In re Estate of Reimers

in Re estate oF myRtle alice R eimeRs , deceased .
J udy wRehe , peRsonal R epResentative oF the estate
oF myRtle alice R eimeRs , deceased , appellee ,
v . nebRaska depaRtment oF health and
human seRvices , appellant .
746 N.W.2d 724
Filed March 25, 2008. 	No. A-07-261.
1. Decedents’ Estates: Appeal and Error. Appeals of matters arising under the
Nebraska probate Code are reviewed for error on the record.
2. Judgments: Appeal and Error. When reviewing an order for errors appearing on
the record, the inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Administrative Law: Medical Assistance: Liability: Debtors and Creditors.
Under the Medical Assistance Act, Neb. Rev. Stat. § 68-901 et seq. (Cum.
Supp. 2006 & Supp. 2007), commonly known as Medicaid, a recipient generally
becomes indebted to the Nebraska Department of Health and Human Services for
assistance payments.
4. Administrative Law: Medical Assistance: Liability: Debtors and Creditors:
Decedents’ Estates. While the debt arising under Neb. Rev. Stat. § 68-901 et seq.
(Cum. Supp. 2006 & Supp. 2007) accrues during the recipient’s lifetime, it is held
in abeyance for payment, pursuant to § 68-919(2), until the recipient’s death.
5. Appeal and Error. An issue not presented to or passed upon by the trial court is
not an appropriate issue for consideration on appeal.
6. Administrative Law: Records: Evidence. The statute providing for admission of
the Nebraska Department of Health and Human Services’ payment record, Neb.
Rev. Stat. § 68-919(4) (Supp. 2007), clearly dispenses with foundation for the
admission of the record, if properly certified.
7. ____: ____: ____. Neb. Rev. Stat. § 68-919 (Supp. 2007) does not create any
presumption that the amounts shown on the payment record of Nebraska’s
Department of Health and Human Services are reimbursable by the recipient’s
estate—such must still be proved, and if an exhibit does not do so, then additional
evidence is needed.
Appeal from the County Court for Hall County: david a. bush,
Judge. Affirmed in part, and in part reversed and remanded.
Jon Bruning, Attorney General, and David M. McManaman,
Special Assistant Attorney General, for appellant.
John R. Higgins, Jr., of Huston & Higgins, for appellee.
iRwin , sieveRs, and mooRe, Judges.
610 	16 NeBRASkA AppeLLATe RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

sieveRs, Judge.
This appeal is from probate proceedings in the county court
for Hall County involving the estate of Myrtle Alice Reimers
who died in Hall County on March 22, 2005. After Reimers
died, an informal probate proceeding was initiated. After the
estate was opened, the Nebraska Department of Health and
Human Services (DHHS) filed a claim for reimbursement of
Medicaid payments in the amount of $79,163.48 made on
behalf of Reimers during her lifetime. The county court held
a hearing after which a written decision was rendered deny-
ing DHHS’ claim in its entirety. DHHS has now perfected
its appeal to this court. Briefing is completed, and we have
ordered that this case be submitted for decision without oral
argument pursuant to our authority under Neb. Ct. R. of prac.
11B(1) (rev. 2005).
FACTUAL AND pROCeDURAL BACkGROUND
The bill of exceptions in this case is composed solely of
exhibit 2, which is a document produced by DHHS that is
122 pages in length. The exhibit begins with a “Certification
Statement” that certifies that “the attached and incorporated
Client Detail Report (07/17/1994 through 12/31/1998), Client
expense Report, (dated 01/01/1999 through 03/31/2005), and
Waiver Services report (dated 07/17/1994 through 03/31/2005),
represent a true and accurate reflection of Medicaid payments
made by [DHHS] Finance and Support on behalf of the client
(patient) identified.” Citing applicable Nebraska statutes, the
first page of exhibit 2 asserts that repayment for the amounts
sought shall be made directly to DHHS. The first page then has
the following list of items for which reimbursement is sought
that we reproduce verbatim:
Total of Client expense Report
(07/17/1994 to 12/31/1998): 	$ 7,941.17
Total of Client Detail Report
(01/01/1999 to 03/31/2005): 	$53,616.99
Total of Waiver Services
(07/17/1994 to 03/31/2005: 	$17,605.32
Total Nebraska Medicaid payment: 	$79,163.48
IN Re eSTATe OF ReIMeRS 	611
Cite as 16 Neb. App. 610

