In the Matter of the Estate of Mason ( 2023 )

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SJC-13439
IN THE MATTER OF THE ESTATE OF FRANCES R. MASON.
Barnstable. September 13, 2023. - December 13, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Medicaid. MassHealth. Lien. Executor and Administrator,
Claims against estate. Uniform Probate Code. Repose,
Statute of. Statute, Construction, Retroactive
application.
Petition filed in the Barnstable Division of the Probate
and Family Court Department on June 7, 2017.
A motion to strike was heard by Angela M. Ordonez, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Christine Fimognari, Assistant Attorney General, for
Executive Office of Health and Human Services.
Matthew J. Dupuy for the petitioner.
Patricia Keane Martin, Clarence D. Richardson, Jr., & C.
Alex Hahn, for the Massachusetts Chapter of the National Academy
of Elder Law Attorneys, amicus curiae, submitted a brief.
Brian E. Barreira, pro se, amicus curiae, submitted a
brief.
2
WENDLANDT, J. Through a cooperative Federal and State
regulatory scheme, eligible Massachusetts residents (members)
may have their medical costs covered by the State-administered
health insurance program for low-income residents (MassHealth),
which is overseen by the Executive Office of Health and Human
Services (EOHHS).1 Under this regulatory scheme, MassHealth is
prohibited from recovering Medicaid benefits it has paid except
in the case of certain categories of members. And even with
regard to these members, MassHealth generally is prohibited from
commencing recoupment efforts before a member's death and must
seek recovery only from the member's probate estate.
In limited circumstances, however, Federal and State
statutes permit MassHealth to act during the member's lifetime.
Relevant here, 42 U.S.C. § 1396p and G. L. c. 118E, § 34, permit
MassHealth to impose a lien prior to a member's death (TEFRA
lien2) against the member's property if the member is permanently
institutionalized, having been admitted to a medical facility
from which she is not reasonably expected to return home. If,
while living in the facility, the member sells the property
against which MassHealth has imposed a TEFRA lien, MassHealth
1 The parties refer to the State Medicaid program and EOHHS
as "MassHealth." For consistency, we do the same.
2 We refer to these liens by the name of the Federal act
that permits them, the Tax Equity and Fiscal Responsibility Act
of 1982 (TEFRA), Pub. L. No. 97–248, 96 Stat. 324 (1982).
3
may seek to recover Medicaid benefits paid, so long as
protections for certain of the member's relatives are not
applicable. See G. L. c. 118E, § 31 (d). In other words, in
this limited circumstance, MassHealth need not wait until the
member's death to recoup Medicaid benefits paid.
This case presents the question whether, in Massachusetts,
the Legislature has limited the State's implementation of the
TEFRA lien program to allow enforcement of a TEFRA lien only if
the encumbered property is sold during the member's lifetime.
We conclude that it has.
Separate from MassHealth's authority to enforce a TEFRA
lien during a member's lifetime, MassHealth may assert a timely
claim against a member's probate estate to seek to recover
Medicaid expenses after the member's death. The timing of such
a claim presents the second question we must address in this
case: whether the three-year statute of repose of the
Massachusetts Uniform Probate Code (MUPC), G. L. c. 190B, § 3-
108, applies retroactively to bar MassHealth's claim to recoup
Medicaid benefits paid for the medical care of a member who died
prior to the effective date of the MUPC. We conclude that it
does not.
Applying these conclusions in the present matter, we affirm
the order of the Probate and Family Court judge insofar as it
struck MassHealth's lien against the home of the decedent,
4
Frances R. Mason, who was permanently institutionalized in a
medical facility in the last months of her life, and we reverse
the order insofar as it dismissed MassHealth's claim against her
estate.3
1. Factual background. The relevant facts are undisputed.
From January to August 2008, MassHealth provided Medicaid funds
to cover Mason's care in a residential nursing facility. On
May 2, 2008, MassHealth, having determined that Mason would be
institutionalized permanently, recorded a TEFRA lien against
Mason's home in South Yarmouth (property). As expected, Mason
lived her remaining days in the facility, and on August 18,
2008, Mason died testate,4 at the age of eighty-eight. The
property was not sold during Mason's lifetime while it was
subject to the TEFRA lien.
2. Procedural history. In June 2017, nearly nine years
after Mason's death, Maryann Fells (petitioner), the named
executor of Mason's will, filed a petition in the Probate and
Family Court to open formal probate proceedings to settle
Mason's estate.5 A personal representative was appointed, and
3 We acknowledge the briefs of amici curiae Massachusetts
Chapter of the National Academy of Elder Law Attorneys and Brian
E. Barreira.
4 Mason executed a will in 2005.
5 See G. L. c. 190B, § 3-401 ("A formal testacy proceeding
may be commenced by an interested person filing a petition as
5
the personal representative's bond was approved on July 20,
2018.
