Opinion
No. 66436-1-I
09-17-2012
In the Matter of the Guardianship of RICK LEAVITT, An Incapacitated Person CAROLINE KLINE GALLAND HOME, Appellant, v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.
UNPUBLISHED OPINION
Ellington, J. — Rick Leavitt is a resident at Caroline Kline Galland Home (Galland), a privately-owned skilled nursing facility. His income is limited to Social Security, and his care is largely paid for by Medicaid. Galland petitioned for guardianship of Leavitt and requested attorney fees from his estate. The Department of Social and Health Services (DSHS) intervened and objected to Galland's request for fees. The superior court entered the guardianship and awarded fees but limited the award to $700. Galland appeals.
We affirm.
BACKGROUND
Statutory Framework: Guardianship
Creation of a guardianship begins when a petition alleging a person's incapacity is filed in superior court. A private party may file a guardianship petition, or, where no private party is available, the attorney general may file. If incapacity is established, the court appoints a guardian to help make decisions on that person's behalf. The court retains authority to oversee the guardian's exercise of power and execution of duties, including the duty to pay all just claims against the estate of the incapacitated person under RCW 11.92.035 and the power to determine his or her own compensation under RCW 11.92.180.
RCW 11.88.010, .030.
RCW 11.88.030(3)(a) ("The attorney general may petition for the appointment of a guardian or limited guardian in any case in which there is cause to believe that a guardianship is necessary and no private party is able and willing to petition.").
RCW 11.88.010. "[A] person may be deemed incapacitated as to person when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety." RCW 11.88.010(1)(a).
Guardianship of Hallauer, 44 Wn. App. 795, 797, 723 P.2d 1161 (1986) (guardianships are equitable creations of the court, and the court retains ultimate responsibility for protecting the ward's person and estate).
Statutory Framework: Medicaid
The Medicaid program grants federal funds to states for medical services to needy citizens. A state's Medicaid plan must include "reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan." Medicaid will not reimburse a state for an institutionalized Medicaid patient's care to the extent the patient can contribute to the cost of his or her care. In Washington, the monthly amount paid by an institutionalized patient toward the cost of care is called "participation." Any reduction in the patient's contribution must be made up by Medicaid funds.
Guardianship of Lamb, 173 Wn.2d 173, 186, 265 P.3d 876 (2011).
Id. at 187.
To calculate participation, DSHS first determines the patient's total income, then makes certain required deductions, including a "personal needs allowance." In Washington, court-ordered guardian compensation may also be deducted from a patient's income prior to determining his or her participation in the cost of care. The federal Medicaid agency has approved this deduction as part of Washington's Medicaid plan.
WAC 388-513-1380(4), (5); see also 42 C.F.R. § 435.832(c). A personal needs allowance is to be used for clothing and "other personal needs." WAC 388-513-1301.
WAC 388-513-1380(4)(d).
See Clerk's Papers at 289.
Exercising its rule-making authority under RCW 11.92.180, DSHS has established regulations providing conditions and limitations for guardianship fees and compensation. Under WAC 388-79-030(2), the court may compensate a guardian for administrative costs directly associated with establishing guardianship for a DSHS client, including attorney fees, not to exceed $700.
RCW 43.20B.460 ("The department of social and health services shall establish by rule the maximum amount of guardianship fees and additional compensation for administrative costs that may be allowed by the court as compensation for a guardian or limited guardian of an incapacitated person who is a department of social and health services client.").
FACTS
Rick Leavitt is 56 years old and has lived and received care at Galland since 2008. He suffers from multiple sclerosis, which causes him both physical and cognitive impairment. His diagnoses also include hypothyroid, trigeminal neuralgia (a painful condition of the nerve responsible for most facial sensation), depression, recurrent urinary tract infections, and a neurogenic bladder. He receives nutrition both orally and by a feeding tube.
Leavitt receives $1,118 per month from Social Security. Due to his disability and low income, he has qualified for financial assistance for medical expenses from the federal Medicaid program since 2001. DSHS calculated Leavitt's participation toward his nursing home care as his $1,118 Social Security income, less a $57.28 personal needs allowance. Medicare pays the additional $4,577.18 per month to cover the cost of his care.
Leavitt's estate also includes a nursing home trust account in the amount of $995.
See 42 U.S.C. § 1396a(a)(17)(B) (standards prescribed in determining individual's available income for purposes of Medicare eligibility).
See WAC 388-513-1380(4)(a)(v) (establishing minimum personal allowance for DSHS clients in medical institution).
By May 2010, Leavitt's cognitive ability to make and communicate decisions about his own care had became unreliable, and was further diminished by weakness and fatigue. Galland filed a petition for guardianship of Leavitt's person and estate. Following a hearing on July 7, 2010, the court found Leavitt incapacitated and appointed three family members as co-guardians.
Although Leavitt did not contest the guardianship, he requested representation in the matter and the court appointed an attorney for him.
Galland's petition included a request that its attorney fees be paid in full by Leavitt's estate, and that the fees be deducted from Leavitt's income prior to DSHS's participation calculation. Galland asked for
an Order directing that said amounts be allowed as a deduction against Mr. Leavitt's participation and be paid from guardianship income prior to its application for cost of care, and that pursuant to RCW 11.92.035 and 11.92.180 and to WAC 388-79, said funds should not be considered available to Mr. Leavitt or his guardian to pay for the costs of his institutional or medical care, and that they should not be considered by the Department of Social and Health Services or any other entity or person to be assets of Mr. Leavitt.
