Posted on: Tuesday, August 5th, 2014
Judge Barkey of Genesee County Probate Court recently issued an opinion in an estate recovery case. The case was handled by our office, Chalgian and Tripp Law Offices, PLLC. Click here to read her opinion.
As with most of these cases, in the Estate of James Shanks, the State filed a claim. The Estate disallowed the claim. The case was decided on cross motions for summary disposition.
The case is interesting in that it addresses the argument that the Attorney General has been moving toward in recent proceedings. Their argument has been that the “notice requirement” language in MCL 400.112(3)(e) does not impose a notice requirement but (based on introductory language in the statute) only requires that the State seek approval for a notice requirement from CMS. Judge Barkey considered this argument and rejected it.
However, Judge Barkey did not accept the proposition that once the State fails to provide notice at the time of the initial application, that defect cannot be cured. Rather Judge Barkey held that the notice defect was cured when an application for redetermination containing the estate recovery notice language was filed. The result was the Estate’s motion for summary disposition was granted in part and denied in part – that is, the State’s claim was allowed for costs incurred after a redetermination application was filed which contained estate recovery notice language.
On this argument regarding the notice language of section 3(e) and whether it only requires that DCH request approval from CMS to require a written notice, another case is pending before the Hillsdale Probate Court in which this issue was more thoroughly briefed and argued. In the Estate of Ralph Wilson, which was also handled by Chalgian and Tripp Law Offices, discovery was made into whether and to what extent the State did request approval of such a requirement in their interactions with CMS during the process for approval of the State Plan Amendment which authorized our current estate recovery program. Without going into more detail, the representations made by the Attorney General – that the State requested that there be notice requirements and that CMS rejected these requests – is tested and seems to come up short. That is, what discovery of the State’s communications suggests is just the opposite: that the State in fact represented to CMS that notice at the time of the initial application would be made, and that this representation provided a basis for approval of the State Plan amendment. Oral arguments were made at the end of July and we look forward to the decision in that matter shortly. We will report on it at that time.
As entertaining as these cases are, and have been, as time passes the number of these cases will diminish, along with the number of people who began receiving benefits prior to the time DHS began using the new applications.