                                                                          1 ,
                                                                 COURT OF !LED
                                                                  STATE OFAPPEALS DIV
                                                                           WASHINGTON
                                                                 2018 AUG 13
                                                                               All 8:28




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

In the Matter of the Guardianship of         )
                                             )         No. 76856-5-1
MARGUERITE ROGERS,                           )
An Incapacitated Person,                     )         DIVISION ONE
                                             )
SHERRY WAMBA, Guardian of the                )
Person and the Estate,                       )         UNPUBLISHED OPINION
                                             )
                    Respondent,              )
             v.                              )
                                             )
STATE OF WASHINGTON,                         )
DEPARTMENT OF SOCIAL AND                     )
HEALTH SERVICES,                             )
                                             )
                    Appellant.               )         FILED: August 13, 2018
                                             )

      ANDRUS, J. — The Department of Social and                  Health Services

(Department) appeals a superior court order relating to guardianship fees and

costs for a Medicaid recipient, Marguerite Rogers. We affirm in part, reverse in

part, and remand for a recalculation of guardianship fees.

                                       FACTS

      Marguerite Rogers is an incapacitated adult enrolled in a Medicaid-funded

program called Community Options Program Entry System (COPES), which

offers an alternative to institutional nursing facility care for eligible persons.'

      1 42 U.S.C.§ 1396n(c)(1); WAC 182-515-1506; WAC 388-106-0310.
No. 76856-5-1/2
                                          ,

Rogers lives in an adult family home, known as an "alternative living facility"

(ALF), in Everett. She receives $1,389 per month in Social Security benefits as

her sole income source.      Her average monthly cost to live at the ALF is

$3,408.14. As a COPES recipient, Rogers's agreement to receive care in that

facility requires that she pay her room and board, which the Department sets at

$672.21 per month.2 Rogers receives a $62.79 per month "personal needs

allowance" (PNA), and the Department deducts another $38 for health

insurance.3 The amount remaining after deducting room and board, PNA, and

insurance, is called "participation," which the Department applies toward the cost

of Rogers's care. Medicaid pays the remainder.

       RCW 11.92.180 provides "[a] guardian or limited guardian shall be allowed

such compensation for his or her services. . . as the court shall deem just and

reasonable."     However, the statute also states that no guardian may be

compensated at state expense.5 Moreover, when the incapacitated person is

receiving benefits from the Department and is required to contribute a portion of

       2 See WAC 182-515-1509(3)(b), (7). All persons receiving long-term care
services, as defined in RCW 74.39A.009(19), must contribute a portion of their
income to their cost of care, their room and board, or both. See, e.g., WAG 182-
513-1380; WAG 182-513-1507; WAG 182-513-1509.
       3 See   WAG 182-515-1509(3)(a).
      4   WAG 182-513-1100; WAG 182-515-1509(1)(a); WAG 182-513-1510,
repealed by Wash. St. Reg. 18-04-056 (Feb. 1, 2018). This is known as
participation because it is the amount Rogers pays to participate in her care.
"Post-eligibility treatment of income, participation, and participate are all terms
that refer to a client's responsibility towards cost of care." WAG 182-515-
1509(1)(a); see also 42 C.F.R. § 435.726 (referring to participation as
lajpplication of patient income to the cost of care"). "Participation is not room
and board." WAG 182-513-1100; see also WAG 182-515-1509(1)(b).
       5   RCW 11.92.180.


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No. 76856-5-1/3

her income toward the cost of residential services, the Department is entitled to

notice when the guardian seeks an award of fees and costs.6 The statutes also

require that the Department establish rules limiting allowances for guardianship

fees and administrative expenses.7

       Before June 1, 2018, Department rules capped the amount a Medicaid

recipient's guardian could charge at $175 per month and capped the amount the

guardian could recover for administrative costs, including legal fees, at $600

during any three-year period.8          Under these rules, guardianship fees and

administrative costs could be deducted from a Medicaid recipient's income only

after the Department had deducted room and board and PNA.6 In other words,

guardianship fees and administrative costs can be paid only from a Medicaid

recipient's available participation."

       Sherry Wamba was appointed as Rogers's limited guardian on February

22, 2016. When the superior court appointed her as guardian, it directed an

advance payment of $175 per month, consistent with Department rules. After the




       6Id.; see also WAC 182-513-1525(4)(a), amended by WAC 388-79A-015.
      7 RCW 11.92.180; RCW 43.20B.460.

