And So It Ends – Perhaps

By Doug Chalgian on March 2, 2016

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The Ketchum case discussed in more detail in a prior post was just released. It is a published Court of Appeals opinion.  Click here to read the case.

This case arises in the context of a series of cases that have been decided by the COA since Michigan first adopted an “estate recovery” law in 2007. Each case has addressed the proper interpretation of that statute.  In each case the position of the Department of Community Health has been upheld.  The same is true in Ketchum

Whereas prior cases focused on the issue of proper notice to impose an estate recovery claim, Ketchum was the first case to address the so-called “home of modest value” exemption; which purports to exempt an amount from estate recovery, which amount is equal to 50% of the average home value in the county in which the house is situated. The issue was whether this exemption is as simple as the statute suggests, or whether the home value is only one factor in determining whether this “hardship waiver” is available.  As explained in prior posts, the requirements for obtaining this exemption as set forth in DHHS policy go far beyond the simple valuation analysis.

In Ketchum, the decision of he COA turns on the unusual fact that after the death of the Medicaid beneficiary, the house was sold. Accordingly, it could be argued that the case does not foreclose the possibility that situations in which the house is retained would not be controlled by this decision.  But the dicta of the case suggests otherwise.  The COA takes pains in its decision to equate this case to prior estate recovery decisions, and specifically to the provisions of the statute that allow DCH to negotiate terms and conditions regarding Michigan’s estate recovery program, and to include additional requirements not specifically addressed in the law.

This whole process of watching the law of estate recovery go from a statute, to policy and then through the Courts to clarify the appropriateness of policy; and where the line between law and policy is drawn, would make a great case study for law students. The suggestion could be made that the deck was stacked against advocates in the process, and that each of these opinions, adopting the Department’s position, was driven less by a desire to “get it right” than by the desire to endorse the Department in whatever they chose to do.  Aging advocates will no doubt be left with some frustration – perhaps justified.  In any event, this is our system.

While there remain legal theories that could continue this battle, it is uncertain whether anyone will have the time or inclination to pursue those avenues. In the meantime, this appears to be the end.

Click here to read the prior post on Ketchum.

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mm By: Doug Chalgian
Doug Chalgian

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