                                           No. 04-014

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 133N



MICHAEL H. DITTON,

              Petitioner and Appellant,

         v.

STATE OF MONTANA, DEPARTMENT OF
PUBLIC HEALTH AND HUMAN SERVICES,

              Respondent and Respondent.




APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and For the County of Gallatin, Cause No. DV 03-251,
                     Honorable Mark Guenther, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Michael H. Ditton, Pro Se, Bozeman, Montana

              For Respondent:

                     Barbara B. Hoffman, Special Assistant Attorney General, Department
                     of Public Health and Human Services, Helena, Montana



                                                   Submitted on Briefs: April 13, 2004

                                                              Decided: May 25, 2004

Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Pursuant to Section 1, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as

a public document with the clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number, and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Michael H. Ditton has type 1, insulin dependent diabetes. He filed a petition to

receive state Medicaid benefits in January of 2002 with the Montana Department of Health

and Human Services (DPHHS). Ditton had not yet applied for disability benefits with the

Social Security Administration (SSA), so no determination of disability had been performed.

DPHHS referred Ditton’s case to Medicaid Eligibility Determination Service (MEDS) for

a determination of disability. MEDS found that Ditton was not disabled. Ditton filed a

challenge, and a hearing date was set. Before the hearing, MEDS determined that Ditton was

disabled and awarded him benefits retroactive to October 2001. Meanwhile, Ditton had filed

for disability with the SSA, which denied his application. In August, Ditton appealed the

SSA decision denying him benefits. DPHHS, in the meantime, discovered that SSA had

denied Ditton benefits. DPHHS revoked Ditton’s benefits claiming that, as a matter of law,

it is bound by the determinations of SSA.

¶3     Ditton requested a contested case hearing pursuant to § 2-4-601, MCA. The hearing

officer granted summary judgment in favor of DPHHS. Ditton appealed to the Board of



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Public Assistance and then to District Court, both of which affirmed the hearing officer’s

ruling. Ditton now appeals. We affirm.

¶4     As a preliminary issue, Ditton claims that DPHHS, under the doctrine of judicial

estoppel, is bound by its previous statements on the record that he was entitled to benefits.

However, the doctrine of judicial estoppel does not apply, because DPHHS has not changed

its position. Rather, DPHHS admits that Ditton was previously determined to be eligible for

benefits, but asserts that when Ditton also applied for SSA benefits, DPHHS became legally

bound by the determination of SSA. Because SSA’s decision had not yet been made at the

time of DPHHS’s earlier decision, it was not then a consideration. It was Ditton’s

subsequent application for SSA benefits that made it a factor.

¶5     The federal Medicaid regulations govern how determinations of disability are made

when an individual applies for Medicaid on the basis of disability. 42 CFR 435.541.

Accordingly, a Medicaid agency, such as DPHHS, is bound by SSA’s determination of

disability if the agency has a Section 1634 agreement, which is an agreement made pursuant

to 42 U.S.C. 1383c. Under a Section 1634 agreement, the state Medicaid agency agrees to

accept federal determinations of SSI eligibility as determinative of Medicaid eligibility.

¶6      DPHHS asserts that it has entered into a Section 1634 agreement with SSA. The

existence of the Section 1634 agreement is supported by the affidavit of Michelle Thibodeau,

the Bureau Chief of Disability Determination Services. Ditton responds that the affidavit,

because it is written in the third person, is really the testimony of the notary public. As such,

Ditton claims that Thibodeau’s affidavit is inadmissable hearsay, without which, DPHHS


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fails to prove the existence of the Section 1634 agreement. Also, according to Ditton,

because the inadmissable Thibodeau affidavit is the only document in the record which states

that he was denied SSA disability benefits, the record fails to support the conclusion that he

was denied SSA disability.

¶7     However, the gravamen of this case is whether the hearing officer appropriately

granted summary judgment to DPHHS. The appropriate question is whether or not a genuine

issue of fact existed. Ditton failed to controvert the Thibodeau affidavit, which established

that DPHHS had a Section 1634 agreement by which it was bound by SSA’s determination

of disability. He thus failed to establish that there were any genuine issues of material fact

in dispute.

¶8     Ditton also claims that DPHHS violated the law by refusing to give him a hearing

before revoking his benefits. According to Ditton, even though DPHHS may be bound by

the determination of SSA, DPHHS is still required to give him a hearing before revoking his

benefits. DPHHS procedures provide for a hearing when there are disputed facts. However,

when, as here, there are no genuine issues of material fact, such a case is appropriately

decided on summary judgment.

¶9     Lastly, Ditton claims that the District Court should have allowed him to proceed with

discovery. However, Ditton’s discovery requests centered on his assertions that DPHHS

stole from him and forged documents, and that DPHHS was biased against him. Since

Ditton’s requests were not calculated to lead to the discovery of relevant material, the

District Court did not err in refusing to order discovery.


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¶10   Affirmed.



                             /S/ W. WILLIAM LEAPHART



We concur:



/S/ JAMES C. NELSON

/S/ JOHN WARNER

/S/ PATRICIA O. COTTER

/S/ JIM RICE




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