      8 WAC 182-515-1515(1), (3), amended by WAC 388-79A-010. Effective
June 1, 2018, the Department promulgated amended regulations affecting
guardianship fees and costs. See Wash. St. Reg. 18-04-056 (Feb. 1, 2018);
Wash. St. Reg. 18-11-039 (May 8, 2018). The Department concedes the
amendments apply prospectively only.
       9 WAC   182-515-1509(3)-(4).
       19 WAC   182-515-1509(4)(b).


                                            3
No. 76856-5-1/4

entry of this order, the Department granted Wamba an exception to the monthly

cap and approved payment of $325 per month in guardianship fees.11

      In March 2017, Wamba filed a petition asking the superior court to

approve an interim report and to approve her request for guardianship fees and

administrative costs for the preceding 12 month period. The guardian sought

court approval of a total of $13,923 in fees, $3,900 of which she had already

received through the monthly advances.        Wamba also requested an order

increasing her monthly advance to $500.         Finally, she sought an award of

$1,702.50 in attorney fees and costs.

      Wamba provided the Department with notice of the petition as required by

statute, and the Department objected to the amount requested and to Wamba's

proposed method for payment. The Department argued that Wamba's fee

request exceeded both the regulatory caps and the amount of monthly

participation available to cover guardianship fees. It contended that requiring the

Department to use more than $616 of Rogers's monthly income for guardianship

fees would unlawfully force it to waive Rogers's room and board obligation. The

Department conceded that there had been "extensive medical setup needs

involved in moving" Rogers to the ALF, and it agreed to allow "additional fees of

$1,500 from [Rogers's] participation." The Department, however, asked the court

to limit the monthly advance to $225, despite having previously agreed to $325



      11 Wamba reported to the court that the Department had agreed to grant
her an exception to the $175 regulatory cap and had approved a monthly
payment of $325, an assertion with which the Department agreed.


                                        4
No. 76856-5-1/5

per month. It also requested the attorney fees be limited to $700, the amount it

had already agreed were reasonable.

         A superior court commissioner approved Wamba's requested fees and

costs, concluding they were "necessary for the benefit of the guardianship and

just and reasonable and should be allowed." The commissioner ordered the fees

and costs "to be paid from Marguerite Rogers's income." The commissioner

authorized the $500 advance of guardianship fees, effective March 2017, and

ordered it to be paid from "Rogers's current income before calculation of the

amount of the client's contribution toward the cost of long term care by [the

Department]."     In addition, the commissioner held that the monthly income

allocated to pay guardianship fees and costs was "not available income and

resources as defined by [Department] rules for purposes of determination of

eligibility for benefits, or as available for contribution toward the cost of long term

care."

         The Department sought to revise the commissioner's ruling, arguing in

part that the ruling unlawfully forced the Department to grant Rogers an

"exception to rule," or ETR, under WAC 182-503-0090.12 In its order denying the

motion for revision, the superior court stayed payment of any guardianship fees

and costs from "income other than participation for thirty (30) days following the

date of entry of this order provided that [the Department] may, in its sole

         12WAG 182-503-0090 gives the Department the discretion to grant an
exception to any rule in Title 182 WAG when doing so would, among other
things, be in the interest of the individual's welfare. Through this mechanism, the
Department can reduce or waive a client's room and board obligation when there
is insufficient participation for guardianship fees and costs.


                                          5
No. 76856-5-1/6

discretion, approve an exception to rule to allow for an additional payment of fees

above and beyond what can be paid from available participation."

      The Department filed this appeal from the superior court's order.

                                    ANALYSIS

      The Department raises three arguments: (1) the superior court erred in

requiring the Department to deduct the guardianship fees and costs from

Rogers's income before determining her eligibility for Medicaid benefits; (2)the

superior court lacked the legal authority to order the Department to pay monthly

guardianship fees in excess of the amount of Rogers's available participation;

and (3) the superior court applied an incorrect standard to determine the

reasonableness of the fees Wamba had incurred and monthly advance she

sought going forward. We agree with regard to the first and second arguments

but disagree as to the third.

A. Standard of Review

       When a superior court applies guardianship law to a particular case and

orders a fee allowance, we review the superior court's order for an abuse of

discretion.13 Under an abuse of discretion standard of review, a lower court's

decision is upheld unless it is manifestly unreasonable or based on untenable

grounds.14 A court abuses its discretion when it bases its ruling on an erroneous



       13 In re Guardianship of Lamb, 173 Wn.2d 173, 184, 265 P.3d 876 (2011).
When a party appeals an order denying revision of a commissioner's decision,
we review the superior court judge's ruling, not the order of the commissioner. In
re Estate of Wright, 147 Wn. App. 674, 680, 196 P.3d 1075 (2008).
       14   Dix v. ICT Group, Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).


