Chapter 600 Oregon Laws 2001

AN ACT

SB 392

Relating to notice of claim for damages by applicant for or recipient of public assistance; creating new provisions; and amending ORS 416.510, 416.530, 416.540, 416.550, 416.560, 416.570, 416.580, 416.590, 416.600 and 416.610.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 416.510 is amended to read:

416.510. As used in ORS 416.510 to 416.610, unless the context requires otherwise:

(1) “Action” means an action, suit or proceeding.

(2) “Applicant” means an applicant for assistance.

(3) “Assistance” means moneys paid by the [Adult and Family Services Division] Department of Human Services to persons directly and moneys paid by the [division] department or by a prepaid managed care health services organization for services provided under contract pursuant to ORS 414.725 to others for the benefit of such persons.

(4) “Claim” means a claim of a recipient of assistance for damages for personal injuries against any person or public body, agency or commission other than the State Accident Insurance Fund Corporation or Workers’ Compensation Board.

(5) “Compromise” means a compromise between a recipient and any person or public body, agency or commission against whom the recipient has a claim.

(6) “Department” means the Department of Human Services.

[(6)] (7) “Judgment” means a judgment in any action or proceeding brought by a recipient to enforce the claim of the recipient.

(8) “Prepaid managed care health services organization” means a managed health, dental or mental health care organization that contracts with the Department of Human Services on a prepaid capitated basis under the Oregon Health Plan pursuant to ORS 414.725. Prepaid managed care health services organizations may be dental care organizations, fully capitated health plans, mental health organizations or chemical dependency organizations.

[(7)] (9) “Recipient” means a recipient of assistance.

[(8)] (10) “Settlement” means a settlement between a recipient and any person or public body, agency or commission against whom the recipient has a claim.

[(9) “Division” means the Adult and Family Services Division.]

SECTION 2. ORS 416.530 is amended to read:

416.530. When any applicant or recipient makes a claim or, without making a claim, begins an action to enforce such claim, the applicant or recipient, or the attorney for the applicant or the recipient, shall immediately notify the [Adult and Family Services Division] Department of Human Services and the recipient’s prepaid managed care health services organization, if the recipient is receiving services from the organization. If an applicant or recipient, or the attorney for the applicant or the recipient, has given notice that the applicant or recipient has made a claim, it shall not be necessary for the applicant or recipient, or the attorney for the applicant or the recipient, to give notice that the applicant or recipient has begun an action to enforce such claim. The notification shall include the name and address of each person or public body, agency or commission against whom claim is made or action is brought. If claim is made or action is brought against a corporation, the address given in such notification shall be that of its principal place of business. If the applicant or recipient [be] is a minor, the parents, legal guardian or foster parents of the minor shall give the notification required by this section.

SECTION 3. ORS 416.610 is amended to read:

416.610. The [Adult and Family Services Division] Department of Human Services or the recipient’s prepaid managed care health services organization, if the recipient is receiving services from the organization, shall have a cause of action against any recipient who fails to give the notification required by ORS 416.530 for amounts received by the recipient pursuant to a judgment, settlement or compromise to the extent that the [division] department or the prepaid managed care health services organization could have had a lien against such amounts had such notice been given.

SECTION 4. ORS 416.540 is amended to read:

416.540. (1) Except as provided in subsection (2) of this section and in ORS 416.590, the [Adult and Family Services Division] Department of Human Services shall have a lien upon the amount of any judgment in favor of a recipient or amount payable to the recipient under a settlement or compromise for all assistance received by such recipient from the date of the injury of the recipient to the date of satisfaction of such judgment or payment under such settlement or compromise.

(2) The lien does not attach to the amount of any judgment, settlement or compromise to the extent of attorney’s fees, costs and expenses incurred by a recipient in securing such judgment, settlement or compromise and to the extent of medical, surgical and hospital expenses incurred by [such] the recipient on account of the personal injuries for which the recipient had a claim.

(3) The department may assign the lien described in subsection (1) of this section to a prepaid managed care health services organization for medical costs incurred by a recipient:

(a) During a period for which the department paid a capitation or enrollment fee; and

(b) On account of the personal injury for which the recipient had a claim.

(4) A prepaid managed care health services organization to which the department has assigned a lien shall notify the department no later than 10 days after filing notice of a lien.

(5) For the purposes of ORS 416.510 to 416.610, the department may designate the prepaid managed care health services organization to which a lien is assigned as its designee.

(6) If the department and a prepaid managed care health services organization both have filed a lien, the department’s lien shall be satisfied first.

SECTION 5. ORS 416.550 is amended to read:

416.550. (1) Upon receiving notice under ORS 416.530, to perfect its lien the [Adult and Family Services Division] Department of Human Services shall:

(a) File a notice of lien, substantially in the form prescribed in ORS 416.560, with the recording officer of the county in which the person against whom claim is made or action is brought resides. If the claim or action [be] is against a corporation, the notice of lien shall be filed with the recording officer of the county within the state in which such corporation has its principal place of business. If the claim or action [be] is against a public body, agency or commission, the notice of lien shall be filed with the recording officer of the county in which the public body, agency or commission has its main offices; and

(b) Prior to the date of satisfaction of the judgment or payment under the settlement or compromise, send a certified copy of the notice of lien by registered mail or by certified mail with return receipt to each person or public body, agency or commission against whom claim is made or action is brought by the recipient.

