1725.2 Liens

In cases where a medical assistance recipient has received inpatient care from a nursing home or other medical institution and the recipient is not reasonably expected to return home, the agency may impose a lien on the recipient’s real property.

A lien may only be imposed on persons who have received funded care in a Medicaid approved facility (see 8112 and 8172 ), including those receiving institutional care under a PACE plan for at least 6 months. Liens are NOT applicable to persons in independent living (including QMB, LMB and Working Healthy), receiving HCBS, PACE services in the community or to nursing facility residents where payments are not being made to the facility.

Medical Verification - Once the recipient has been continuously institutionalized and received 6 months of compensated institutional care, the agency may presume that the recipient will not be discharged from the facility to return home. When that occurs, the agency will create a report listing all recipients meeting the 6-month threshold and send it to the estate recovery unit (ERU) for review. The report should be run and sent to ERU no later than the end of the seventh month in which compensated institutional care has been received.

Notice to Recipient of Agency’s Intent to Impose Lien - If the agency determines the recipient is not reasonably expected to return home, the ERU will send a notice to the recipient or the recipient’s representative of the agency’s determination and the agency’s intent to impose a medical assistance lien on real property owned by the recipient.

Administrative Hearing - The agency’s notice will advise the recipient or representative of their right to request an administrative hearing. The notice will specify the method and time limits for requesting such hearing. The issue at the hearing will be whether the recipient can reasonably be expected to be discharged and returned home. If no hearing is requested within the time period for requesting a hearing outlined in 1611.1 , the agency may file a lien on the real property of the recipient. If a hearing has been requested, no lien may be imposed until administrative and judicial matters have been completed.

Imposition of Lien - To impose a lien, the agency will file a written lien with the Register of Deeds of the county where the real property is located.

Restrictions on Imposition of Lien - The medical assistance lien may not be imposed on the home of the recipient when any of the following individuals are residing in the home: spouse of such recipient, (lien may be imposed if spouse is not living in the home). recipient’s child who: under the age of 21. blind; or permanently disabled. recipient’s sibling who has equity interest in recipient’s home and who has continuously resided in the home for at least one year immediately prior to the recipient’s admission into a medical facility for long-term care and continues to reside therein.

Content and Value of Lien - The lien shall state the nature and amount of the lien at the time of imposition, the legal description of the property affected and the recipient’s interest in the property. Lien value will be based on the amount of assistance paid on behalf of the recipient beginning 6 months from the date the recipient became eligible for compensated inpatient care until the filing of the lien plus any amount paid thereafter by the agency on behalf of the recipient.

Priority of Lien - The medical assistance lien is junior and subject to all prior liens of record.

Foreclosure of Lien - The agency may foreclose a medical assistance lien by filing an action in a Kansas district court for the county where the property is located. This action may be filed before or after the death of the recipient and may be filed in a civil action or as part of a probate proceeding. Such foreclosure is limited by the restrictions in (9).

Restrictions on Enforcement of Liens - The medical assistance lien may not be enforced after the death of the recipient and his or her spouse. A lien on the home may not be enforced when any of following are residing in the home: recipient’s child who: under the age of 21. blind or permanently disabled. provided care to the recipient, allowing him or her to remain in the home and defer NF entry for at least 2 years. a sibling who had resided in the home for one or more years immediately before the recipient’s admission to the nursing home or medical facility and has resided there continuously since that time.

Release of Liens - The medical assistance lien generally remains on the property unless: the lien is satisfied. the lien is terminated by foreclosure of a prior lien of record or settlement action taken in lieu of foreclosure. the lien is foreclosed by the agency. a waiver of estate recovery action has been granted (see 1725.3 ); or the recipient leaves the nursing home or medical facility and returns to and resides on the property subject to the medical assistance lien for a continuous period of 90 days.

Lien Dormancy - If the medical assistance lien has not been foreclosed within 10 years from the date of filing the lien, the lien will become dormant and cease to operate as a lien on the real estate. Such dormant lien may be revived under the provisions of K.S.A. 60-2403 et seq.