                                         6
No. 76856-5-1/7

view of the law or applies an incorrect legal analysis.15 We review issues of

statutory interpretation de novo.16       We apply the same rules of statutory

construction to administrative rules and regulations.17

B. Requiring the payment of guardianship fees and costs from Rogers's income
   before the Department determines her eligibility for Medicaid

      The Department contends the superior court erred in holding that the

portion of Rogers's income awarded to pay guardianship fees cannot be

considered by the Department when determining Rogers's eligibility for Medicaid

benefits. We agree.

       The Department and the Health Care Authority(HCA) administer Medicaid

in Washington.15 There is an extensive regulatory scheme for the Department

and HCA to determine whether individuals are eligible for these public benefits.19

When determining a person's eligibility for Medicaid benefits,29 the Department

must consider all income the person receives unless specifically excluded under

WAC 182-512-0800.21 Guardianship fees and costs may be excluded from the

income analysis only "when Iguardian] services are a requirement for the person




       15   Id.
       16   In re Lamb, 173 Wn.2d at 184.
       17   City of Seattle v. Allison, 148 Wn.2d 75, 81, 59 P.3d 85 (2002).
       18   RCW 74.04.050.
       19 See     generally Title 182 WAC.
       20 See, e.g.,   RCW 74.09.510.
        See, e.g., 42 C.F.R. § 435.726(c); WAC 182-512-0600; WAC 182-512-
       21
0650; WAC 182-512-0700.


                                             7
No. 76856-5-1/8

to receive payment of the income."22        There was no evidence that any of

Wamba's fees were incurred as a requirement for Rogers to receive Social

Security income.

       Wamba does not cite any legal support for the proposition that the

superior court can dictate to the Department or the HCA what income they can

and cannot include in their calculation of Rogers's eligibility for Medicaid benefits.

We therefore conclude the superior court erred in ordering the guardianship fees

and costs be excluded from Rogers's income when the Department determines

her eligibility for Medicaid benefits.

C. Awarding guardianship fees and costs in excess of Rogers's monthly
   participation

       The Department contends that the superior court can, under limited

circumstances, award guardianship fees and costs in excess of the regulatory

caps but cannot order the Department to pay fees and costs in excess of

Rogers's monthly participation. We agree.

       The regulation provides:

                 Should fees and costs in excess of the amounts allowed
            in WAC 388-79-030 be requested:

                   (c) [if] the court determine[s] after consideration of the
            facts and law that fees and costs in excess of the amounts
            allowed in WAC 388-79-030 are just and reasonable and should
            be allowed, then the department will adjust the client's current
            participation to reflect the amounts allowed upon receipt by the
            department of the court order setting the monthly amounts.23


       22 WAC    182-512-0800(5)(emphasis added).
       23WAC 182-513-1525(4)(c), amended by WAC 388-79A-015. The
monetary limits are now codified in WAC 388-79A-005 and -010. The parties

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No. 76856-5-1/9


The Department concedes that under this rule, the superior court had the

discretion to order payment of more than $175 per month in guardianship fees. It

argues, however, that because the regulation specifies that such fees must come

out of a recipient's participation, the court's authority is limited by the amount of

that recipient's monthly participation. If correct, guardianship fees and costs,

including the administrative costs (i.e., legal fees) cannot exceed $616 per

month, Rogers's total participation.24

       Wamba argues that there is no such restriction set out in any statute or

rule and nothing restricts the superior court's authority to award whatever amount

it deems just and reasonable under RCW 11.92.180. During oral argument,

Wamba conceded that she may not collect more than is available in monthly

participation, but argues she is nevertheless entitled to an award that allows her

to collect against any future available participation. We do not find this argument

persuasive.

       First, RCW 11.92.180 explicitly restricts superior courts' authority in

Medicaid cases. The statute provides "[t]he amount of guardianship fees and

additional compensation for administrative costs shall not exceed the amount




agree that at the time of Wamba's petition, the maximum fees and costs were set
out in WAC 182-513-1515, amended by WAC 388-79A-010.
       24 By extension, assuming Rogers's income does not change, she would
have a total of $7,392 in available participation over a 12 month period.


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No. 76856-5-1/10

allowed by the [D]epartment       . by rule."25   We cannot ignore this statutory

directive from our legislature.

