In re Estate of Centorbi

[Cite as In re Estate of Centorbi, 129 Ohio St.3d 78, 2011-Ohio-2267.]

IN RE ESTATE OF CENTORBI.

[Cite as In re Estate of Centorbi, 129 Ohio St.3d 78, 2011-Ohio-2267.]

Probate — Estate — Medicaid estate-recovery program — R.C. 2117.061(E) —

Administrator of Medicaid estate-recovery program must present claim

for estate recovery within either 90 days after filing of reporting form by

person responsible for the estate or within one year after decedent’s

death, whichever is later — Limitations periods operate in the alternative,

with later of two designated events constituting the deadline — Ninety-day

limit does not begin to run until estate-recovery administrator is properly

notified that estate may be subject to recovery of Medicaid assistance paid

to decedent.

(No. 2010-0597 — Submitted March 23, 2011 — Decided May 18, 2011.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 93501,

186 Ohio App.3d 263, 2010-Ohio-442.

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O’CONNOR, C.J.

{¶ 1} In this appeal, we address the statute of limitations governing the

recovery of assets from the estates of deceased Medicaid recipients.

{¶ 2} The controlling statute, R.C. 2117.061(E), states: “The

administrator of the medicaid estate recovery program shall present a claim for

estate recovery to the person responsible for the estate of the decedent or the

person’s legal representative not later than ninety days after the date on which the

medicaid estate recovery reporting form is received under division (B) of this

section or one year after the decedent’s death, whichever is later.”

{¶ 3} Appellee Diane Nancy Fiorille is the person responsible for the

estate of Josephine A. Centorbi. Fiorille asserts that the Medicaid estate-recovery

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program, which is administered by appellant, the Ohio Department of Job and

Family Services (“ODJFS”), is bound by a one-year statute of limitations in

making claims against a Medicaid beneficiary’s estate. ODJFS, however,

contends that the statute sets forth two alternative limitations periods: one that

limits claims to 90 days after the Medicaid estate-recovery form is received by the

Medicaid estate-recovery program administrator and one that limits claims to one

year after the decedent’s death. ODJFS further contends that it can still present its

claim against the Centorbi estate by relying on the 90-day statute of limitations,

even though it is more than one year beyond the death of Centorbi, because it was

not notified of its potential claim through a Medicaid estate-recovery reporting

form. We agree with ODJFS.

{¶ 4} R.C. 2117.061(E) sets forth alternative limitations periods that

allow ODJFS to file a claim against an estate within either 90 days of receiving

notice from the person responsible for the estate of a deceased Medicaid patient or

within one year of the decedent’s death, whichever is later. We hold that the 90-

day limitations period set forth in R.C. 2117.061(E) does not begin to run until the

administrator of the Medicaid estate-recovery program is notified of an estate

whose decedent was a Medicaid beneficiary who was 55 years of age or older.

Accordingly, we reverse the judgment of the court of appeals and remand to the

probate court for further proceedings consistent with this opinion.

Relevant Background

{¶ 5} Josephine A. Centorbi died intestate on February 12, 2007. At the

time of her death, Centorbi was more than 55 years old and receiving benefits

from the Medicaid program.

{¶ 6} Ten months after Centorbi’s death, her sister, Fiorille, acting

without counsel, filed an application to relieve the estate from administration. It

is undisputed that when Fiorille filed the application, she did not check the box on

the form that appears next to the following statement: “Decedent was fifty-five

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years of age or older at the time of death and was a recipient of medical assistance

under Chapter 5111 of the Revised Code. Form 7.0 Notice to Administrator of

Estate Recovery Program has been or will be filed.” It is also undisputed that

Fiorille did not file the requisite form.

{¶ 7} R.C. 2117.061(B)(3) mandated that Fiorille, as the person

responsible for the estate, complete a Medicaid estate-recovery reporting form

within 30 days of filing the application to relieve the estate from administration.

She did not do so. Consequently, the probate court was never informed that

notice to the Medicaid estate-recovery program was required. The court granted

Fiorille’s application to relieve the estate from administration on the same day it

was filed.