(2) Upon the filing of a notice of lien by the [division] department, the recording officer shall enter the name of the injured person, the approximate date of the injury and the name of the [division] department as lienor in the hospital lien docket provided for in ORS 87.575 and shall make an index thereto in the names of the injured persons and the [division] department.

SECTION 6. ORS 416.560 is amended to read:

416.560. The form of the notice required by ORS 416.550 (1) shall be substantially as follows:

______________________________________________________________________________

Notice is hereby given that the [Adult and Family Services Division] Department of Human Services has rendered assistance to ________, a person who was injured on or about the __ day of ____ in the city of ____ and State of ____, and the [Adult and Family Services Division] Department of Human Services hereby asserts a lien to the extent provided in ORS 416.510 to 416.610, for the amount of such assistance upon any amount due and owing ________ (name of injured person) under a judgment, settlement or compromise from ____ alleged to have caused such injuries and from any other person or public body, agency or commission liable for the injury or obligated to compensate the injured person on account of such injuries.

[Adult and Family Services Division]

[by ________________, Assistant Director.]

Department of Human Services

by ________________, Director of Human Services or designee.

State of Oregon, )

) ss.

County of_______ )

I, ________, being first duly sworn on oath say: That I am the [Assistant Director for Adult and Family Services] Director of Human Services or designee; that I have read the foregoing notice of lien and know the contents thereof and believe the same to be true.

________________

Subscribed and sworn to before me this __ day of ____, [in the year of our Lord] ____.

________________, Notary Public.

______________________________________________________________________________

SECTION 7. ORS 416.570 is amended to read:

416.570. Immediately after a judgment has been rendered in favor of a recipient or a settlement or compromise has been agreed upon, the person or public body, agency or commission bound by such judgment, settlement or compromise shall notify the [Adult and Family Services Division] Department of Human Services. After such notification the [division] department shall send a statement of the amount of its lien to such person or public body, agency or commission by registered mail or by certified mail with return receipt.

SECTION 8. ORS 416.580 is amended to read:

416.580. (1) After a notice of lien is filed in the manner provided in ORS 416.550 (2), any person or public body, agency or commission who makes any payment to the injured recipient, the heirs, personal representatives or assigns of the recipient, or their attorneys, under a judgment, settlement or compromise without previously having paid to the [Adult and Family Services Division] Department of Human Services the amount of its lien, shall be liable to the State of Oregon, for the use and benefit of the [division] department for a period of 180 days after the date of such payment for the amount of such payment to the extent that the lien attached thereto under ORS 416.540.

(2) Any amount paid to the [division] department in satisfaction of its lien shall be distributed by the [division] department to the United States Government and the Public Welfare Account, as their interests may appear.

(3) If the recipient [be] is a minor, no payments to the [division] department in satisfaction of its lien and, except to the extent of the fees, costs and expenses specified in ORS 416.540 (2), no payments to the recipient under a judgment, settlement or compromise shall be made until a hearing has taken place and the court has issued its order under ORS 416.590.

SECTION 9. ORS 416.590 is amended to read:

416.590. (1) If the recipient is a minor, after the date on which a judgment in favor of the recipient is rendered or settlement or compromise is agreed upon, the guardian of the minor or the conservator of the estate of the minor shall petition the court having probate jurisdiction in the county in which the guardian or conservator was appointed to determine the sum that will be needed for the minor’s complete physical rehabilitation. If the guardian or the conservator of the minor’s estate [fail] fails to petition the court, any other interested person or public body, agency or commission may file the petition. The lien of the [Adult and Family Services Division] Department of Human Services provided for in ORS 416.510 to 416.610 shall not attach to the amount of the judgment, settlement or compromise to the extent of the sum needed for the rehabilitation. Among other data, the petition shall contain the name and address of each person or public body, agency or commission liable to the minor under the judgment, settlement or compromise.

(2) The court shall conduct a hearing to determine the sum that will be needed by the minor and at least 10 days prior to the date of the hearing, the clerk of the court shall notify the conservator of the minor’s estate, the [division] department and the person who filed the petition, if the person is someone other than the guardian or the conservator of the minor’s estate, of the date on which the hearing will be held. At the hearing any interested person as well as witnesses for the minor and for the [division] department may testify on the question before the court. Upon reaching a decision, the court shall issue an order setting forth the decision and the clerk of the court shall enter the order in an appropriate record book. The clerk shall also send a copy of the order to the guardian or the conservator of the minor’s estate, the person who filed the petition if the person is someone other than the guardian or the conservator of the minor’s estate, the [division] department and to each person or public body, agency or commission liable to the minor under the judgment, settlement or compromise.

SECTION 10. ORS 416.600 is amended to read:

416.600. When the [Adult and Family Services Division] Department of Human Services determines that a recipient will incur additional medical, surgical or hospital expenses or that additional assistance will have to be given to the recipient after the date of satisfaction of judgment or payment under a settlement or compromise, the [division] department may release any portion of its lien to the extent of such anticipated expenses and assistance.

SECTION 11. The amendments to ORS 416.510, 416.530, 416.540, 416.550, 416.560, 416.570, 416.580, 416.590, 416.600 and 416.610 by sections 1 to 10 of this 2001 Act apply to claims or actions initiated on or after the effective date of this 2001 Act.

Approved by the Governor June 25, 2001

Filed in the office of Secretary of State June 25, 2001

Effective date January 1, 2002

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