of the following requirements:
(i) Is attributable to a mental or physical impairment or a combination of
mental and physical impairments.
(ii) Is manifested before the individual is 22 years old.
(iii) Is likely to continue indefinitely.
(iv) Results in substantial functional limitations in 3 or more of the
following areas of major life activity:
(A) Self-care.
(B) Receptive and expressive language.
(C) Learning.
(D) Mobility.
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(E) Self-direction.
(F) Capacity for independent living.
(G) Economic self-sufficiency.
(v) Reflects the individual’s need for a combination and sequence of
special, interdisciplinary, or generic care, treatment, or other services that are of
lifelong or extended duration and are individually planned and coordinated.
The parties agree that petitioner has substantial functional limitations in the areas of selfcare and mobility, and that she does not have substantial functional limitations in the areas of
receptive and expressive language, learning, and self-direction. Because petitioner must have
substantial functional limitations in three or more areas of major life activity to qualify as
developmentally disabled under the statute, she must also have a substantial functional limitation
in either the area of capacity for independent living or economic self-sufficiency. Both the
circuit court and hearing referee Snider determined that petitioner possessed the capacity for
independent living because she was mentally capable of living independently. Thus, we must
determine whether petitioner, who is mentally, but not physically, able to live independently, has
a substantial functional limitation in the area of capacity for independent living. Resolving this
issue requires this Court to construe the phrase “[c]apacity for independent living” in MCL
330.1100a(21)(a)(iv)(F).
The primary goal of statutory interpretation is to ascertain and give effect to the
Legislature’s intent as expressed by the language of the statute. Neal v Wilkes, 470 Mich 661,
665; 685 NW2d 648 (2004). Courts must give effect to every word, phrase, or clause in a statute
and avoid an interpretation that renders nugatory or surplusage any part of a statute. Koontz v
Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Provisions must be read in
the context of the entire statute so as to produce a harmonious result. People v Couzens, 480
Mich 240, 249; 747 NW2d 849 (2008).
In affirming hearing referee Snider’s determination that petitioner possessed the
“capacity for independent living” notwithstanding her physical inability to live independently,
the trial court essentially imposed a limitation or restriction on the phrase “capacity for
independent living” that is not included in the statute itself. The circuit court’s and Snider’s
interpretation of the phrase “capacity for independent living” in MCL 330.1100a(21)(a)(iv)(F)
precludes an individual who is mentally, but not physically, able to live independently from
possessing a substantial functional limitation in the “capacity for independent living” area of
major life activity. The error in such a construction is that the Legislature did not so limit the
phrase “capacity for independent living.” The word “mental” or “intellectual” does not appear
before the provision “capacity for independent living.” The Legislature could have imposed
such a limitation, but it did not do so. In construing a statute, this Court will not read anything
into clear statutory language that is not within the manifest intent of the Legislature as derived
from the words of the statute itself. City of Warren v Detroit, 261 Mich App 165, 169; 680
NW2d 57 (2004). If the Legislature had intended to preclude an individual who is physically,
but not mentally, incapable of living independently, from being considered as having a
substantial functional limitation on his or her “capacity for independent living,” it would have
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explicitly so indicated by including the term “mental” or “intellectual” before the phrase
“capacity for independent living.” We decline to read such a limitation into the statute when the
Legislature did not include it in the statute itself.3
The fact that the Legislature referred to both “mental and physical impairments” in MCL
330.1100a(21)(a)(i) provides further support for the conclusion that an individual who lacks
either the mental or physical capacity for independent living has a substantial functional
limitation under MCL 330.1100a(21)(a)(iv)(F). The Legislature’s reference to “mental and
physical impairments” in MCL 330.1100a(21)(a)(i) shows that the Legislature was cognizant of,
and considered the distinction between, mental and physical impairments or capacities. The
omission of language from one part of a statute that is included in another part should be
construed as intentional. Thompson v Thompson, 261 Mich App 353, 361 n 2; 683 NW2d 250
(2004). The fact that the Legislature chose not to limit the word “capacity” in MCL
330.1100a(21)(a)(iv)(F) by inserting the word “mental” before it, when the Legislature clearly
recognized the distinction between mental and physical impairments earlier in the statute, is
further evidence that the Legislature did not intend to limit a person’s capacity to live
independently to the person’s mental capacity for independent living.
Further support for the conclusion that “capacity for independent living” is not limited to
an individual’s mental capacity to live independently is found in the dictionary definition of the
term “capacity.” The Legislature did not define the phrase “capacity for independent living” or
expressly state whether the phrase encompassed only an individual’s mental or physical capacity
for independent living. We give undefined terms their ordinary meanings. Haynes v Neshewat,
477 Mich 29, 36; 729 NW2d 488 (2007). Furthermore, we may consult a dictionary to construe
the meaning of an undefined term. Id. Merriam-Webster’s Online Dictionary (2009) defines
“capacity” as “an individual’s mental or physical ability[.]” In light of this dictionary definition
of the term “capacity,” it is reasonable to construe the phrase “capacity for independent living” to
include an individual’s mental or physical capacity for independent living.
In sum, we find that the circuit court erred in construing the phrase “capacity for
independent living” as being limited to an individual’s mental capacity to live independently.
Such a narrow construction of the phrase is not supported by the plain language of the statute or
the dictionary definition of the word “capacity.” Because the parties agree that petitioner
possesses substantial functional limitations in two other areas of major life activities listed in
MCL 330.1100a(21)(a)(iv), petitioner is developmentally disabled under MCL 330.1100a(21)
and is therefore entitled to § 1915(b) supports and services.
3
We observe that the testimony of Dr. Tom Seilheimer regarding his definition or interpretation
of the phrase “capacity for independent living” is irrelevant to our construction of MCL
330.1100a(21)(a)(iv)(F). This Court’s responsibility in interpreting a statute is to examine and
give effect to the language used by the Legislature without regard to our own opinions or the
opinions of any other individuals.
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Reversed.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Cynthia Diane Stephens
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