{¶ 8} ODJFS later learned that Centorbi was a deceased Medicaid

beneficiary whose estate had been relieved from administration. On January 27,

2009, ODJFS filed an “application to vacate order releasing assets from

administration." The probate court magistrate denied the motion. In her decision,

the magistrate wrote, “In this case, the person responsible for the estate, Diane

Nancy Fiorille, indicated that no notice was required to be given to the

Administrator of the Estate Recovery Program and therefore did not submit a

reporting form. * * * Since no form was filed, under ORC Section 2117.061(E),

the Administrator of the Estate Recovery Program had one year from the

decedent’s date of death to make the claim, or February 12, 2008. No claim was

made. Therefore, the claim is barred.” The probate court judge adopted the

magistrate’s ruling over ODJFS’s objections.

{¶ 9} On appeal, a divided court of appeals affirmed. We accepted

ODJFS’s discretionary appeal from that judgment, which presents a single

proposition: under the plain language of R.C. 2117.061, the state has either one

year from the date of a Medicaid recipient’s death or 90 days after receiving

notice of the death, whichever is later, to file a claim for Medicaid estate

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recovery. In re Estate of Centorbi, 125 Ohio St.3d 1461, 2010-Ohio-2753, 928

N.E.2d 737.

Analysis

Statute of Limitations

{¶ 10} “Statutes of limitations foster important public policies: ensuring

fairness to the defendant, encouraging prompt prosecution of causes of action,

suppressing stale and fraudulent claims, and avoiding the inconvenience

engendered by delay and by the difficulty of proving older cases.” Cundall v.

U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶22, citing

O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 88, 4 OBR 335, 447

N.E.2d 727. Statutes of limitations are therefore valuable to the parties to a

dispute, society in general, and the administration of justice.

{¶ 11} We have consistently recognized that it is the General Assembly’s

role to consider and establish limitations periods, see, e.g., Leininger v. Pioneer

Natl. Latex, 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶ 32, and that

we may not substitute our judgment for that of the legislature. Eppley v. Tri-

Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, 908

N.E.2d 401, ¶ 17. Instead, our role is to apply the legislature’s designated

limitations on causes of action.

{¶ 12} In determining how to apply a statute, “our paramount concern is

the legislative intent in enacting the statute.” State ex rel. Steele v. Morrissey, 103

Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. “ ‘In determining

legislative intent, the court first reviews the applicable statutory language and the

purpose to be accomplished.’ ” Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-

Ohio-5589, 876 N.E.2d 546, ¶ 20, quoting State ex rel. Watkins v. Eighth Dist.

Court of Appeals (1998), 82 Ohio St.3d 532, 535, 696 N.E.2d 1079. In doing so,

we must give effect to every word and clause in the statute. Boley v. Goodyear

Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, 929 N.E.2d 448, ¶ 21.

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{¶ 13} A statute’s wording “ ‘may not be restricted, constricted, qualified,

narrowed, enlarged or abridged; significance and effect should, if possible, be

accorded to every word, phrase, sentence and part of an act.’ ” Weaver v. Edwin

Shaw Hosp., 104 Ohio St.3d 390, 2004-Ohio-6549, 819 N.E.2d 1079, ¶ 13,

quoting Wachendorf v. Shaver (1948), 149 Ohio St. 231, 36 O.O. 554, 78 N.E.2d

370, paragraph five of the syllabus. “No part should be treated as superfluous

unless that is manifestly required, and the court should avoid that construction

which renders a provision meaningless or inoperative.” State ex rel. Myers v.

Spencer Twp. Rural School Dist. Bd. of Edn. (1917), 95 Ohio St. 367, 373, 116

N.E. 516.

{¶ 14} When we conclude that a statute’s language is clear and

unambiguous, we apply the statute as written, Cheap Escape Co., Inc. v. Haddox,

L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 9, giving effect

to its plain meaning. Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574,

paragraph two of the syllabus. This is a case in which we are presented with clear

and unambiguous language.