The petition and Mason's death certificate were sent to
MassHealth.6 On August 13, 2018, MassHealth filed a notice of
claim to recover the Medicaid benefits paid for Mason's care.7
On September 27, 2021, the property was sold, and the proceeds
of the sale were held in escrow.
The personal representative did not object to MassHealth's
claim;8 however, the petitioner filed a motion to strike both
MassHealth's lien against the property and MassHealth's claim
against Mason's estate.9 On March 4, 2022, the judge allowed the
described in [§] 3–402 [a] in which that person requests that
the court enter an order probating a will . . .").
6 See G. L. c. 118E, § 32 (a) ("a petition for admission to
probate of a decedent's will or for administration of a
decedent's estate shall include a sworn statement that copies of
said petition and death certificate have been sent to"
MassHealth).
7 See G. L. c. 118E, § 32 (b) (permitting MassHealth to
"present claims against a decedent's estate . . . within four
months after approval of the official bond of the personal
representative").
8 See G. L. c. 118E, § 32 (d) (personal representative must
respond to MassHealth's claim within sixty days).
9 On appeal, the petitioner asserts that she, along with
Nicole Fells, filed the motion; however, the record indicates
only that Nicole, to whom a Probate and Family Court judge
referred as a "party-in-interest" in Mason's estate, was named
in the filing. MassHealth does not raise any issues with the
designation of the petitioner as the appellee, and nothing in
our opinion turns on the distinction.
6
motion. She concluded that the TEFRA lien against the property
became invalid upon Mason's death because the property had not
been sold "during her lifetime," which the judge determined was
required to trigger MassHealth's right to enforce the lien. In
addition, the judge ruled that, although Mason died before the
effective date of the MUPC, MassHealth's claim against Mason's
estate was barred by the MUPC's three-year statute of repose,
G. L. c. 190B, § 3-108 (4). MassHealth timely appealed. We
transferred the case to this court on our own motion.
3. Discussion. This case presents two questions of
statutory construction, which we review de novo. Conservation
Comm'n of Norton v. Pesa, 488 Mass. 325, 331 (2021).10 First, we
address whether a TEFRA lien that has been imposed against a
permanently institutionalized member's home is enforceable after
the member's death. Second, we consider whether the MUPC's
three-year statute of repose applies to MassHealth's claim for
recovery of Medicaid benefits paid on behalf of a member who
died prior to the MUPC's effective date.
10A final decree in this matter has not been entered in the
Probate and Family Court; nonetheless, this appeal properly is
before us. See, e.g., Marcus v. Pearce Woolen Mills, Inc., 353
Mass. 483, 484-485 (1968) (creditor's appeal of order to vacate
creditor's appearance in opposition to allowance of will
immediately appealable despite lack of finality in settlement of
estate).
7
In construing a statute, we begin with its plain language.
Metcalf v. BSC Group, Inc., 492 Mass. 676, 681 (2023).
"[A] statute must be interpreted according to the intent of
the Legislature ascertained from all its words construed by
the ordinary and approved usage of the language, considered
in connection with the cause of its enactment, the mischief
or imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers
may be effectuated" (citation omitted).
Harvard Crimson, Inc. v. President & Fellows of Harvard College,
445 Mass. 745, 749 (2006). "Ordinarily, where the language of a
statute is plain and unambiguous, it is conclusive as to
legislative intent." Sharris v. Commonwealth, 480 Mass. 586,
594 (2018), quoting Thurdin v. SEI Boston, LLC, 452 Mass. 436,
444 (2008). "Where the statutory language is not conclusive, we
may 'turn to extrinsic sources, including the legislative
history and other statutes, for assistance in our
interpretation.'" HSBC Bank USA, N.A. v. Morris, 490 Mass. 322,
332-333 (2022), quoting Chandler v. County Comm'rs of Nantucket
County, 437 Mass. 430, 435 (2002). We "look to the statutory
scheme as a whole . . . so as to produce an internal consistency
within the statute" (quotations and citations omitted).
Plymouth Retirement Bd. v. Contributory Retirement Appeal Bd.,
483 Mass. 600, 605 (2019).
We construe "[a] properly promulgated regulation . . . in
the same manner as a statute." Harvard Crimson, Inc., 445 Mass.
at 749. Where an agency construes a statute, "[w]e give
8
deference to agency interpretations in areas where the
Legislature has delegated decision-making authority to the
agency when the 'interpretation is not contrary to the plain
language of the statutes or their underlying purposes.'"
