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### STATE OF MICHIGAN

COURT OF APPEALS

In re Estate of KEYES.

DEPARTMENT OF COMMUNITY HEALTH,

Appellant, FOR PUBLICATION April 16, 2015 9:05 a.m.

v No. 320420 Bay Probate Court ESTATE OF ESTHER KEYES, LC No. 13-049103-CZ

Appellee.

Before: O’C ONNELL , P.J., and F ORT H OOD and G ADOLA , JJ.

O’C ONNELL , P.J.

The Department of Community Health (the Department) appeals as of right the trial court’s order granting summary disposition to the estate of Est her Keyes under MCR 2.116(C)(10). The Department sought estate recovery under Mich igan’s Medicaid estate recovery program, MCL 400.112g et seq (the Act). The trial court ruled that the estate did not receive sufficient statutory notice under the Act and estate re covery would violate the estate’s due process rights. Because we co nclude that the Department pr ovided the estate with timely notice when the estate sought Medicaid benefits in May 2012, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

In 2007, our Legislature amended the Michigan Social Welfare A ct. 2007 PA 74. This amendment required the Department to establish a Medicaid estat e recovery program, which would not be implemented until approved by the federal governme nt. See MCL 400.112g(2) and (5). The federal government di d not approve Michigan’s program until July 2011.-2- Esther Keyes was admitted to a nursing home in April 2010 and began receiving Medicaid 1 benefits. In May 2012, Robert Keyes filled out a Medicaid app lication form and acknowledged that the estate was subject to Medicaid recovery:

I understand that upon my death the Michigan Department of Comm unity Health has the legal right to seek recovery from my estate for service s 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, b lind, or disabled living in the home. An estate consists of real and personal pr operty. Estate Recovery only applies to certain Medicaid recipients who receiv ed Medicaid services after the implement ation date of the program. . . .

Esther Keyes died in January 2013 and the Department sought rec overy against her estate. When the estate disallowed the expense, the Department filed suit ag ainst the estate, seeking to recover about $110,000.

The estate moved for summary disposition under MCR 2.116(C)(10 ), contending that the Department could not recover beca use the Department did not not ify Esther Keyes of the possibility of estate recovery when she enrolled in Medicaid. The trial court determined that the Department had failed to notify recipients “at the time of enro llment,” as the Act required. It also determined that this failure violated the estate’s due pro cess rights. It therefore granted summary disposition in fa vor of the estate.

II. STANDARDS OF REVIEW

This Court reviews de novo issu es of due process and the trial court’s decision on a motion for summary disposition. Elba Twp v Gratiot Co Drain Comm’r , 493 Mich 265, 277; 831 NW2d 204 (2013). A party is entitled to summary dispositio n under MCR 2.116(C)(10) when “there is no genuine issue as to any material fact, and th e moving party is entitled to judgment . . . as a matter of law.”

This Court reviews de novo issu es of statutory interpretation. State ex rel Gurganus v CVS Caremark Corp , 496 Mich 45, 57; 852 NW2d 103 (2014). “The goal of statutory interpretation is to give effect to the Legislature’s intent, f ocusing first on the statute’s plain language.” Id . at 59 (quotation marks and citation omitted). This Court exa mines statutes as a whole. Id . When interpreting a word or phrase, we consider its context and purpose in the statutory scheme. Id . at 61.

III. TIMING OF THE STATUTORY NOTICE

1 Medicaid is a federal program that provides medical assistance to low-income individuals. See 42 USC 1396 et seq

.-3- The Act only applies to Medicaid recipients who began receivin g benefits after September 30, 2007. MCL 400.112k. It contains two provisions concerning notice, and their context and interacti on is particularly pert inent to the resolu tion of this case:

(3) The department of commun ity health shall seek appropriate changes to the Michigan medicaid state plan and shall apply for any necess ary waivers and approvals from the federal centers for medicare and medicaid se rvices to implement the Michigan medicaid estate recovery program. The d epartment of community health shall seek approval from the federal centers f or medicare and medicaid regarding all of the following:

(a) Which medical services are subject to estate recovery unde r section 1917(b)(1)(B)(i) and (ii) of title XIX.

(b) Which recipients of medical assistance are subject to esta te recovery under section 1917(a) an d (b) of title XIX.

(c) Under what circumstances the program shall pursue recovery from the estates of spouses of recipients of medical assistance who are subject to estate recovery under section 1917( b)(2) of title XIX.

(d) What actions may be taken to obtain funds from the estates of recipients subject to recovery under section 1917 of title XIX, including notice and hearing procedures that may be pursued to contest actions t aken under the Michigan medicaid estat e recovery program.
(e) Under what circumstances the estates of medical assistance recipients will be exempt from the Michigan medicaid estate recovery progr am because of a hardship. At the time an individual enrolls in medicaid for long-term care services, the department of community he alth 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 . . . .

* * *

(f) The circumstances under which the department of community health may review requests for exemptions and provide exemptions from the Michigan medicaid estate recovery program for cases that do not meet the definition of hardship developed by the depart ment of community health.

(g) Implementing the provision s of section 1396p( b)(3) of titl e XIX to ensure that the heirs of persons subject to the Michigan medica id estate recovery program will not be unreasonably ha rmed by the provisions of th is program.

* * *-4- (7) The department of community health shall provide written information to individuals seeking medicaid eligibility for long-term care services describing the provisions of the Michigan me dicaid estate recovery program , including, but not limited to, a statement that some or all of their estate ma y be recovered. [MCL 400.411g (emphasis added).]

