68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1438
B-Engrossed
House Bill 2345
Ordered by the Senate May 25
Including House Amendments dated April 25 and Senate Amendments
dated May 25
Sponsored by Representative MANNIX
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Creates lien for long term care facilities. Defines terms.
Provides for lien for amount of unpaid contracted costs of care
plus interest in favor of long term care facility. Specifies
contents of notice of lien.
Provides procedure for claiming and foreclosing lien. { +
Provides procedure for filing certificate that notice of lien is
discharged. + }
A BILL FOR AN ACT
Relating to liens for services provided by long term care
facilities.
Be It Enacted by the People of the State of Oregon:
**************************** SECTION 1. { + As used in this
Act, unless the context requires otherwise:
(1) 'Authorized representative' means a person appointed under
authority of ORS 126.103 or 126.157 as a guardian or conservator
of an individual and any other person holding funds or receiving
benefits or income on behalf of an individual.
(2) 'Care' means all the services rendered in a long term care
facility, including but not limited to medical care, room and
board, nursing care, administrative costs, supplies, equipment
and ancillary services such as therapies.
(3) 'Decedent' means an individual who has died leaving
property that is subject to administration.
(4) 'Decedent's estate' means the real and personal property of
a decedent, as from time to time changed in form by sale,
reinvestment or otherwise, and augmented by any accretions or
additions thereto and substitutions therefor or diminished by any
decreases and distributions therefrom. The term does not include
assets placed in trust for the decedent by other persons.
(5) 'Long term care facility' means facilities licensed as
skilled nursing facilities, as defined in ORS 442.015, and
residential care facilities and adult foster homes licensed under
ORS chapter 443.
(6) 'Personal estate' means all the real and personal property
of a living individual. The term includes real and personal
property held by an authorized representative of an individual
and all real and personal property held by any other person on
behalf of an individual.
(7) 'Personal property' includes any object or item, other than
real property, that by itself is valued at more than $2,000 and
for which a certificate of title is required by the laws of this
state. + }
**************************** SECTION 2. { + (1) When an
individual receives care at a long term care facility under a
written contract that does not violate state or federal law, the
individual receiving the care, the personal estate of that
individual or the decedent's estate of that individual is liable
for the contracted costs of care. The individual receiving care
and any authorized representative shall be given an itemized
statement of goods and services provided as each payment becomes
due. If the individual or an authorized representative of that
individual refuses to pay for the costs of care, the unpaid
amount plus interest shall be a lien in favor of the long term
care facility. The lien shall arise as each payment becomes due
and shall continue until the liability is satisfied. The lien
shall attach to the title to and interest in the real and
personal property of the personal estate of the individual
receiving care.
(2) Upon the death of an individual receiving care at a long
term care facility, the decedent's estate of that individual is
liable for any unpaid contracted costs of care. The unpaid amount
plus interest shall be a lien in favor of the long term care
facility. Collection of any amount from a decedent's estate shall
be made in accordance with ORS chapter 115 and with the same
priorities as provided in ORS 115.125. The cost of care may be
included with the medical and hospital expenses of the last
illness as set forth in ORS 115.125 (1)(e). If the cost of care
does not qualify as medical and hospital expenses of the last
illness, the cost of care shall have the same priority under ORS
115.125 as all other claims against the decedent's estate.
(3) At the time of signing a written contract for care at the
facility, a long term care facility shall provide to the
individual who will receive care under the contract or to the
authorized representative of the individual a written statement
describing the provisions of this Act and the procedures, process
and rights and responsibilities of the individual receiving care
and the long term care facility under this Act. Notwithstanding
sections 3 and 6 of this Act, if a long term care facility does
not provide such written statement as required by this subsection
to an individual or an authorized representative, the lien
created by this section for the contracted costs of care provided
to the individual may not be perfected and may not be foreclosed.
(4) Notwithstanding section 1 (6) of this Act and subsection
(1) of this section, real and personal property held in trust by
a trustee for an individual receiving care are subject to the
laws of this state applicable to trusts. + }
**************************** SECTION 3. { + (1) In order to
perfect a lien created by section 2 of this Act, a long term care
facility shall:
(a) File a notice of lien with the recording officer of the
county in which the individual who received care from the long
term care facility resides; and
(b) Serve a certified copy of the notice of lien by registered
or certified mail upon the individual or the authorized
representative of the individual.