Metcalf, 492 Mass. at 681, quoting Mullally v. Waste Mgt. of
Mass., Inc., 452 Mass. 526, 533 (2008). However, deference is
"not abdication, and this court will not hesitate to overrule
agency interpretations of statutes or rules when those
interpretations are arbitrary or unreasonable." Armstrong v.
Secretary of Energy & Envtl. Affairs, 490 Mass. 243, 247 (2022),
quoting Moot v. Department of Envtl. Protection, 448 Mass. 340,
346 (2007), S.C., 456 Mass. 309 (2010).
a. Enforcement of a TEFRA lien after the member's death.
With these principles in mind, we turn to the first question on
appeal: whether, having placed a TEFRA lien against the
property of a member who is permanently institutionalized,
MassHealth may enforce the TEFRA lien after the member's death.
Because TEFRA liens are creatures of Federal and State statutes,
our analysis begins with a review of these statutes. See,
e.g., City Elec. Supply Co. v. Arch Ins. Co., 481 Mass. 784(2019) (analyzing statute governing mechanic's liens to resolve
dispute involving mechanic's lien); Drummer Boy Homes Ass'n v.
Britton, 474 Mass. 17 (2016) (analyzing statute governing
condominium liens to resolve dispute involving condominium
9
lien); Ropes & Gray LLP v. Jalbert, 454 Mass. 407 (2009)
(analyzing statute governing attorney's liens to resolve dispute
involving attorney's lien); Luchini v. Commissioner of Revenue,
436 Mass. 403 (2002) (analyzing statute governing tax lien to
resolve dispute involving tax lien).
i. Statutory framework. The Federal Medicaid Act11
"created a cooperative State and Federal program to provide
medical assistance to individuals who cannot afford to pay for
their own medical costs." Daley v. Secretary of the Executive
Office of Health & Human Servs., 477 Mass. 188, 189 (2017). The
act, and regulations promogulated under it by the United States
Department of Health and Human Services (HHS), set parameters
that States participating in Medicaid must follow. See Dermody
v. Executive Office of Health & Human Servs., 491 Mass. 223, 225
(2023), petition for cert. filed, U.S. Supreme Ct., No. 22-957
(Mar. 31, 2023). Within these parameters, Federal law gives
States flexibility to design and operate their individual State
plans. See Matter of the Estate of Kendall, 486 Mass. 522, 533
(2020) (Kendall).
11 The Medicaid Act was enacted as Title XIX of the Social
Security Act of 1965 and codified at 42 U.S.C. §§ 1396 et seq.
10
The Massachusetts Medicaid statutes, G. L. c. 118E,12
expressly require MassHealth to operate "pursuant to and in
conformity with the provisions of [the Medicaid Act]." G. L.
c. 118E, § 9. See Daley, 477 Mass. at 199, quoting Cruz v.
Commissioner of Pub. Welfare, 395 Mass. 107, 112 (1985) ("When
there is a conflict between State and Federal regulations, the
Legislature intended that [MassHealth] comply with the Federal
rule"); Haley v. Commissioner of Pub. Welfare, 394 Mass. 466,
472 (1985) (Legislature "intended the [State Medicaid] benefits
program to comply with the Federal statutory and regulatory
scheme").
To be eligible for Medicaid benefits, applicants generally
must show that their income and assets fall below a defined
level, thereby reserving the program's resources for those in
most need. See G. L. c. 118E, § 9A (2) (d); 130 Code Mass.
Regs. § 520.003(A) (2019) (MassHealth eligibility requires that
"[t]he total value of countable assets owned by or available to"
applicant may not exceed defined threshold). See also 42 U.S.C.
§ 1396a(a)(10) (prescribing eligibility rules for State plans).
Applicants are expected to "deplete their own resources" before
MassHealth will pay their medical expenses. Lebow v.
12Massachusetts's Medicaid plan first was enacted in 1969,
see St. 1969, c. 800, and was restructured in 1993, see St.
1993, c. 161.
11
Commissioner of the Div. of Med. Assistance, 433 Mass. 171, 172
(2001). But pertinent to the present matter, an applicant's
ownership interest in his or her primary residence is not
included in the eligibility calculus unless the equity interest
exceeds a threshold amount. See 130 Code Mass. Regs.
§ 520.008(A) (2013). See also Office of Assistant Secretary for
Policy and Evaluation, United States Department of Health and
Human Services, Medicaid Treatment of the Home: Determining
Eligibility and Repayment for Long-Term Care, at 1-2 (Apr.
