2013 Hawaii Revised Statutes
TITLE 20. SOCIAL SERVICES
346. Department of Human Services
346-29.5 Real property liens.

§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 individuals with intellectual disabilities, 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. The written notice of lien shall be accompanied by an itemized list of payments made by the department that identifies the provider of services, the dates of services, the amounts billed and paid, and the dates of payments, and shall be provided to the person against whom restitution is sought. Absent a good faith basis contesting the amount or validity of a specific line item charge or charges in the lien, the entire lien amount shall be presumed to be valid. 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 that permitted the 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; am L 2011, c 220, §11; am L 2012, c 211, §3]

Revision Note

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