Clerk's Papers at 7.
Galland provided notice of its petition and request for fees to DSHS. DSHS filed a notice of appearance on June 2, and objected to Galland's request for attorney fees, challenging the court's authority to enter an order affecting how DSHS applies Medicaid regulations.
The parties do not discuss the propriety of Galland's request for fees in light of the authority of the attorney general to file the petition for guardianship under RCW 11.88.030(3)(a).
Following a hearing on the issues, a court commissioner determined that DSHS had standing to intervene and that Galland had not timely objected, and that the superior court had authority to issue an order regarding DSHS's calculation of Leavitt's participation. It found that Galland incurred reasonable attorney fees of $2,069.50 and costs of $55.15 in establishing the guardianship, but that given Leavitt's income, "compensation at counsel's regular hourly rate is prohibitive, and some equitable reduction is necessary." The court awarded $700 based on RCW 11.96A.150 and WAC 388-79-030(2).
Clerk's Papers at 116 (Finding of Fact 7).
A superior court judge denied Galland's motion for revision and entered findings and conclusions consistent with the commissioner's order. Galland appeals.
DISCUSSION
RCW 11.96A.150 gives a superior court discretion to grant attorney fees to a party as part of any Title 11 RCW action, including guardianship proceedings. Under an abuse of discretion standard of review, we will uphold a trial court's decision regarding fees unless it is manifestly unreasonable, or based on untenable grounds or reasons. Where the trial court applies an erroneous view of the law, it necessarily abuses its discretion.
In re Estate of Black, 153 Wn.2d 152, 173, 102 P.3d 796 (2004). Galland brought its petition for guardianship under RCW 11.88.030. No section of chapter 11.88 RCW explicitly grants the court authority to award attorney fees in a guardianship proceeding. Guardianship of Matthews, 156 Wn. App. 201, 213 n.7, 232 P.3d 1140 (2010).
Black, 153 Wn.2d at 172. On appeal of an order denying revision of a court commissioner's decision, this court reviews the ruling of the superior court judge, not the commissioner. In re Estate of Wright, 147 Wn. App. 674, 680, 196 P.3d 1075 (2008).
Dix v. ICT Group, Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).
Galland first disputes DSHS's standing to intervene. The propriety of intervention is an issue within the trial court's discretion. Following DSHS's appearance in the proceedings on June 2, 2010, Galland made no timely objection. And, in any case, the order requested by Galland implicated DSHS's administrative authority to determine Leavitt's Medicaid benefits, clearly establishing a basis for DSHS's intervention. The court did not abuse its discretion by allowing DSHS to intervene.
See Clerks' Papers at 114 (Finding of Fact 11). Galland did not challenge this finding of fact by the commissioner on reconsideration and the court did not make a contrary finding on revision. Unchallenged findings of fact are verities on appeal. Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002).
Galland also challenges the amount of the fee award for establishing the guardianship, which is less than half the amount it incurred. But under RCW 11.96A.150, the court has discretion to award fees in an amount it determines equitable. Galland has not demonstrated that the decision to reduce the fee award on grounds of equity was an abuse of discretion in light of Leavitt's extremely limited resources. Additionally, WAC 388-79-030(2) limits administrative costs for establishing a guardianship to $700. The court's use of this regulation as a guideline for reduction of fees was also reasonable.
DSHS challenges the authority of the court to order it to deduct the $700 from Leavitt's income prior to calculating Leavitt's participation. But DSHS did not cross appeal, and resisted Galland's motion for revision. Further, DSHS has stated it would have calculated Leavitt's participation just as the court did even absent the court's order. We thus decline to address this issue.
"Failure to cross-appeal an issue generally precludes its review on appeal." Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 202, 11 P.3d 762 (2000), 27 P.3d 608 (2001).
DSHS explains that it considers the $700 attorney fee award a reasonable personal needs exception in this case, and would calculate Leavitt's participation as the court describes even absent the court's order in this case. Br. of Resp't at 18.
Galland next contends the court abused its discretion by declining to award fees incurred in defending DSHS's objection. But an award of fees to either party under RCW 11.96A.150 is unwarranted where the case raises novel issues of statutory construction. Here, both parties raised novel issues about the interpretation of the guardianship statute and DSHS guardianship compensation regulations. The court did not abuse its discretion under RCW 11.96A.150, and for the same reason, we decline to award Galland fees on appeal.
In re Estate of D'Agosto, 134 Wn. App. 390, 401-02, 139 P.3d 1125 (2006).
Galland also argues it was entitled to fees under the Equal Access to Justice Act, which provides that "a court shall award a qualified party that prevails in a judicial review of an agency action fees and other expenses, including reasonable attorneys' fees." RCW 4.84.350. But, under RCW 4.84.340(4), "judicial review" refers to a specific review process defined under the Administrative Procedure Act. See RCW 34.05.546; see generally RCW 34.05.510-.595. Galland did not engage in this process; thus, the Equal Access to Justice Act does not apply.
Affirmed.
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WE CONCUR:
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