
    
      In re KLEIN ESTATE
    Docket No. 329715.
    Submitted July 7, 2016, at Lansing.
    Decided July 19, 2016, at 9:05 a.m.
    Leave to appeal denied 500 Mich 947.
    The Department of Community Health (DCH), the predecessor of the Department of Health and Human Services, filed a claim and moved for summary disposition in the Saginaw Probate Court, alleging that it was entitled to recovery of Catherine Klein’s estate pursuant to MCL 400.112g, which permits estate recovery for services paid by Medicaid, and that, by failing to apply for a hardship waiver, Sharon Pumford, the personal representative of the estate, forfeited any right to such a waiver. Pumford also moved for summary disposition, asserting that the estate was exempt from the Medicaid claim given its value and that, pursuant to the plain language of MCL 400.112g(3)(e)(i), the estate was entitled to a hardship waiver as a matter of law. The court, Patrick J. McGraw, J., denied DCH’s summary-disposition motion and granted summary disposition in favor of the estate. DCH appealed.
    The Court of Appeals held:
    
    MCL 400.112g(3)(e)(¿) provides, in relevant part, that DCH shall seek appropriate changes to the Michigan Medicaid state plan and that, at the time an individual enrolls in Medicaid for long-term care services, DCH shall provide to the individual written materials explaining the process for applying for a waiver from an estate recovery due to hardship, which includes, but is not limited to, an exemption for the portion of the value of the medical assistance recipient’s homestead that is equal to or less than 50% of the average price of a home in the county in which the Medicaid recipient’s homestead is located as of the date of the medical assistance recipient’s death. MCL 400.112g(3Xe)(£) does not create a statutory entitlement to a hardship waiver; it merely instructs DCH to seek approval from the federal government on the topics enumerated in its subsections. Summary disposition in DCH’s favor is appropriate when an estate fails to apply for a hardship waiver. In this case, Pumford did not apply for a hardship waiver despite the fact that she was undisputedly informed that she was required to do so, and the estate was not statutorily entitled to a hardship waiver under MCL 400.112g(3)(e)(¿). Therefore, Pumford’s failure to apply for a waiver, alone, was dispositive, and summary disposition in DCH’s favor was required by law. The probate court erred by denying DCH’s summary-disposition motion and by granting summary disposition in favor of the estate.
    Reversed; case remanded for entry of an order granting summary disposition in DCH’s favor.
    Social Services — Social Welfare Act — Michigan Medicaid Estate Recovery — Hardship Waivers.
    MCL 400.112g(3)(e)(¿) provides that the Department of Health and Human Services (DHHS), formerly the Department of Community Health, shall seek appropriate changes to the Michigan Medicaid state plan and that, at the time an individual enrolls in Medicaid for long-term care services, DHHS shall provide to the individual written materials explaining the process for applying for a waiver from an estate recovery due to hardship, which includes, but is not limited to, an exemption for the portion of the value of the medical assistance recipient’s homestead that is equal to or less than 50% of the average price of a home in the county in which the Medicaid recipient’s homestead is located as of the date of the medical assistance recipient’s death; MCL 400.112g(3)(e)(£) does not create a statutory entitlement to a hardship waiver; summary disposition in DHHS’s favor is appropriate when an estate fails to apply for a hardship waiver.
    
      Bill Schuette, Attorney General, Aaron D. Lind-strom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Brian K. McLaughlin, Assistant Attorney General, for the Department of Health and Human Services.
    
      Bendure & Thomas (by Mark R. Bendure) and Douglas W. Taylor, PC (by Douglas W. Taylor), for Sharon Pumford.
    Before: OWENS, P.J., and BORRELLO and O’BRIEN, JJ.
   O’BRIEN, J.

The Department of Community Health (DCH or the Department), which has merged with the Department of Human Services and is now known as the Department of Health and Human Services, see Executive Order No. 2015-4, appeals as of right the probate court’s September 28, 2015 order denying its summary-disposition motion and granting summary disposition to the Estate of Catherine Klein (the estate). We reverse and remand for the entry of an order granting summary disposition in DCH’s favor.

I. FACTUAL AND PROCEDURAL BACKGROUND

Catherine Klein passed away in December 2013. Before her death, Sharon Pumford, who was authorized to act on Klein’s behalf, signed a Medicaid application that provided, in pertinent part, that she “ha[d] received and reviewed a copy of the Acknowledge-ments . . . .” The Acknowledgements provided, in pertinent part, as follows:

I understand that upon my death the Michigan Department of Community Health [MDCH] has the legal right to seek recovery from my estate for services paid by Medicaid. MDCH will not make a claim against the estate while there is a legal surviving spouse or a legal surviving child who is under the age of 21, blind, or disabled living in the home. An estate consists of real and personal property. Estate Recovery only applies to certain Medicaid recipients who received Medicaid after the implementation date of the program. MDCH may agree not to pursue recovery if an undue hardship exists. For further information regarding Estate Recovery call 1-877-791-0435.

