§346-29.5  Real property liens.  (a) The department of human services may require of any person applying for orcurrently receiving assistance under the department's programs, including butnot limited to social service payments, financial assistance, medicalassistance, and food stamps, who owns or has any interest in real property,that the person shall enter into an agreement with the department that futuregrants of assistance shall be and constitute a lien against the interest inreal property, and shall remain a lien until satisfied and discharged, with theexception of home property lived on by the assistance household.

(b)  The department may also place a lienagainst the real property of any recipient receiving medical assistance who isan inpatient in a nursing facility, intermediate care facility for the mentallyretarded, or other medical institution, after a state determination, pursuantto notice and hearing requirements of chapter 91, that the recipient cannotreasonably be expected to be discharged from the medical institution andreturned home.  There is a rebuttable presumption that the recipient cannotreasonably be expected to be discharged from the facility and return home ifthe recipient or a representative of the recipient declares that there is nointent to return home or if the recipient has been institutionalized for sixmonths or longer without a discharge plan.

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

(A)  Spouse;

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

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

is lawfully residing in the home.

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

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

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

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

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

(4)  Any lien imposed with respect to this subsectionshall be dissolved upon the individual's discharge from the medical institutionand return home.

(c)  The agreement in subsection (a) or thelien in subsection (b) shall be recorded in the bureau of conveyances, or filedin the office of the assistant registrar of the land court.  When the agreementor lien is recorded in the bureau of conveyances, the registrar shall forthwithcause the same to be indexed in the general indexes of the bureau ofconveyances.  From and after the recording in the bureau of conveyances theliens shall attach to all interests in real property then owned by the personand not registered in the land court, and from and after the filing thereof inthe office of the assistant registrar of the land court, the liens shall attachto any such interest in land then registered therein.  The liens shall be forall amounts of assistance, unless otherwise provided by rules adopted pursuantto chapter 91, then or thereafter paid in accordance with the programs fromwhich the person receives assistance.  The department shall be obligated toannually update, as an accounting measure, the actual amount of the liensrecorded in the bureau of conveyances.

(d)  The department shall issue certificates ofrelease or partial release upon satisfaction or partial satisfaction of the  liens. Certificates of release or partial release of any real property lien issued bythe director or the director's authorized representative shall be recorded inthe bureau of conveyances.  The director shall consider issuing conditionalcertificates of release in cases of extreme hardship as set out in rulesadopted under chapter 91.  The registrar shall forthwith cause the same to beindexed in the general indexes in a like manner as the original  liens.  No feeshall be charged for any of the recording.  The liens herein provided for shalltake priority over any other lien subsequently acquired or recorded except taxliens and except that, in the estate of a beneficiary, the actual funeralexpenses, the expenses of the last sickness, the cost of administration of theestate, and any allowance made to the surviving spouse and children for theirsupport during administration of the estate, shall have priority and preferenceover the liens herein imposed, and over any claim against an estate filed undersection 346-37.

The liens shall be enforceable by thedepartment by suit in the appropriate court or shall be enforceable as a claimagainst the estate of the recipient under section 346-37, having priority overall other debts except taxes, the actual funeral expenses, the expenses of lastsickness, the cost of administration of the estate, and any allowance made tothe surviving spouse and children for their support during administration ofthe estate.

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

Whenever the department is satisfied that thecollection of the amount of assistance paid a recipient will not be jeopardizedor that the release or waiver of the priority of the liens against therecipient's property, in whole or in part, is necessary to provide for themaintenance or support of the recipient, the recipient's spouse, or any minoror incapacitated child, it may release or waive the priority of the liens withrespect to all or any part of the real property.

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

The proceeds from the enforcement, payment, orcompromise of the liens shall be paid into the treasury of the State.  If theamount of assistance reflected by the proceeds was paid in part by federalfunds, the proper portion of these funds shall be paid by the director offinance to the treasury of the United States.  The director of finance shallthereupon report such payment to the department.  If the federal funds are notpaid directly into the treasury of the United States, these federal funds shallbe credited by the director of finance to the department for expenditure forassistance without need for further appropriation.

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

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

The department shall adopt rules pursuant tochapter 91 necessary for the purposes of this section. [L 1980, c 16, §1; gench 1985; am L 1987, c 339, §4; am L 1988, c 82, §1; am L 1994, c 187, §2; am L1997, c 65, §1; am L 2001, c 150, §2]

 

Revision Note

 

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