OAR 309-012-0035: Enforcement of Recoupment Liens

(1) Purpose. This rule establishes procedures for implementing recoupment liens used in carrying out Reimbursement Orders issued by the Division. (2) Statutory Authority and Procedure. This rule is authorized by ORS 179.770 and carries out the provisions of ORS 179.653 and 179.655. (3) Definitions. As used in this rule: (a) “Cost of Care” means the cost determined by the Division in accordance with ORS 179.701; (b) “Division” means the Addictions and Mental Health Division of the Oregon Health Authority; (c) “Person” means: (A) A patient who is receiving or has received treatment or care at a state institution for the mentally ill; (B) A current or former resident at a state institution for the mentally retarded. (d) “Person’s Representative” means a conservator, guardian of the person, or estate of the person in a state institution, or an individual who has been appointed by a court in this or another state or by Federal Court to serve as the legal representative of a person in a state institution, and also includes an individual whom a person in a state institution has designated to receive the notice of information involved in the particular transaction; (e) “Recoupment Lien” means a charge or security or encumbrance upon real or personal property that can be used to satisfy the amount due for the person’s cost of care; (f) “Reimbursement Order” means the order issued to determine the person’s ability to pay pursuant to ORS 179.640(1) and (2); (g) “State Institution” means Dammasch State Hospital in Wilsonville, Oregon State Hospital in Salem, Fairview Training Center in Salem, and Eastern Oregon Hospital and Training Center in Pendleton; (h) “Warrant” means the document issued by the Division directed to the sheriff of any county of the state commanding the sheriff to levy upon and sell the real and personal property which is subject to satisfaction of the recoupment lien. (4) Enforcement of Lien by Issuance of Warrant. The Division shall enforce its recoupment lien created by ORS 179.653 by issuance of a warrant in the manner stated in 179.655. Any warrant issued by the Division pursuant to 179.655 shall clearly provide that the sheriff or other person executing the warrant shall not levy upon and sell any real or personal property that would be exempt under Oregon law from execution pursuant to a judgment. However, the Division shall not issue a warrant pursuant to 179.655 where: (a) The amount due to the Division for the cost of care of a person in a state institution is not at least 30 days overdue; (b) Provision has been made to secure the payment by bond or deposit or otherwise in conformance with section (5) of this rule; (c) The person has exercised the right to appeal the Reimbursement Order pursuant to OAR 309-012-0025(6) and that appeal is still pending; (d) Sixty-one days have not passed since the issuance of the Reimbursement Order; (e) The person or the person’s representative has not been given at least ten days’ prior written notice that the Division intends to issue such a warrant. (5) Methods of Securing Satisfaction of Reimbursement Order: (a) The issuance of a warrant to the sheriff to enforce collection of delinquent money due the Division for the cost of care for a person in a state institution will be stayed either by paying the amount due and accrued interest after it becomes due or by securing payment of that amount by bond or deposit or otherwise; (b) The bond given by the person must be for an amount not less than the amount due, plus interest for a reasonable period determined by the Division: (A) The bond must be executed by: (i) A surety company which is registered with, and under the supervision of, the Insurance Commissioner of the State of Oregon; or (ii) By two or more individual sureties, each of whom shall be a resident and homeowner or holder of an interest in land within the state and each of whom shall be worth sums specified in the under-taking, exclusive of property exempt from execution and over and above all valid debts and liability. (B) The Division may allow more than two sureties to justify several amounts less than that expressed in the undertaking, if the whole justification is equivalent to that of two sufficient undertakings. (c) Any one of the following items, or combination of items acceptable to the Division, equal to the amount due, plus accrued interest thereon, may be deposited with the Division: (A) A deposit of money; (B) A certified check or checks on any state or national bank within the State of Oregon payable to the Division; (C) Satisfactory bonds negotiable by delivery, or obligations by the U.S. Government negotiable by delivery; or (D) Any other security satisfactory to the Division. (d) The Division may require additional security whenever, in its opinion, the value of the security pledged is no longer sufficient to adequately secure the payment of the amount due, plus accrued interest thereon. (6) Release of Tax Lien and Clouds on Title. Any request made to the Division for the release of a warrant, where such warrant is not in fact a lien on title to the real property in question but merely a cloud on the title to such real estate, shall be accompanied by a statement. This statement shall show the facts affecting the title to the real property in question that render the Division’s warrant a cloud on the title to such real property and the reasons the warrant does not actually constitute a lien thereon: (a) This type of request for release of a warrant should be accompanied by a current title report; (b) The Division may require other documentary proof showing the present condition of the title to the property in question.