IN RE GORNEY ESTATE (Concurring Opinion)
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STATE OF MICHIGAN COURT OF APPEALS In re Estate of IRENE GORNEY. DEPARTMENT OF HEALTH AND HUMAN SERVICES, FOR PUBLICATION February 4, 2016 Plaintiff-Appellant, v No. 323090 Huron Probate Court LC No. 13-039597-CZ ESTATE OF IRENE GORNEY, Defendant-Appellee. In re Estate of WILLIAM B. FRENCH. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff-Appellant, v No. 323185 Calhoun Probate Court LC No. 2013-000992-CZ DANIEL GENE FRENCH, Personal Representative for the Estate of WILLIAM B. FRENCH, Defendant-Appellee. In re Estate of WILMA KETCHUM. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff-Appellant, -1- v No. 323304 Clinton Probate Court LC No. 14-028416-CZ ESTATE OF WILMA KETCHUM, Defendant-Appellee. In re Estate of OLIVE RASMER. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff-Appellant, v RICHARD RASMER, Personal Representative of the Estate of OLIVE RASMER, No. 326642 Bay Probate Court LC No. 14-049740-CZ Defendant-Appellee. Before: JANSEN, P.J., and CAVANAGH and GLEICHER, JJ. JANSEN, J. (concurring in part and dissenting in part). I concur with the majority’s determinations that the notice provided in the redetermination application was statutorily sufficient, the lack of notice at the time of enrollment did not violate due process, and the estates did not have a due-process right to the continuation of a favorable Medicaid law. However, I respectfully dissent from the majority’s determinations that the Department of Health and Human Services (DHHS) violated the due-process rights of the decedents by seeking to recover benefits expended between July 1, 2010 and July 1, 2011, and that the Ketchum Estate may raise the issue whether the DHHS abused its discretion in seeking recovery in the trial court on remand. With regard to the majority’s conclusion that the DHHS violated the decedents’ dueprocess rights by seeking to recover benefits expended between July 1, 2010 and July 1, 2011, I conclude that this Court’s decision in In re Keyes Estate, 310 Mich App 266; 871 NW2d 388 (2015) controls the outcome in this case. In Keyes, this Court concluded there was no dueprocess violation in spite of the fact that the decedent did not receive notice of the estate recovery program when she enrolled in Medicaid. Id. at 275. The decedent began receiving Medicaid benefits in April 2010. Id. at 268. However, the decedent was not notified about the possibility of estate recovery when she enrolled in Medicaid. Id. at 269. Instead, the decedent’s son signed a Medicaid application form in May 2012, which acknowledged that the estate was subject to estate recovery for services paid by Medicaid. Id. The trial court determined that the estate recovery program violated the decedent’s right to due process since she did not receive -2- notice of the estate recovery program when she enrolled in Medicaid. Id. at 275. However, this Court reasoned that the estate recovery program did not violate the estate’s right to due process since MCL 400.112g did not require notice at the time of enrollment. Id. This Court emphasized that the estate received notice and a hearing when it was informed of the estate recovery program and had the opportunity to contest the issue in the probate court. Id. Thus, this Court determined that there was no due-process violation in spite of the fact that the decedent began receiving Medicaid benefits in April 2010. See id. Although the issues surrounding the retroactive application of the estate recovery program were not directly raised in Keyes, the decision nevertheless dictates the outcome in this case. In Keyes, this Court stated that the decedent began receiving Medicaid benefits in April 2010, and it can be inferred that the Michigan Department of Community Health (now the DHHS) sought to recover an amount covering the period during which the decedent began receiving Medicaid benefits. Keyes, 310 Mich App at 268. Here, the DHHS sought to recover for Medicaid benefits paid on behalf of the decedents since July 1, 2010. Thus, this case is similar to Keyes since this Court in Keyes held that the estate recovery program did not violate due process in spite of the fact that the decedent began receiving Medicaid benefits in April 2010. See id. at 275. Therefore, I conclude that Keyes dictates the outcome that the estate recovery program did not violate the decedents’ right to due process. See id. Furthermore, even if Keyes did not control the outcome in this case, I do not believe that the retroactive application of the estate recovery program violated the decedents’ right to due process. The majority concludes that the Legislature deprived the decedents of their right to dispose of their property by affecting how the decedents chose to manage their property. “The Fourteenth Amendment to the United States Constitution and Article 1, § 17 of Michigan’s 1963 Constitution provide that the state shall not deprive a person of life, liberty, or property without due process of law.” Keyes, 310 Mich App at 274. An individual has a vested interest in the use and possession of real estate. Bonner v City of Brighton, 495 Mich 209, 226; 848 NW2d 380 (2014). Additionally, a property owner also has a legal right to dispose of his or her property. Loretto v Teleprompter Manhattan CATV Corp, 458 US 419, 435; 102 S Ct 3164; 73 L Ed 2d 868 (1982). As explained in Bd of Regents of State Colleges v Roth, 408 US 564, 577; 92 S Ct 2701; 33 L Ed 2d 548 (1972): Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. I do not believe that the interest articulated by the majority constitutes a protected property interest. The decedents were not deprived of the use and possession of their property during their lives. See Bonner, 495 Mich at 226. In addition, the decedents were not deprived of the right to dispose of their property through transfer or sale since the decedents were not prevented from selling or transferring their property while they were alive. See Loretto, 458 US at 435. At most, the interest at stake can be characterized as the right to choose how to manage property or the right to make alternative healthcare arrangements instead of encumbering an estate. See id. I conclude that there is no existing rule or common understanding establishing -3- the right to make alternative healthcare arrangements or the right to choose how to manage property. See Roth, 408 US at 577. Furthermore, even assuming that there is a due-process right that was violated when the DHHS applied the estate recovery program retroactively, the right is personal to the decedents, and it is impossible for the estates to know what alternative arrangements the decedents would have made. See id. Therefore, I conclude that the decedents were not deprived of a property interest. See Keyes, 310 Mich App at 274. I also do not believe that the estates have standing to challenge whether the estate recovery program violated the decedents’ due-process rights. MCL 700.3703(3) provides, “Except as to a proceeding that does not survive the decedent’s death, a personal representative of a decedent domiciled in this state at death has the same standing to sue and be sued in the courts of this state and the courts of another jurisdiction as the decedent had immediately prior to death.” (Emphasis added.) In this case, the property interest described in the majority opinion was personal to the decedents since it involved the decedents’ ability to make decisions regarding the management of their property. Thus, the property interest was not transferable to the estates, and the proceedings did not survive the death of the decedents. See id. Finally, I disagree with the majority’s conclusion that the Ketchum Estate may challenge on remand whether the DHHS abused its discretion in seeking estate recovery in violation of MCL 400.112g(4). MCL 400.112g(4) provides, “The department of community health shall not seek medicaid estate recovery if the costs of recovery exceed the amount of recovery available or if the recovery is not in the best economic interest of the state.” As noted by the majority, “[r]ecovery will only be pursued if it is cost-effective to do so as determined by the department at its sole discretion.” See Bridges Administrative Manual, BAM 120, p 7 (emphases added). Thus, the DHHS has the sole discretion to determine whether estate recovery is cost-effective pursuant to MCL 400.112g(4). See id. Therefore, I do not believe that the DHHS’s decision regarding the costs of estate recovery is reviewable by the trial court. See id. Accordingly, I respectfully disagree with the majority that the Ketchum Estate may raise the issue in the trial court on remand. For the reasons discussed above, I conclude that the trial courts erred in denying the DHHS’s collection attempts. I would reverse and remand for entry of judgment in favor of the DHHS. /s/ Kathleen Jansen -4-
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