Language of R.C. 2117.061(E)

{¶ 15} As noted previously, R.C. 2117.061(B) requires the person

responsible for the estate of a decedent subject to the Medicaid estate-recovery

program to “submit a properly completed medicaid estate recovery reporting

form” within 30 days of the granting of letters testamentary, the administration of

the estate, or the filing of an application for release from administration or

summary release from administration.

{¶ 16} Pursuant to R.C. 2117.061(C), the person responsible for the estate

must mark the appropriate box on the appropriate probate form to indicate

compliance with R.C. 2117.061(B). The probate court then sends a copy of the

completed form to the administrator of the Medicaid estate-recovery program.

R.C. 2117.061(C).

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{¶ 17} The time in which the administrator may act in presenting a claim

against a beneficiary’s estate is governed by R.C. 2117.061(E), which provides

that the administrator shall present a claim for estate recovery to the person

responsible for the estate of the decedent or the person’s legal representative “not

later than ninety days after the date on which the medicaid estate recovery form is

received under division (B) of this section or one year after the decedent’s death,

whichever is later.” (Emphasis added.)

{¶ 18} The legislature’s use of the word “or,” a disjunctive term, signifies

the presence of alternatives. See O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-

Ohio-2574, 889 N.E.2d 505, ¶ 51-52; Pizza v. Sunset Fireworks Co., Inc. (1986),

25 Ohio St.3d 1, 4-5, 25 OBR 1, 494 N.E.2d 1115. The General Assembly

frequently uses “or” with “whichever is later” in legislation, including statutes of

limitations, to indicate alternative possibilities, pursuant to which a particular

claim becomes time-barred when the later of two or more designated events

occurs. See, e.g., R.C. 718.12(A) (requiring civil actions to recover municipal

income taxes to be brought “within three years after the tax was due or the return

was filed, whichever is later” [emphasis added]); R.C. 1347.10(A) (providing that

an action under the Uniform Commercial Code for wrongful disclosure of

personal information “shall be brought within two years after the cause of action

accrued or within six months after the wrongdoing is discovered, whichever is

later; provided that no action shall be brought later than six years after the cause

of action accrued” [emphasis added]). See also R.C. 955.07 (requiring that “a

record of all certificates of registration issued, together with the applications for

registration, shall be kept by the auditor in a dog and kennel register for two years

or until after an audit performed by the auditor of state, whichever is later”

[emphasis added]).

{¶ 19} In this case, the majority on the court of appeals concluded that the

language of R.C. 2117.061(E) intends to impose a maximum period of one year

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from the decedent’s death to file a claim. In re Estate of Centorbi, 186 Ohio

App.3d 263, 2010-Ohio-442, 927 N.E.2d 615, ¶ 18. It held that because Centorbi

died on February 12, 2007, and the state did not file its application to reopen the

estate until December 11, 2008, that application was properly dismissed because

it was barred by the statute of limitations. Id. at ¶ 13. Not so.

{¶ 20} The court of appeals’ conclusion ignores the word “or” as well as

the clause “whichever is later” in R.C. 2117.061(E). It was error to do so. Courts

do not have the authority to ignore words in a statute. Morgan v. Ohio Adult

Parole Auth. (1994), 68 Ohio St.3d 344, 347, 626 N.E.2d 939; Spencer Twp., 95

Ohio St. at 373, 116 N.E. 516.

{¶ 21} Both “or” and “whichever is later” have meaning, and that

meaning is clear: the statute contains an alternative set of limitations periods.

“[T]he plain meaning of the phrase ‘whichever is later’ refers to the later date of

two dates.” Morris v. Haren (C.A.11, 1995), 52 F.3d 947, 949. The dissenting

judge in the court of appeals in this case properly recognized that R.C.

2117.061(E) is written in the alternative, and a claim is timely as long as it is

presented within 90 days from the date a completed form is received or within

one year of the decedent’s death, whichever occurs later. We agree with the

dissenting judge, as well as the analysis in Morris. By its plain wording,

including the use of the word “or” and the phrase “whichever is later,” R.C.