The first page of the exhibit then recites “[DHHS,] Finance
and Support[,] Dave Cygan - Authorized Representative” below
what appears to be the signature of Dave Cygan. Affixed to
the document, to the right of the description and signature, is
the gold official seal of DHHS. The county court’s decision
notes the personal representative’s objection to the admission
in evidence of exhibit 2 based on lack of foundation, but over-
rules the objection, citing Neb. Rev. Stat. § 68-919(4) (Supp.
2007)—which statute we shall later discuss. The court said
no further evidence was offered, and the matter was deemed
submitted. The county court’s decision on the merits of DHHS’
claim for reimbursement states as follows:
The [estate] argues that without testimony as to the
meaning of exhibit “2”, the Court cannot enter a deter-
mination regarding the amount of the claim of [DHHS].
[DHHS] argues that exhibit “2” is sufficient proof of its
claim. The matter is submitted.
The Court being duly advised in the premises finds
that the claim of [DHHS] should be and hereby is denied
in the absence of further testimony or other evidence
from [DHHS].
ASSIGNMeNT OF eRROR
DHHS’ sole assignment of error is simply that the county
court erred when it disallowed the claim for reimbursement
of medical assistance benefits provided to Reimers during
her lifetime.
STANDARD OF ReVIeW
[1,2] Appeals of matters arising under the Nebraska probate
Code are reviewed for error on the record. In re Estate of
Weingarten, 10 Neb. App. 82, 624 N.W.2d 653 (2001). See, In
re Guardianship of Zyla, 251 Neb. 163, 555 N.W.2d 768 (1996);
In re Conservatorship of Estate of Martin, 228 Neb. 103, 421
N.W.2d 463 (1988). When reviewing an order for errors appear-
ing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. Law Offices of Ronald
J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997).
612 	16 NeBRASkA AppeLLATe RepORTS

ANALYSIS
[3-5] There is no dispute that for a good number of years
prior to her death, Reimers received assistance from DHHS.
Under the Medical Assistance Act, Neb. Rev. Stat. § 68-901
et seq. (Cum. Supp. 2006 & Supp. 2007), commonly known
as Medicaid, a recipient generally becomes indebted to DHHS
for assistance payments. See § 68-919(1). While the debt aris-
ing under such statute accrues during the recipient’s lifetime,
it is held in abeyance for payment until the recipient’s death.
See § 68-919(2). The personal representative of the estate of
Reimers (estate) does not dispute the assertion that DHHS is
entitled to reimbursement under the circumstances set forth in
the statute. However, the estate refers us to § 68-919(2), which
provides that the debt is recoverable only when the recipient
is not survived by a “child who either is under twenty-one
years of age or is blind or totally and permanently disabled
as defined by the Supplemental Security Income criteria.”
The estate argues that DHHS failed to prove that there was
no surviving child as described in the statute, which is a pre-
condition to reimbursement. We note that in DHHS’ “petition
for Allowance of Claim,” it was alleged that Reimers did not
have such a surviving child. From the denial of the claim, we
see that the estate did not allege that this statutory provision
prevented reimbursement. Accordingly, to the extent that this
portion of § 68-919(2) creates a defense to DHHS’ claim for
reimbursement, the estate failed to put such in issue before
the trial court. It is well known that an issue not presented to
or passed upon by the trial court is not an appropriate issue
for consideration on appeal. See Haeffner v. State, 220 Neb.
560, 371 N.W.2d 658 (1985). This issue was not raised in the
estate’s pleading, and the limited bill of exceptions does not
reveal that it was raised before the county court. Accordingly,
we need address it no further.
We now turn to the matter of exhibit 2. The estate con-
cedes that “the payment record [exhibit 2] was properly admit-
ted.” Brief for appellee at 2. Nonetheless, it is important to
set forth the statute under which the exhibit was admitted,
although given the estate’s concession, the core question for
IN Re eSTATe OF ReIMeRS 	613
Cite as 16 Neb. App. 610

