Hawaii-2012-SB2713-Amended

SECTION 1. The legislature finds that the lien amounts stated in the department of human services' notice of lien have been challenged on numerous occasions in cases where the department is seeking restitution.

The purpose of this Act is to clarify that the lien amount stated in notices of lien sent by the department of human services for reimbursement of medicaid benefits shall be presumed to be valid under certain conditions.

SECTION 2. Section 346-29.5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(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.

When restitution is sought in connection with the sentencing of a third person who has caused injury to a recipient of medical assistance, the department shall provide to the person against whom restitution is sought a written notice of lien and an itemized list of payments that identifies the provider of services, the dates of services, amounts billed, amounts paid, and dates of payments. Absent a good faith basis contesting the amount or validity of a specific line item charge or charges in the lien, the entire amount shall be presumed to be valid in determining the amount of restitution.

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."

SECTION 3. Section 346-37, Hawaii Revised Statutes, is amended by amending subsection (g) to read as follows:

"(g) The lien of the department for reimbursement of costs of medical assistance or burial payments under subsection (f), shall attach by a written notice of lien served upon the claimant's attorney or upon the third person, the third person's agent, attorney, or insurance company. The method of service shall be by certified or registered mail, return receipt requested, or by delivery of the notice of lien personally to the individuals referred to. Service by certified or registered mail is complete upon receipt. The notice of lien shall state the name of the injured, diseased, or deceased person, the amount of the lien, and the date of the accident or incident which caused the injuries, disease, or death which necessitated the department's medical assistance or burial payments. If the notice of lien is served upon the claimant's attorney, the notice of lien shall state that the claimant's attorney shall pay the full amount of the lien from the proceeds of any judgment, settlement, or compromise based on the incident or accident. If the notice of lien is served upon the third person, the third person's agent, attorney, or insurance company, the notice of lien shall state that the third person shall pay the full amount of the lien prior to disbursing any of the proceeds to the claimant or to the claimant's attorney. A notice of lien may be amended from time to time until extinguished, each amendment taking effect upon proper service.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

THE SENATE	S.B. NO.	2713
TWENTY-SIXTH LEGISLATURE, 2012		S.D. 1
STATE OF HAWAII