The estate contends that 400.112g(3)(e) requires the Departmen t to provide an estate recovery notice to individuals w hen they enroll in Medicaid for long-term care. The Department contends that this language is part of a subsection that requir es it to seek guidance from the federal government and, because MCL 400.112g(7) does not mirror this language, the Act did not require it to notify Esther Keyes about estate recovery whe n she enrolled in Medicaid. After reviewing these provisions in cont ext, we agree with the Depart ment.

We conclude that the timing provision of MCL 400.112g(3)(e) do es not apply in this case. MCL 400.112g(3)(e) provides that “[a]t the time an indiv idual enrolls in medicaid for long-term care services, the department of community health sha ll provide to the individual written materials explaining the process for applying for a wai ver from estate recovery due to hardship.” Read in isolation, this provision appears to suppor t the estate’s position. But we may not read this provision in isolation. Gurganus , 496 Mich at 61.

Subsection (3)(e) is part of the larger Subsection (3), which requires the Department to seek approval from the federal government regarding the items l isted in the subdivisions. In this case, the estate does not assert that the Department failed to seek approval from the federal government concerning the estate recovery notice. Rather, the estate asserts that it did not personally receive a timely notice.

The Act contains a second provision concerning notice, and thi s provision has different language. MCL 400.112g(7) provides that “[t]he department of c ommunity health shall provide written information to individual s seeking medicaid eligibility for long-term care services describing the provisions of the Michigan medicaid estate recov ery program, . . .” When the Legislature includes language i n one part of a st atute that it omits in another, this Court presumes that such an omission was intentional. Polkton Charter Twp v Pellegrom , 265 Mich App 88, 103; 693 NW2d 170 (2 005). Subsection (7) ap plies to the estate ’s case because the estate alleges that Esther Keyes did not receive sufficient notice of estate r ecovery. Subsection (7)’s language is similar to that in Subsection (3)(e), but there is one major difference—timing. Subsection (3)(e) states “at the time an individual enrolls in medicaid,” while Subsection (7) states that the Department must provide a notice when an individual “seek[s] me dicaid eligibility[.]” We presume the Legislature’s decision not to use the word “enrollm ent” in Subsection (7) was intentional.

In this case, the distinction between enrolling in Medicaid an d seeking Medicaid eligibility is determinative. Esther Keyes enrolled in Medicai d in April 2010, which is after September 30, 2007. She did not receive notice of estate recov ery because the federal government had not approved a notice pursuant to Subsection (3) (e). In May 2012, Robert Keyes filled a “MEDICAID APPLICATION Patient of Nursing Facilit y” form on Esther’s behalf. This form included a no tice about estate recovery. He r previous enrollment did not change the fact that Robert Key es sought medicaid eligibility o n her behalf by filling out an-5- application in 2012. And, as part of that application, the Dep artment did provide written materials explaining and describi ng estate recovery and warning that some of Esther’s estate could be subject to e state recovery.

We conclude that the trial court erred because the Department sufficiently notified Esther that her estate could be subject to estate recovery. MCL 400.1 12g(7) allows the Department to engage in estate recovery when the individual has sought Medicaid benefits a fter being provided with a notice regarding estate recovery. In this case, Robert Keyes sought Medicaid benefits on Esther’s behalf in 2012, after the Department provided him with a proper notice re garding estate recovery. MCL 400.112g(3)(e) did not require the Department to provide this notice when Esther enrolled in Medicaid.

IV. DUE PROCESS

The Department contends that the trial court erred when it det ermined that allowing estate recovery in this case w ould violate the estate’s due pro cess rights. We agree.

The Fourteenth Amendment to the United States Constitution and Article I, § 17 of the Michigan Constitution provide that the state shall not deprive a person of life, liberty, or property without due process of law. Elba Twp , 493 Mich at 288. Where a protected property interest is at stake, due process generally r equires notice and an opportun ity to be heard. Hinky Dinky Supermarket, Inc v Dep’t of Community Health , 261 Mich App 604, 606; 683 NW2d 759 (2004). Due process is a flexible concep t and different situations may demand different procedural protections. Mathews v Eldridge , 424 US 319, 334; 96 S Ct 893; 47 L Ed 2d 18 (1976). The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Id . at 333. The question is wheth er the government provided “not ice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their o bjections.” In re Petition by Wayne Co Treas , 478 Mich 1, 9; 732 NW2d 458 (2007) ( quotation marks and citat ion omitted).

In this case, the trial court determined that applying the Med icaid recovery act would violate Esther Keyes’s right t o due process because she did not receive notice of estate recovery at the time that she enrolled, as required by MCL 400.112g. Ho wever, we have already determined that MCL 400.112g does not require notice at the tim e of enrollment. Further, the trial court’s decision improperl y conflated statutory notice is sues with the notice issues involved in due process. In this case, the estate was personally appris ed of the Department’s action seeking estate recovery, and it had the opportunity to contest the possible deprivation of its property in the circuit court. It received both notice and a h earing, which is what due process requires. See Hinky Dinky Supermarket, Inc , 261 Mich App at 606.

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Because the appeal involved an issue of p ublic concern, no costs. MCR 7.219.

/s/ Peter D. O’Connell /s/ Karen M. Fort Hood /s/ Michael F. Gadola