us ultimately becomes, What does exhibit 2 prove? Section
68-919(4) provides:
In any probate proceedings in which [DHHS] has filed a
claim under this section, no additional evidence of foun-
dation shall be required for the admission of [DHHS’]
payment record supporting its claim if the payment record
bears the seal of [DHHS], is certified as a true copy,
and bears the signature of an authorized representative
of [DHHS].
DHHS argues that exhibit 2 by itself proves its entitlement
to reimbursement because “the exhibit itemized the dates the
medical assistance was provided, the medical provider’s name,
the type of medical assistance provided whether it be the name
of the prescription or the medical service performed, and the
amount of the benefits which were allowed on . . . Reimers’
behalf.” Brief for appellant at 3.
Section 68-911, entitled “Medical assistance; mandated and
optional coverage,” lists 13 specified types of assistance which
“shall” be covered and 19 which “may” be covered under the
Medical Assistance Act. The estate argues that DHHS’ pay-
ment record, “in and of itself, is insufficient to satisfy [DHHS’]
burden with respect to the claim” and that “[w]ithout further
evidence, the exhibit does not establish that the individual
entries refer to medical assistance or for that matter, which
listed amounts, if any, were actually paid by [DHHS].” Brief
for appellee at 3. The estate also asserts that “[w]ithout addi-
tional evidence, the finder of fact is forced to guess as to the
meaning of [the] numbers and references.” Id. After our review
of exhibit 2, the only evidence adduced, we conclude that each
party is partially correct.
With respect to the contents of exhibit 2, DHHS breaks its
claim down into three categories, as follows:
Total of Client expense Report
(07/17/1994 to 12/31/1998): 	$ 7,941.17
Total of Client Detail Report
(01/01/1999 to 03/31/2005): 	$53,616.99
Total of Waiver Services
(07/17/1994 to 03/31/2005: 	$17,605.32
Total Nebraska Medicaid payment: 	$79,163.48
614 	16 NeBRASkA AppeLLATe RepORTS

These categories by themselves do not tell the full story.
However, to properly decide this matter, one simply has to
examine the contents of the 122 pages of exhibit 2—which
we have done. To the extent that DHHS believes that because
§ 68-919(4) allows it to dispense with foundation for its listing
of Medicaid payments, then its reimbursement claim is proved
simply by the admission in evidence of exhibit 2, we reject
that notion. All § 68-919(4) does is get exhibit 2 in evidence,
as the trial judge ruled, and the estate concedes in its brief
that the admission of exhibit 2 was proper. What then becomes
determinative is what is proved by the contents of the exhibit,
considered in the context of the Act.
The first 88 pages of exhibit 2 (after the certification page)
contain detailed listings of drugs, both prescribed and over the
counter, as well as a variety of medical services received by
Reimers for the period beginning July 17, 1994, and continu-
ing through November 10, 1998. The format of these pages is
uniform and for each “claim,” typically a prescription, medica-
tion, or a doctor visit, there is listed horizontally across the
page the following information for each claim: “Total Claim
Charges,” the “Third party Amount,” the “Amount Disallowed,”
the “Amount Reduced,” the “Reimburse Amount,” the “Net
Claim Charges,” and the “Allowed Amount.” It is, of course,
the “reimburse amount” category which is crucial under the
act, because it is these amounts for which DHHS seeks reim-
bursement. Having examined each claim detailed on the first 88
pages of exhibit 2, we find that all indisputably fall within the
categories delineated by § 68-911 for which the estate owes
DHHS reimbursement and that no further evidence by way of
explanation of such claims is needed. The estate introduced
no evidence to show that such claims were not reimbursable.
Therefore, the county court was clearly wrong and committed
error on the record in disallowing reimbursement of the claims
shown on the first 88 pages of exhibit 2. The total that DHHS
is entitled to from this portion of the exhibit is $7,941.17.
We now turn to the next 28 pages of exhibit 2, encom-
passing drugs and medical services from January 1, 1999, to
March 22, 2005, the date of Reimers’ death. It is apparent that
DHHS changed the format of its recordkeeping beginning with
IN Re eSTATe OF ReIMeRS 	615
Cite as 16 Neb. App. 610