       Second, we interpret WAC 182-513-1525(4)(c), in effect at the time of

Wamba's petition, to set a recipient's monthly participation income as a ceiling for

guardianship fees and costs. The rule's requirement that the Department adjust

the client's participation to reflect a court award would otherwise have no

meaning.

       Finally, if an award exceeds a client's participation, the guardian would

arguably have a right to collect her fees from income needed for the ward's room

and board. But such an outcome would violate the explicit statutory prohibition

that "[g]uardians and limited guardians shall not be compensated at county or

state expense."26

       For these reasons, we conclude the superior court erred in awarding

Wamba guardianship fees and administrative costs in an amount exceeding

Rogers's monthly participation in the relevant accounting period in the absence

of a Department approved ETR.27

D. Legal standard for assessing the reasonableness of Wamba's fee request

       The Department argues the superior court did not apply the correct test in

assessing the reasonableness of Wamba's fees.           Before June 1, 2018, the

       25   RCW 11.92.180; see also RCW 43.206.460.
       26   RCW 11.92.180.
       27See supra n.12. The Department recently promulgated a new rule for
orders entered on or after June 1, 2018, which allows a court order to adjust
room and board obligations. WAC 182-513-1530(3)(c), (4)(a); see also Wash.
St. Reg. 18-04-056(Feb. 1, 2018).


                                       -10-
No. 76856-5-1/11

Department had the discretion to approve a guardian's fee request above the

regulatory cap if it found the services "extraordinary."28 On the other hand, if the

services were "usual and customary," the rule provided that the maximum fees

and costs set out in WAC 182-513-1515 "must be deemed adequate."29 The

Department argues that superior courts must apply the same "usual and

customary" and "extraordinary" test as it is required to apply when considering a

guardian's fee request.    If all of Wamba's activities fit within the regulatory

definition of "usual and customary," the Department contends the superior court

has no legal authority to award more than the $175 per month cap. We disagree.

       First, the rule defining "usual and customary" and "extraordinary" services

applies only to the Department. The regulation provides that "[i]n considering a

request for extraordinary fees and costs, the department must consider the

following factors."3° It does not say that courts must consider the same set of

factors. Where a regulation is clear and unambiguous, words in a regulation are

given their plain and ordinary meaning unless a contrary intent appears.31 WAC

182-513-1525(4)(b) is unambiguous and does not apply to superior courts.




       28  WAC 182-513-1525(4)(b)(iii), amended by WAC 388-79A-015. The
amended and newly promulgated regulations eliminate discretion to exceed
regulatory amounts. See Chapter 388-79A WAC (for orders entered before June
1, 2018); WAC 182-513-1530 (for orders entered on or after June 1, 2018).
       29 WAC       182-513-1525(4)(b)(ii), amended by WAC 388-79A-015
(emphasis added).
       39 WAC 182-513-1525(4)(b), amended by WAC 388-79A-015 (emphasis
added).
       31 In re Estate of Little, 106 Wn.2d 269, 283, 721 P.2d 950 (1986).
No. 76856-5-1/12

       Second, WAG 182-513-1525(4)(c)—the rule that is explicitly applicable to

superior courts—merely states that the court must consider "the facts and law" to

determine whether a fee request is "just and reasonable." The language of this

provision is identical to the language of RCW 11.92.180, and not similar at all to

the language of WAG 182-513-1525(4)(b).            Again, this provision is not

ambiguous.     The court is required to award only fees found "just and

reasonable." Under Lamb, courts may approve fees only for work that benefits

the guardianship and is performed in the individualized best interests of the ward,

in an amount deemed proper in view of the value of the services performed, if

there is evidence in the record to justify the compensation.32 That is the "law" to

be applied under WAG 182-513-1525(4)(c).

      The superior court applied the correct legal standard here. The superior

court reviewed Wamba's report, accounting, and proposed budget, and found

that a reasonable amount of time was spent, and the acts performed were "just

and reasonable for the administration of the guardianship estate and the care

and support" of Rogers. In addition, it found that Wamba's hourly fee was

"reasonable and within the standard for other professional guardians that charge

for fiduciary services in the King and Snohomish County area." We find no error

in this methodology. But because the total amount of fees and costs awarded

cannot exceed Rogers's participation for the time period at issue, a remand is

nonetheless necessary.



       32 173 Wn.2d   at 191-93.


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No. 76856-5-1/13

      For these reasons, we reverse the superior court's order and remand for a

recalculation of guardianship fees and administrative costs consistent with this

opinion.33




WE CONCUR:




       33Because Wamba did not prevail on appeal, we decline to grant the
requested attorney's fees and costs. See id. at 198.


                                     - 13-
