Administration of State Institutions
Unpaid costs as lien on property
- when appealable
(1)If any person or authorized representative refuses to pay for the cost of care as ordered by the Department of Corrections or the Oregon Health Authority under ORS 179.640 (Determination of ability to pay), the amount unpaid plus interest shall be a lien in favor of the State of Oregon. The lien shall arise as each payment is due under the order and shall continue until the liability with interest is satisfied. The lien shall be upon the title to and interest in the real and personal property of the personal estate.
(2)Prior to the filing of a distraint warrant as provided in ORS 179.655 (Enforcement of lien) (2), the lien shall only be valid against:
(a)Property of the person;
(b)Assets held by any authorized representative bound by the ability-to-pay order; and
(c)Assets subject to lien held by any person or entity having actual knowledge of the ability-to-pay order or the lien.
(3)Regardless of any other provision of law or statute that provides a procedure for establishing obligations, including the claim and payment provisions of ORS chapter 125, an authorized representative who has received notice and had an opportunity to request a contested case hearing shall comply with an ability-to-pay order upon demand by the agency. The agency may issue the demand any time after the order becomes final.
(4)An authorized representative who has not had an opportunity to request a contested case hearing, either because the authorized representative was not appointed at the time the ability-to-pay order became final, or was not given notice of the ability-to-pay order as required by ORS 179.640 (Determination of ability to pay) (4), shall not be bound by the order of the agency. To bind the authorized representative, the ability-to-pay order must be reissued and notice provided to the authorized representative pursuant to ORS 179.640 (Determination of ability to pay) (4). The authorized representative shall have the same appeal rights as if the order had originally been issued to the authorized representative. After the order becomes final, the authorized representative shall be bound as provided in subsection (3) of this section. The agency may not issue an execution of a lien or foreclose against property held by or in the control of the authorized representative until the authorized representative is bound by the order of the agency.
(5)An authorized representative who is a trustee shall only be bound to the extent that the final order specifically finds that the trust assets of a trust fund are subject to claim by the agency.
(6)If the authorized representative does not comply with the demand, the agency may file with the probate court a motion to require the authorized representative to comply. If the authorized representative is a conservator or guardian appointed under ORS chapter 125, the motion shall be filed in that proceeding. The motion shall be accompanied by an affidavit stating that the order is final, that demand has been made on the authorized representative and that the order has not been complied with.
(7)The authorized representative may object to the motion only on grounds that the order is not final, that the order is not binding on the authorized representative as provided in this section or that all required payments have been made. The objection must be by affidavit.
(8)If the authorized representative objects by affidavit, the court shall hear the motion. If the court determines that the ability-to-pay order is final and binding on the authorized representative and that all required payments have not been made, the court shall order the authorized representative to comply with the ability-to-pay order.
(9)If the authorized representative fails to object by affidavit within 15 days of the filing of the motion, the court shall order the authorized representative to comply with the order. An authorized representative who willfully fails or refuses to comply may be found in contempt of court and may be held personally responsible.
(10)Nothing in this section shall affect the requirement that the agency issue a new order in accordance with ORS 179.640 (Determination of ability to pay) (5) if financial circumstances have changed. [1973 c.806 §9a; 1989 c.348 §4; 1995 c.664 §90; 1999 c.159 §3; 2001 c.487 §4; 2009 c.595 §150; 2013 c.36 §60]
Attorney General Opinions
Liability for cost of care of person in state institution, (1975) Vol 37, p 357