§346-29.5  Real property liens.  (a) 
The department of human services may require of any person applying for or
currently receiving assistance under the department's programs, including but
not limited to social service payments, financial assistance, medical
assistance, and food stamps, who owns or has any interest in real property,
that the person shall enter into an agreement with the department that future
grants of assistance shall be and constitute a lien against the interest in
real property, and shall remain a lien until satisfied and discharged, with the
exception of home property lived on by the assistance household.



(b)  The department may also place a lien
against the real property of any recipient receiving medical assistance who is
an inpatient in a nursing facility, intermediate care facility for the mentally
retarded, or other medical institution, after a state determination, pursuant
to notice and hearing requirements of chapter 91, that the recipient cannot
reasonably be expected to be discharged from the medical institution and
returned home.  There is a rebuttable presumption that the recipient cannot
reasonably be expected to be discharged from the facility and return home if
the recipient or a representative of the recipient declares that there is no
intent to return home or if the recipient has been institutionalized for six
months or longer without a discharge plan.



(1)  The department may not place a lien on the
recipient's home if the recipient's:



(A)  Spouse;



(B)  Minor, blind, or disabled child; or



(C)  Sibling who has an equity interest in the
home and who was residing in the home for a period of at least one year
immediately before the date of the recipient's admission to the medical
institution;



is lawfully residing in the home.



(2)  The department shall not recover funds from the
lien on the recipient's home when:



(A)  A sibling who was residing in the home for
a period of at least one year immediately before the date of the recipient's
admission to the medical institution; or



(B)  A son or daughter who was residing in the
recipient's home for a period of at least two years immediately before the date
of the recipient's admission to the medical institution, and who establishes to
the satisfaction of the State that he or she provided care to the recipient
which permitted such recipient to reside at home rather than in an institution;



lawfully resides in the home and has
lawfully resided in the home on a continuous basis since the date of the
recipient's admission to the medical institution.



(3)  The department also shall not recover funds from
the lien if the recipient has a surviving spouse; or surviving minor, blind, or
disabled child.



(4)  Any lien imposed with respect to this subsection
shall be dissolved upon the individual's discharge from the medical institution
and return home.



(c)  The agreement in subsection (a) or the
lien in subsection (b) shall be recorded in the bureau of conveyances, or filed
in the office of the assistant registrar of the land court.  When the agreement
or lien is recorded in the bureau of conveyances, the registrar shall forthwith
cause the same to be indexed in the general indexes of the bureau of
conveyances.  From and after the recording in the bureau of conveyances the
liens shall attach to all interests in real property then owned by the person
and not registered in the land court, and from and after the filing thereof in
the office of the assistant registrar of the land court, the liens shall attach
to any such interest in land then registered therein.  The liens shall be for
all amounts of assistance, unless otherwise provided by rules adopted pursuant
to chapter 91, then or thereafter paid in accordance with the programs from
which the person receives assistance.  The department shall be obligated to
annually update, as an accounting measure, the actual amount of the liens
recorded in the bureau of conveyances.



(d)  The department shall issue certificates of
release or partial release upon satisfaction or partial satisfaction of the  liens. 
Certificates of release or partial release of any real property lien issued by
the director or the director's authorized representative shall be recorded in
the bureau of conveyances.  The director shall consider issuing conditional
certificates of release in cases of extreme hardship as set out in rules
adopted under chapter 91.  The registrar shall forthwith cause the same to be
indexed in the general indexes in a like manner as the original  liens.  No fee
shall be charged for any of the recording.  The liens herein provided for shall
take priority over any other lien subsequently acquired or recorded except tax
liens and except that, in the estate of a beneficiary, the actual funeral
expenses, the expenses of the last sickness, the cost of administration of the
estate, and any allowance made to the surviving spouse and children for their
support during administration of the estate, shall have priority and preference
over the liens herein imposed, and over any claim against an estate filed under
section 346-37.



The liens shall be enforceable by the
department by suit in the appropriate court or shall be enforceable as a claim
against the estate of the recipient under section 346-37, having priority over
all other debts except taxes, the actual funeral expenses, the expenses of last
sickness, the cost of administration of the estate, and any allowance made to
the surviving spouse and children for their support during administration of
the estate.



The liens shall be enforceable as a claim under
section 346-37 against the estate of a recipient under any circumstances if the
estate is admitted to probate at the instance of any interested party.



Whenever the department is satisfied that the
collection of the amount of assistance paid a recipient will not be jeopardized
or that the release or waiver of the priority of the liens against the
recipient's property, in whole or in part, is necessary to provide for the
maintenance or support of the recipient, the recipient's spouse, or any minor
or incapacitated child, it may release or waive the priority of the liens with
respect to all or any part of the real property.



The recipient, the recipient's heirs, personal
representatives, or assigns may discharge the liens at any time by paying the
amount thereof to the department which shall execute a satisfaction thereof. 
The department may at its discretion compromise the collection of any such
liens, but such compromise shall be made only when the recipient, the
recipient's heirs, personal representatives, or assigns prove that the
collection of the full amount of the liens or claim would cause undue hardship
or the liens or claim are otherwise uncollectible.



The proceeds from the enforcement, payment, or
compromise of the liens shall be paid into the treasury of the State.  If the
amount of assistance reflected by the proceeds was paid in part by federal
funds, the proper portion of these funds shall be paid by the director of
finance to the treasury of the United States.  The director of finance shall
thereupon report such payment to the department.  If the federal funds are not
paid directly into the treasury of the United States, these federal funds shall
be credited by the director of finance to the department for expenditure for
assistance without need for further appropriation.



If at any time the federal government, or any
agency or instrumentality thereof, requires, as a condition to any grant of
assistance, the performance of conditions inconsistent with this section, or
desisting from actions provided by this section, the governor may suspend, upon
a finding to that effect and to the extent of such requirement, any provisions
of this section to the end that such federal assistance may be received.



The department shall submit an annual report to
the legislature, which shall include a list of liens held by the department on
real property.  This report shall include but not be limited to a description
of the value of the liens, the legal status of the liens, and when the liens
were initiated.



The department shall adopt rules pursuant to
chapter 91 necessary for the purposes of this section. [L 1980, c 16, §1; gen
ch 1985; am L 1987, c 339, §4; am L 1988, c 82, §1; am L 1994, c 187, §2; am L
1997, c 65, §1; am L 2001, c 150, §2]



 



Revision Note



 



  Subsection (b)(1)(C) designation added pursuant to
§23G-15(1).