Change in the Law. The decedents’ estates “had [no] due process right to the continuation of the favorable Medicaid law that allowed [the] decedents to receive benefits from the state without having to repay them.” In re Gorney Estate, ___ Mich App ___, ___ (2016). “Standing alone, [the] change in law [to require that the benefits received be repaid to the state upon the death of the recipient from the recipient’s estate] did not deprive the decedents of their rights to due process.” Id. at ___ (citations omitted).
Recovery of Costs Expended Before Implementation of MMERP. The Department of Health and Human Services (DHHS) “would violate MCL 400.112g(5) and the decedents’ rights to due process by taking property to cover a Medicaid ‘debt’ incurred before the program creating the debt [(the MMERP)] was approved and implemented.” In re Gorney Estate, ___ Mich App ___, ___ (2016). MCL 400.112g(5), requiring the DHHS to obtain approval from the federal government before implementing the MMERP, was violated where “[t]he DHHS sought ‘to give practical effect’ to its recovery plan by making it ‘effective’ July 1, 2010[,]” even though “[t]he DHHS did not ‘implement’ the MMERP until . . . July 1, 2011, after the [federal Centers for Medicare & Medicaid Services] approved the plan.” Gorney, ___ Mich App at ___. “By applying the recovery program retroactively to July 1, 2010, the . . . [decedents were] deprived . . . of their right to elect whether to accept benefits and encumber their estates, or whether to make alternative healthcare arrangements[;]” this “impinged on the decedents’ rights to dispose of their property[]” during their lives. Id. at ___ (citations omitted).
Statutory Notice Provided in Medicaid Redetermination Applications. The statutory notice provided by the Department of Health and Human Services (DHHS) regarding estate recovery was sufficient under MCL 400.112g(3)(e) and MCL 400.112g(7) where “the decedents began receiving Medicaid benefits after the September 30, 2007[,] passage of 2007 PA 74[,]” which empowered the DHHS to establish the MMERP; “[a]lthough the initial Medicaid applications . . . filed by the decedents, or a personal representative on their behalves, contained no information about estate recovery[,]” the DHHS “complied with [the] statutory notice requirements by informing the decedents of estate recovery provisions in annual ‘redetermination’ applications[.]” In re Gorney Estate, ___ Mich App ___, ___ (2016) (citing In re Keyes Estate, 310 Mich App 266, 272-273 (2015), and noting that “[t]he statutes . . . do not demand a separate notification or that the new provision be highlighted in any manner[]”). Furthermore, “[t]he estates had the . . . opportunity to contest the estate recovery claims in the probate court, and therefore received the notice and opportunity to be heard required to satisfy due process.” Gorney, ___ Mich App at ___, citing Keyes, 310 Mich App at 274-275.