At the time of her death, Klein’s only asset was her home in Chesaning, Michigan, which was “valued at $45,521.77,” according to Pumford. In March 2014, DCH filed a claim against the estate for $133,786.90, an amount reflective of the Medicaid benefits that were paid to Klein before her death. Pumford, as the personal representative of the estate, disallowed DCH’s claim, asserting that Klein’s home was exempt from the Medicaid claim because of its value. In January 2015, DCH filed the instant claim in the probate court estate proceeding, seeking “a judgment allowing the Department’s estate recovery claim in full” as well as an order requiring “payment according to the priority of the claims provision of MCL 700.3805.” DCH subsequently moved for summary disposition pursuant to MCR 2.116(C)(4) and (10), arguing that it was entitled to estate recovery pursuant to MCL 400.112g. Specifically, DCH argued that, by signing the Medicaid application, Pumford acknowledged that the estate was subject to recovery as well as that, by failing to apply for a hardship waiver, the estate forfeited any right to such a waiver. Pumford responded to DCH’s summary-disposition motion as well as filed her own summary-disposition motion on behalf of the estate. She argued that, pursuant to the plain language of MCL 400.112g(3)(e)(¿) alone, the estate was entitled to a hardship waiver as a matter of law. Further, Pumford contended that any other requirements implemented by DCH “eviscerated the statutory exemption and ignored the language and intent of the statutory exemption.” Therefore, Pumford asserted, the estate was entitled to summary disposition pursuant to MCR 2.116(1X2).

The probate court denied DCH’s summary-disposition motion and granted summary disposition in the estate’s favor. The court explained as follows:

The Court is not in agreement that everyone has to apply for the hardship in every case.
* *
The Court believes that MCL [4]00.112g(3), the Court finds that the statute mandates by the word shall, an exemption for the portion of the value of a Medicaid recipient’s home shall be given, this is in the statute or, quote, state plan. The Court finds it to be unambiguous.
The department of health and human services has not clarified this or ruled by the secretary of health and human services on this. In the Court’s opinion this exemption applies as mandatory and shall be given that the disallowance of the claim is upheld.
The Court does find that there is this inconsistency between the statute and administrative law issues and pursuant to MCR 2.116, I believe it’s [(I)(2)], the party opposing the motion for summary disposition has stated grounds that would allow them to have summary disposition granted in their place of claim, that summary disposition shall be granted and that’s what [the] Court is going to do.

The probate court entered a written order reflecting its decision on September 28, 2015, and DCH appealed that order.

II. ANALYSIS

On appeal, DCH argues that it, not Pumford, was entitled to summary disposition because MCL 400.112g(3)(e)(i) does not create a hardship waiver. And, because Pumford did not apply for a hardship waiver in this case, DCH contends that summary disposition in DCH’s favor was appropriate. We agree.

A. STANDARDS OF REVIEW

The application and interpretation of statutes, as well as the application and interpretation of administrative rules and regulations, present questions of law that are reviewed de novo. United Parcel Serv, Inc v Bureau of Safety & Regulation, 211 Mich App 192, 202; 745 NW2d 125 (2007). A statute’s, rule’s, or regulation’s words and phrases must be applied and interpreted according to their plain and ordinary meanings. Pohutski v Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). A trial court’s decision to grant summary disposition is also reviewed de novo. Karaus v Bank of New York Mellon, 300 Mich App 9, 16; 831 NW2d 897 (2012).

B. HARDSHIP WAIVER UNDER MCL 400.112g(3)(e)(i)

At issue in this case is MCL 400.112g(3)(e)(i), which provides, in pertinent part, as follows:

(3) The department of community health shall seek appropriate changes to the Michigan medicaid state plan and shall apply for any necessary waivers and approvals from the federal centers for medicare and medicaid services to implement the Michigan medicaid estate recovery program. The department of community health shall seek approval from the federal centers for medicare and medicaid regarding all of the following:
(e) Under what circumstances the estates of medical assistance recipients will be exempt from the Michigan medicaid estate recovery program because of a hardship. At the time an individual enrolls in medicaid for long-term care services, the department of community health shall provide to the individual written materials explaining the process for applying for a waiver from estate recovery due to hardship. The department of community health shall develop a definition of hardship according to section 1917(b)(3) of title XIX that includes, but is not limited to, the following:
(i) An exemption for the portion of the value of the medical assistance recipient’s homestead that is equal to or less than 50% of the average price of a home in the county in which the medicaid recipient’s homestead is located as of the date of the medical assistance recipient’s death.

The estate argues, and the probate court held, that DCH was statutorily required to grant plaintiff a home-of-modest-value hardship waiver under MCL 400.112g(3)(e)(¿). We disagree.

