Ketching Up on Estate Recovery

Tomorrow, Tuesday, is a red letter day in the elder law world. The Court of Appeals will hear oral arguments in the matter of In Re Estate of Ketchum.

Ketchum is the fist case that has gone up to the COA to address that portion of Michigan’s estate recovery law which excludes an amount equal to 50% of the average home value. Specifically, Michigan’s estate recovery law, MCL 400.112g, says:

(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:

  1. 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.

This is versus what the subsequently adopted policy actually provides, as set forth in BAM 120, at pages 8-9 [click here to read]. That policy characterizes this exception as a hardship waiver, and establishes almost unachievable thresholds to qualifying.  The policy goes well beyond the plain language of the statute, and essentially eviscerates the protections the legislature presumably intended when it was passed.

Best foot forward. The good news is that attorney David Shaltz of Chalgian and Tripp will be making the oral argument in this case.  Nobody is better qualified to handle this argument, and to explain the law and history that underlies it.  Thanks to Attorney Charlotte Shoup, the attorney who represents the estate, for graciously inviting David to take on this role.

Conclusion. Expect several weeks or months before a decision.  Expect a published decision.  But don’t get your hopes up.  In its recent opinions on Medicaid long term care issues, the Court of Appeals has not been a friendly place.