2117.061(E) sets forth two alternative statutes of limitations.

{¶ 22} We now turn to the question of how the alternative statutes of

limitations in R.C. 2117.061(E) apply in the context of this case.

{¶ 23} As the probate and appellate courts recognized, the one-year

postmortem period had expired by the time the administrator filed the claim. Had

there been no alternative time limit, ODJFS would have been barred from

pursuing its claim.

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{¶ 24} But ODJFS was not barred, because the 90-day limitations period

had not yet run. Indeed, unless a Medicaid estate-recovery reporting form is filed,

the 90-day limitations period in R.C. 2117.061(E) never commences. See

generally Hafiz v. Levin, 120 Ohio St.3d 447, 2008-Ohio-6788, 900 N.E.2d 181, ¶

12 (“absent the filing of an amended [tax] return, the statute of limitations in R.C.

5747.13(A) never commences to run. Gibson v. Levin, 119 Ohio St.3d 517, 2008-

Ohio-4828, 895 N.E.2d 548, ¶ 10. Thus, because [the taxpayers] did not file an

amended return as required by R.C. 5747.10, the assessment was not barred by

the statute of limitations”). Because Fiorille never filed a reporting form, the

probate court erred in finding that the 90-day limitations period had run, and the

appeals court erred in affirming that judgment.

{¶ 25} To hold otherwise – as the probate court did – ignores the plain

wording of R.C. 2117.061(E) and encourages the person responsible for the estate

not to comply with the law in order to obtain a windfall to the estate at the

expense of the Medicaid program. That result is contrary to federal and state

policy, as expressed in our laws.

{¶ 26} The federal government mandates that states must recover certain

Medicaid benefits paid to certain Medicaid recipients from the recipients’ estates.

See Section 1396p(1)(B), Title 42, U.S.Code. R.C. 2117.061 embodies the

General Assembly’s response to that federal mandate. Ohio’s laws on recovery of

estate assets for Medicaid reimbursement are among the most aggressive in the

country. William J. Browning & Richard F. Meyer, H.B. 66 and Medicaid

Recovery (2005), 16 Ohio Prob.L.J. 42. Any rumination on the wisdom of these

statutes is for the legislature, not this court.

{¶ 27} Accordingly, we vacate the appellate court’s judgment and remand

this cause to the probate court for further proceedings consistent with this opinion.

In so doing, we reject two collateral claims raised by Fiorille with respect to the

90-day statute of limitations set forth in R.C. 2117.061(E).

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Collateral Claims

{¶ 28} First, Fiorille contends that the state has not created the Medicaid

estate-recovery reporting form described in R.C. 2117.061(B) through (E),

making it impossible for Fiorille to comply with her duties under the law. The

estate’s effort to obscure the discrete issue before us in this appeal is not well

taken.

{¶ 29} It is clear that the probate courts and ODJFS rely on Probate Form

7.0 as the Medicaid estate-recovery reporting form described in the statute.

Probate Form 7.0 appears in at least one Ohio practice guide, labeled “notice of

administrator of estate recovery program,” with R.C. 2117.061 listed as the

form’s “primary authority.” 3 Baldwin’s Ohio Practice, Merrick Rippner Probate

Law (2009), Appendix B. Moreover, commentators recognize Probate Form 7.0

as the mechanism for ensuring that notice is given to ODJFS. As one stated

recently, “Perhaps the most important section for probate counsel in these matters

involves when and who must actually notify the agency of a recipient's death. It

is clear from R.C. § 2117.061 that the Executor must notify the State of Ohio if a

decedent over the age of fifty-five (55) received Medicaid benefits. A new notice

form has not yet been implemented. The agency is still content with Standard

Probate Form 7.0.” Browning & Meyer, 16 Ohio Probate L.J. at 44.