C. THE ESTATE’S FAILURE TO APPLY FOR A HARDSHIP WAIVER

To begin, as DCH correctly recognizes, this Court has previously held that summary disposition in DCH’s favor is appropriate when an estate fails to apply for a hardship waiver. In re Clark Estate, unpublished opinion per curiam of the Court of Appeals, issued May 28, 2015 (Docket No. 320720), p 6. The Court elaborated, stating that an estate’s personal representative “cannot now attempt to avail himself [or herself] of the waiver’s benefits without having followed the procedural rules necessary to claim the benefit.” Id. Because we find it persuasive, we adopt Clark’s reasoning in this regard. In this case, Pumford, the personal representative of the estate, admittedly did not apply for a hardship waiver despite the fact that she was undisputedly informed that she was required to do so. Therefore, we hold that her failure to apply for a waiver, alone, is dispositive, and summary disposition in DCH’s favor “was required by law[.]” Id.

D. THE APPLICATION AND INTERPRETATION OF MCL 400.112g(3)(e)(i)

Additionally, this Court has previously held that, on the basis of its plain and unambiguous language, “MCL 400.112g(3) merely instructs DCH to seek approval from the federal government on the topics enumerated in its subsections.” Id. at 7. We find Clark’s interpretation of MCL 400.112g(3) persuasive and adopt it as our own. That is, MCL 400.112g(3) is not, in and of itself, a statutory provision that “prohibits DCH from pursuing estate recovery against estates that include homes valued at ‘equal to or less than 50% of the average price of a home in the county in which the medicaid recipient’s homestead is located as of the date of the medical assistance recipient’s death.’ ” Id. (citation omitted). In this case, as in Clark, “MCL 400.112g(3) merely instructs DCH to seek approval from the federal government on the topics enumerated in its subsections,” including Subsection (3)(e)(i), and DCH did precisely that with its current state plan and Bridges Administrative Manual 120, which sets forth DCH’s policies. Id.; see Ketchum Estate v Dep’t of Health & Human Servs, 314 Mich App 485, 491-495; 887 NW2d 226 (2016). It does not, as Pumford contends and as the probate court concluded, create a statutory entitlement to a hardship waiver. As this Court has previously explained,

[i]f the Legislature had wanted to automatically prohibit DCH from pursuing estate recovery against estates that included homes valued at “equal to or less than 50% of the average price of a home in the county in which the medicaid recipient’s homestead is located as of the date of the medical assistance recipient’s death,” it would have prefaced such language with an explicit mandate, as in MCL 400.112g(2) and MCL 400.112g(8). [Clark, unpub op at 7 n 6.]

Therefore, we hold that the estate is not statutorily entitled to a hardship waiver under MCL 400.112g(3)(e)(i).

The estate’s arguments against this conclusion are without merit. First, it argues that Clark, as an unpublished opinion, is nonbinding. See MCR 7.215(J)(1). While legally correct, that assertion fails to acknowledge Clark’s persuasiveness. See Paris Meadows, LLC v Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d 133 (2010). Furthermore, as mentioned earlier, binding authority, i.e., Ketchum, compels an outcome consistent with that of Clark. Second, the estate argues that “there is no contention or evidence offered by the Department that it made any effort at all to even try to implement the 50% hardship exemption that the statute makes mandatory (“shall”). Clark did not provide the Department with the authority to ignore the statutory mandate.” As also discussed earlier, however, DCH’s current state plan and Bridges Administrative Manual 120 undermine that assertion. See Ketchum, 314 Mich App at 491-495. Third, the estate contends that “the Clark Court did not consider, much less decide, the mandatory nature of MCL 400.112g(3)(e)(¿)” or “the inability of a department to act contrary to the directives of authorizing legislation.” But, again, this Court did address the mandatory nature of MCL 400.112g(3)(e)(i), Clark, unpub op at 7 (stating that MCL 400.112g(3)(e)(t) “is not a binding mandate that prohibits DCH from pursuing estate recovery”), and DCH has complied with the requirements of MCL 400.112g(3)(e)(¿), see Ketchum, 314 Mich App at 501-507. Lastly, to the extent the estate argues that DCH’s definition of “undue hardship” is inconsistent with what is required by MCL 400.112g(3)(e)(¿), that argument is belied by the statutory provision’s own language. Specifically, contrary to the estate’s assertions, MCL 400.112g(3)(e) contains “express language (‘includes, but not limited to, the following’) granting the DHHS discretion to include other requirements for the hardship exemption.” Id. at 502.

III. CONCLUSION

Accordingly, we conclude that the probate court erred by denying DCH’s summary-disposition motion and by granting summary disposition in the estate’s favor. We therefore reverse its September 28, 2015 order and remand for the entry of an order granting summary disposition in DCH’s favor. In light of this conclusion, we need not address DCH’s argument that the probate court lacked subject-matter jurisdiction over the hardship-eligibility determination.

Reversed and remanded. No taxable costs pursuant to MCR 7.219, a question of public policy being involved.

OWENS, P.J., and BORRELLO, J., concurred with O’Brien, J.  