2005).
ii. Imposition of TEFRA liens. Because an individual's
ownership interest in his or her home generally is not counted
for purposes of determining eligibility for Medicaid coverage,
"[i]t is . . . possible . . . for an elderly individual who
anticipates needing nursing home care to give his[ or ]her home
to a family member or friend without fear of losing or being
denied [M]edicaid eligibility . . . assur[ing] that the home
will not be . . . subject to any recovery action." S. Rep. No.
97-494, at 38 (1982). In part to address this potential avenue
to thwart a State plan's efforts to recover Medicaid benefits
paid, Congress passed the Tax Equity and Fiscal Responsibility
of Act of 1982 (TEFRA), codified in relevant part at 42 U.S.C.
§ 1396p(a)(1)(B).
12
Specifically, TEFRA authorizes a State Medicaid agency to
place a lien13 against the real property of a permanently
institutionalized member, defined as an eligible individual
(1) who is an inpatient of a medical institution; and (2) whom
the State Medicaid agency has determined, after notice and an
opportunity for hearing in accordance with the State's
established administrative procedures, "cannot reasonably be
expected to be discharged from the medical institution and to
return home."14 42 U.S.C. § 1396p(a)(1). See 42 C.F.R.
§ 433.36(g)(2). If, contrary to expectations, the permanently
institutionalized member is discharged from the medical
institution and returns home, a TEFRA lien "shall dissolve." 42
U.S.C. § 1396p(a)(3). See 42 C.F.R. § 433.36(g)(4).
13A lien "is a claim or charge on the property of an owner
as security for the payment of a debt or obligation owed." M.
Pill, Real Estate Law § 11:1 (2022-2023 ed. 2022) (Pill).
Black's Law Dictionary 1107 (11th ed. 2019) (lien is "[a] legal
right or interest that a creditor has in another's property,
lasting usu[ally] until a debt or duty that it secures is
satisfied"). For a TEFRA lien, the "debt" comprises the
Medicaid benefits paid on behalf of a member. See G. L.
c. 118E, § 34 (TEFRA lien secures "Medicaid benefits paid or to
be paid on [a member's] behalf").
14A State Medicaid agency's ability to impose a TEFRA lien
is circumscribed further to protect certain family members. See
42 U.S.C. § 1396p(a)(2) (prohibiting imposition of TEFRA lien
against individual's home while individual's spouse; child under
age twenty-one or blind or disabled child of any age; or sibling
with equity interest in home who was residing there for at least
one year immediately before date of individual's admission to
medical institution is "lawfully residing" in home). See also
42 C.F.R. § 433.36(g)(3).
13
Significantly, TEFRA liens comprise an exception to the Medicaid
Act's general prohibition barring State Medicaid agencies from
imposing a lien against the property of an individual "prior to
his death on account of medical assistance paid or to be paid on
his behalf under the State plan." 42 U.S.C. § 1396p(a)(1).
The Medicaid Act provides that States are not required to
use TEFRA liens as part of their efforts to recover Medicaid
benefits paid.15 See 42 U.S.C. § 1396p(a)(1) (setting forth
conditions pursuant to which State plan "may" impose TEFRA
lien); 42 U.S.C. § 1396p(b)(1)(A) (providing that States shall
seek recovery of medical assistance paid on behalf of individual
either "from the individual's estate or upon sale of the
[encumbered] property" [emphasis added]). See also Office of
Assistant Secretary for Policy and Evaluation, United States
Department of Health and Human Services, Medicaid Liens, at 10
(Apr. 2005) (HHS Policy Brief No. 4) (surveys conducted in late
1990s indicated that eighteen of forty-six reporting States
employed TEFRA liens).16
15Because the Medicaid Act does not require States to
impose TEFRA liens, MassHealth's contention that the Medicaid
Act requires State agencies to enforce TEFRA liens after a
member's death is unfounded.
16Agency policy briefs "do not carry the force of
regulations and are not entitled to the deference that we give
to regulations that reflect an agency's interpretation of a
statute it is obliged to enforce." Daley v. Secretary of the
Executive Office of Health & Human Servs., 477 Mass. 188, 200
14
In Massachusetts, the Legislature has codified the general
prohibition against imposing liens during a member's lifetime
other than as expressly authorized by the Medicaid Act;
accordingly, it permits MassHealth to impose TEFRA liens. See
G. L. c. 118E, § 34 ("No lien or encumbrance of any kind except
as permitted by the Secretary [of HHS], shall be required from
or imposed against the property of any individual prior to his
death because of Medicaid benefits paid or to be paid on his
behalf . . ."); 130 Code Mass. Regs. § 515.012(A) (2023) ("A
real estate lien enables . . . MassHealth . . . to recover the
cost of medical benefits paid or to be paid on behalf of a
member. Before the death of a member, . . . MassHealth . . .
will place a lien against any property in which the member has a
legal interest, subject to" member being permanently
institutionalized and inapplicability of protections for certain
family members). And because the Medicaid Act requires that a
TEFRA lien dissolve upon the discharge of the individual from
the medical facility and return home, TEFRA liens in
Massachusetts dissolve upon that occurrence. See 130 Code Mass.