(2) A person claiming a lien under this Act shall perfect the
lien no sooner than 60 days or later than 120 days after the date
on which payment becomes due. + }
**************************** SECTION 4. { + The notice of lien
required under section 3 of this Act shall be a written statement
verified by the oath of an officer of the long term care facility
that asserts a claim for the lien and that contains:
(1) A true statement of demand, after deducting all credits and
offsets;
(2) The name of the individual who received care;
(3) An itemized statement of services provided;
(4) A statement that the amount claimed is a true and bona fide
existing debt as of the date of filing the notice of lien;
(5) The date on which payment for services provided by the long
term care facility is due; and
(6) A statement that the individual or an authorized
representative has been informed in writing of the requirements
and procedures for establishing eligibility for Medicaid,
including the right to an assessment that determines the extent
of spouses' nonexempt resources at the time of
institutionalization and attributes to the community spouse an
equitable share of the resources that can not be considered
available for payment of costs for the medical care of the
institutionalized spouse in the process of spending down to
Medicaid eligibility levels. + }
**************************** SECTION 5. { + The recording
officer of the county shall record the notices filed under
section 3 of this Act in an appropriate lien docket. + }
**************************** SECTION 6. { + A lien created by
section 2 of this Act may be foreclosed by an action in the
district or circuit court in accordance with ORS chapter 88. In a
suit to foreclose a lien created by section 2 of this Act, the
court, upon entering judgment for the lien claimant, shall allow
as part of the lien the moneys paid for the recording of the
notice of lien under section 5 of this Act. The court shall also
allow reasonable attorney fees at trial and on appeal to the
prevailing party. + }
**************************** SECTION 7. { + Notwithstanding
section 2 (1) and (2) of this Act:
(1) A lien created by section 2 of this Act on the home of a
living individual who received care may not be foreclosed for as
long as any of the following individuals reside in the home:
(a) The individual who received care.
(b) The spouse of the individual.
(c) A minor or disabled child of the individual.
(d) A sibling of the individual who has an equity interest in
the home, but only when the sibling continuously resided in the
home during the calendar year immediately preceding the date on
which the individual first received care.
(e) Any other child of the individual, but only when the child
continuously resided in the home during the two-year period
immediately preceding the date on which the individual first
received care and provided assistance during that period that
delayed the need for care.
(2) A lien created by section 2 of this Act on the home of a
deceased individual who received care may not be foreclosed for
as long as any of the following individuals reside in the home:
(a) The surviving spouse of the individual.
(b) A minor or disabled child of the individual.
(c) A sibling of the individual, but only when the sibling
continuously resided in the home during the calendar year
immediately preceding the date on which the individual first
received care.
(d) Any other child of the individual, but only when the child
continuously resided in the home during the two-year period
immediately preceding the date on which the individual first
received care and provided assistance during that period that
delayed the need for care.
(3) A lien created by section 2 of this Act on other real
property of a deceased individual may not be foreclosed while
there is a surviving spouse or minor or disabled children of the
individual. + }
**************************** SECTION 8. { + A lien created by
section 2 of this Act shall not be enforced so as to interfere
with:
(1) Any assets or income allowed to the community spouse or
dependent family member under 42 U.S.C. �1396r-5(d) or any rule
of the Department of Human Resources.
(2) The priority given to the recovery of medical assistance
payments under ORS 115.125 (1)(h) or other medical assistance
claims under ORS 414.105 (2) and (3).
(3) The eligibility of a person for medical assistance or
entitlement to Medicaid assistance payments. + }
**************************** SECTION 9. { + (1) Except as
provided in subsection (2) of this section, if a suit to
foreclose a lien created by section 2 of this Act is not
commenced in an appropriate court within the 180-day period
immediately following the date on which the lien is perfected
under section 3 of this Act, the lien shall cease to exist.
(2) Any period of time during which a lien created by section 2
of this Act may not be foreclosed under section 7 of this Act
shall not be part of the period of time during which the lien
exists under subsection (1) of this section. The existence of a
lien created by section 2 of this Act shall not be extended in
any case for longer than 180 days after a circumstance preventing
foreclosure under section 7 of this Act ceases. + }
**************************** SECTION 10. { + (1) When a long
term care facility receives payment from an individual, an
individual's estate, the State of Oregon or any other source for
the care claimed in a notice of lien filed under section 3 of
this Act, the long term care facility shall file with the
recording officer of the county in which the notice of lien was
filed a certificate declaring that payment has been received and
that the notice of lien is discharged.
(2) Within 10 days after being notified that the individual is
eligible for Medicaid, the long term care facility shall file
with the recording officer of the county in which the notice of
lien was filed a certificate releasing the claim of lien upon any
property protected under section 8 of this Act.
(3) The recording officer of the county shall record the
certificate of discharge or release in the appropriate lien
docket.
(4) If, after receiving payment for the care claimed in a
notice of lien filed under section 3 of this Act, a long term
care facility fails to discharge the notice of lien or release
the claim of lien within 10 days, the long term care facility is
liable to the individual or to the spouse or the estate of the
individual for the amount of $100 in damages.
(5) In all actions brought under this section, the court may
allow reasonable attorney fees at trial and on appeal to the
prevailing party. + }
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