{¶ 30} We have reviewed Probate Form 7.0, a single-page document

written in accessible language that is understandable to attorneys as well as

laypeople. It simply states, “The undersigned gives notice to the Administrator of

the Estate Recovery Program that the decedent was fifty-five (55) years of age or

older at the time of death and has been determined to have been a recipient of

medical assistance under Chapter 5111 of the Revised Code.”

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{¶ 31} The sufficiency of Probate Form 7.0 and its compliance, or lack

thereof, with the requirements of R.C. 2117.061(D) is not the question before us.1

Although Form 7.0 may not meet all of the requirements set forth in R.C.

2117.061(D) because it does not require the listing of decedents’ assets and does

not contain a warning that falsification could result in criminal penalties, it clearly

is sufficient to serve as the messenger for giving notice to the Medicaid estate-

recovery program administrator that a Medicaid beneficiary has died and has an

estate.

{¶ 32} Fiorille also attacks the 90-day limit as a potentially open-ended

period that will never close as long as notice is deferred, thereby subverting the

interests of finality in the administration of estates. There is not a modicum of

merit in that contention.

{¶ 33} When notice is received by the Medicaid estate-recovery program

administrator, the 90-day statute of limitations is triggered. The person

responsible for the estate controls the timely adjudication of any Medicaid

recovery claim by filing notice. Upon doing so, it is the person responsible for

the estate who ensures that any claim must be brought by the later of two dates:

90 days after notice or one year after the decedent’s death. Thus, the statute does

not encourage the estate-recovery administrator to ambush the estate years after

1. R.C. 2117.061(D) sets forth that the Medicaid estate recovery form “shall require, at a

minimum, that the person responsible for the estate list all of the decedent’s real and

personal property and other assets that are part of the decedent’s estate as defined in

section 5111.11 of the Revised Code. In the case of a decedent who was the spouse of a

decedent subject to the medicaid estate recovery program, the form shall require, at a

minimum, that the person responsible for the estate list all of the decedent’s real and

personal property and other assets that are part of the decedent’s estate as defined in

section 5111.11 of the Revised Code and were also part of the estate, as so defined, of the

decedent subject to the medicaid estate recovery program. The administrator shall include

on the form a statement printed in bold letters informing the person responsible for the

estate that knowingly making a false statement on the form is falsification under section

2921.13 of the Revised Code, a misdemeanor of the first degree.”

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the decedent’s death, nor does it otherwise undermine the societal interest in

efficient administration of estates. To the contrary, it fosters efficiency by

encouraging the person responsible for the estate to act with reasonable

promptness.

{¶ 34} Finally, and most importantly, “[t]he period within which a claim

must be brought * * * is a policy decision best left to the General Assembly.”

Leininger, 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶ 32. Our

decision reflects the legislative determination that ODJFS may seek recovery

from an estate not later than 90 days after the date on which the estate-recovery

reporting form is received, or one year after the decedent’s death, whichever is

later.

Conclusion

{¶ 35} R.C. 2117.061(E) sets forth alternative statutes of limitations that

allow ODJFS to file a claim against an estate within 90 days of receiving notice

from the person responsible for the estate of a deceased Medicaid patient or

within one year of the decedent’s death, whichever is later. The 90-day statute of

limitations set forth in R.C. 2117.061 does not begin to run until the Medicaid

estate-recovery program administrator is notified that an estate has been filed and

that the decedent was a Medicaid beneficiary who was 55 years of age or older.

Because the probate court and court of appeals erred in holding that the claim in

this case was time-barred, we reverse the judgment of the court of appeals and

remand this cause to the probate court for further proceedings consistent with this

opinion.

Judgment reversed

and cause remanded.

PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and

MCGEE BROWN, JJ., concur.

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Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor

General, Elisabeth A. Long, Deputy Solicitor, and Robert J. Byrne, Assistant

Attorney General, for appellant, Ohio Department of Job and Family Services.

Kenneth S. Kabb Co., L.P.A., and Rachel A. Kabb-Effron; and James C.

Bates, for appellee, Diane Nancy Fiorille.

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