PURPOSE: This rule implements the guidelines for placement of liens on the property of certain institutionalized Medicaid eligible persons, in accordance with the authority given to states in the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), as amended.

1. (1) When an applicant for Medicaid or a Medicaid recipient is a patient, or will become a patient, in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution, the Department of Social Services will determine if the placement of a lien against the property of the applicant or recipient is applicable. A lien is imposed on the property of an individual, in accordance with the authority given states in the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), when:

   1. (A) The Medicaid recipient is or has made application to become a patient in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution, if such individual is required, as a condition of receiving services in such institution, to spend for costs of medical care all but a minimal amount of his income required for personal needs;
   2. (B) The institutionalized Medicaid recipient owns property. Property includes the homestead and all other real property in which the person has a sole legal interest or a legal interest based upon co-ownership of the property which is the result of a transfer of property for less than fair market value within thirty-six (36) months prior to the person entering the nursing facility;

   3. (C) The department has determined after notice and opportunity for hearing that there is no reasonable expectation that the person can be discharged from the facility within one hundred twenty (120) days and return home. The hearing, if requested, will proceed under the provision of Chapter 536, RSMo, before a hearing officer designated by the director of the Department of Social Services. The fact that there is no reasonable expectation that the person can be discharged from the facility within one hundred twenty (120) days and return home may be substantiated by one (1) of the following:

      1. 1. Applicant/recipient states in writing

that he/she does not intend to return home within one hundred twenty (120) days;

1. 2. Applicant/recipient has been in the

institution for longer than one hundred twenty (120) days; and

1. 3. A physician states in writing that the

applicant/recipient cannot be expected to be discharged within one hundred twenty (120) days of admission; and

1. (D) A lien is imposed on the property unless one (1) of the following persons lawfully resides in the property:

   1. 1. The institutionalized person’s spouse;
   2. 2. The institutionalized person’s child

who is under twenty-one (21) years of age or is blind or permanently and totally disabled;

1. 3. The institutionalized person’s sibling

who has an equity interest in the property and who was residing in such individual’s home for a period of at least one (1) year immediately before the date of the individual’s admission to the institution.

1. (2) After determining the applicability of the lien, the Medicaid recipient is given an Explanation of TEFRA Lien. A person who objects to the imposition of a lien is ineligible for medical assistance. Ineligibility is based on the person’s objection without good cause to the imposition of the lien, which impedes the department’s ability to implement its lien requirements.
2. (3) The director of the department or the director’s designee will file for record, with the recorder of deeds of the county in which any real property is situated, a written Certificate of TEFRA Lien. The lien will contain the name of the Medicaid recipient and a description of the property. The recorder will note the time of receiving such notice and will record and index the certificate of lien in the same manner as deeds of real estate are required to be recorded and indexed. The county recorder shall be reimbursed by pre- 13 CSR 70-4

senting a statement showing the number of certificates and releases filed each calendar quarter to the Department of Social Services.

1. (4) The TEFRA lien will be for the debt due the state for medical assistance paid or to be paid on behalf of the Medicaid recipient. The amount of the lien will be for the full amount due the state at the time the lien is enforced. Fees paid to county records of deeds for filing of the lien will be included in the amount of the lien.
2. (5) The TEFRA lien does not affect ownership interest in a property until it is sold, transferred, or leased, or upon the death of the individual, at which time the lien must be satisfied.
3. (6) The lien will be dissolved in the event the individual is discharged from the institution and returns home. A Notice of TEFRA Lien Release will be filed within thirty (30) days with the recorder of deeds of the county in which the original Certificate of TEFRA Lien was filed.

AUTHORITY: sections 208.201, RSMo 2000 and 208.215 as enacted by the 93rd General Assembly. Emergency rule filed Aug. 15 2005, effective Sept. 1, 2005, expires Feb. 27, 2006. Original rule filed May 16, 2005, effective Nov. 30, 2005.

*Original authority: 208.201, RSMo 1987 and 208.215, RSMo 1981, amended 1982, 1987, 1990, 1993, 1996.