January 1, 1999. The format is that those pages are each entitled
“Client Medicaid expense Report,” each has the name “Myrtle
Reimers” at the top, and each then lists horizontally across each
page the “Claim ID,” the date, the “provider ID and Name,”
the “procedure Code/product Name,” the “Diagnosis Code,”
and the “Net pay.” The “net pay” column on these 28 pages
totals $53,616.99. We do not set forth the details listed for each
“Claim ID,” of which there are 1,114 by our count, but again
we have reviewed each page and the claim detailed thereupon.
For example, the claims and payments range from a payment
of $35.91 for “Adult Size Brief” with a “Diagnosis Code”
of “Urinary Incontinence NOS” for Claim ID 711544721, to
a variety of medical services and drugs for such things as a
dislocated hip, hip joint replacement, and cataracts. Again
there is no evidence to dispute that all of the claims set forth
on those 28 pages of exhibit 2 are not properly reimbursable
under the act, and facially, the exhibit shows that such are
reimbursable. Therefore, the county court was clearly wrong
and committed error on the record in finding that the evidence
was insufficient to order reimbursement in the amount sought,
specifically $53,616.99.
[6,7] The third category for which DHHS seeks reimburse-
ment, in the amount of $17,605.32, is entitled “Total of Waiver
Services,” and such comprises the last six pages of exhibit
2. There are five types of subtotaled expenses. The first is
“Chore”—with no further definition—and the amount sought is
$13,262.82. The next is simply designated as “emergency Refs,”
and the amount sought is $425. The third is simply “escort” for
$1,750.25. The fourth is “escort Medic” for $350.25. The fifth
is described only as “Respite in Hm” for $1,778. Inferentially,
the five types listed on exhibit 2 and quoted above could possi-
bly fall under one or more of the mandatory or optional medical
services categories for which DHHS will pay under Medicaid,
however to get to that conclusion, we would have to speculate
or guess at the meaning of these cryptic terms. Moreover, the
proof problems for such claims go deeper. Those six pages list
only two columns of data: “Claim ID,” followed by an amount.
In sharp contrast to the other pages of exhibit 2 which we have
discussed above, there are no names of providers, dates of
616 	16 NeBRASkA AppeLLATe RepORTS

service, or information whether Reimers was institutionalized
at the time of service (facts which can determine whether a
payment is reimbursable under the act), reasons for service, or
associated diagnoses. Accordingly, as opposed to the claims for
reimbursement upon which we have reversed the county court’s
decision, all of the claims on the last six pages of exhibit 2
need, as the county court found, further evidence to establish
that the amounts listed are in fact reimbursable by the estate
under § 68-919. In summary, the statute providing for admis-
sion of DHHS’ payment record, § 68-919(4), clearly dispenses
with foundation for the admission of the record if properly
certified, as exhibit 2 was. However, the statute does not create
any presumption that the amounts shown on the payment record
are reimbursable by the recipient’s estate—such must still be
proved, and if the exhibit does not do so, then additional evi-
dence is needed. Given that DHHS did not supplement exhibit
2 by other testimony or evidence, we cannot determine from the
face of the payment record that the items set forth on the last
six pages of exhibit 2 (in the category of “Waiver Services”)
are reimbursable under § 68-919. In short, with respect to those
claims, DHHS did not carry its burden of proof.
CONCLUSION
For the reasons set forth above, we reverse the decision of
the county court for Hall County and find that the estate is
obligated to reimburse DHHS in the amount of $61,558.16. We
affirm that portion of the decision of the Hall County Court
which found that the estate was not obligated to reimburse
DHHS in the amount of $17,605.32 for that portion of its claim
entitled “Waiver Services.” We remand the cause to the county
court for Hall County for entry of judgment in accordance with
our opinion.
aFFiRmed in paRt , and in paRt
ReveRsed and Remanded .
IN Re eSTATe OF ReIMeRS 	617
Cite as 16 Neb. App. 610