Regs. § 515.012(E) (MassHealth "will discharge a [TEFRA] lien
(2017). Instead, "we consider such guidance carefully for its
persuasive power." Id., citing Wos v. E.M.A. ex rel. Johnson,
568 U.S. 627, 643 (2013).
15
. . . if the member is released from the medical institution and
returns home").
MassHealth maintains that G. L. c. 118E, § 34, which, as
discussed supra, governs the imposition and dissolution of TEFRA
liens in Massachusetts, also governs the scope of MassHealth's
authority to enforce a TEFRA lien; in particular, MassHealth
asserts that, because § 34 does not limit enforcement of TEFRA
liens (other than requiring dissolution upon the return home of
the permanently institutionalized member), TEFRA liens, like
liens generally,17 run with the encumbered property until the
underlying debt is satisfied, allowing MassHealth to enforce the
lien even after the member's death.
We disagree. While § 34 sets forth the circumstances
pursuant to which a TEFRA lien may be imposed and one event
pursuant to which the lien shall dissolve, the enforcement
17In general, a lien encumbers the underlying property
until the obligation it secures is satisfied. See generally,
L.A. Jones, The Law of Liens (3d ed. 1914). See also Black's
Law Dictionary 1107 (11th ed. 2019) (liens last usually "until a
debt or duty that it secures is satisfied"). Additionally, "a
lien on real property [generally] runs with the land and is
enforceable against subsequent purchasers." Permanent Mission
of India to the United Nations v. New York, 551 U.S. 193, 198
(2007). See Restatement of Property § 540 (1944) ("a lien is
enforceable against the successors in title or possession").
See also Pill, supra at § 11:1 (lien "usually continues even
though the ownership of the property is transferred to a third
person who does not owe the debt"). TEFRA liens, however, are
governed by the Federal and State statutes pursuant to which
they are permitted.
16
authority of MassHealth is delineated expressly in the recovery
provisions of the Medicaid Act and the cognate State provisions.
See 42 U.S.C. § 1396p(b); G. L. c. 118E, § 31. In the face of
these express provisions, to which we now turn, MassHealth's
reliance on § 34 and general principles governing real estate
liens is misplaced.
iii. Estate recovery. Prior to 1993, when Congress
enacted a recovery mandate for States participating in the
Medicaid program, the Medicaid Act did not require State
Medicaid plans to recoup Medicaid benefits paid. See Pub. L.
No. 97-248, § 132(b), 96 Stat. 370 (1982) (setting forth that
State Medicaid recovery "may be made"). In 1993, however,
Congress conditioned Federal funding on the States' adoption of
estate recovery programs designed, inter alia, to attempt to
recoup the costs of Medicaid benefits paid for the care of
certain categories of members, including permanently
institutionalized members. See Omnibus Budget Reconciliation
Act of 1993 (OBRA '93), Pub. L. No. 103-66, Title XIII, § 13612,
107 Stat. 627 (1993) (codified at 42 U.S.C. § 1396p[b][1]).
Massachusetts complies with this requirement, allowing
MassHealth to recover Medicaid assistance paid on behalf of a
permanently institutionalized member from, inter alia, the
17
member's estate.18 See G. L. c. 118E, § 31 (a) (1), (b) (1)
(prohibiting MassHealth from recovering Medicaid benefits paid
except "[f]rom the estate of an individual . . . who was an
inpatient in a nursing facility or other medical institution
when he or she received such assistance"); 130 Code Mass. Regs.
§ 515.011 (2023).
Under the Medicaid Act, however, a State plan's recovery
efforts are strictly circumscribed; tellingly, in detailing the
conditions that permit recovery, the act starts with language of
prohibition. See 42 U.S.C. § 1396p(b)(1) ("No adjustment or
recovery of any medical assistance correctly paid on behalf of
an individual under the State plan may be made, except . . .").
Generally, a State must wait until the individual's death to
recoup Medicaid benefits paid, at which time recovery is
permitted from the decedent's estate subject to certain
additional protections. See 42 U.S.C. § 1396p(b).
In Massachusetts, as the Medicaid Act requires, the
Legislature carefully circumscribes MassHealth's authority to
recoup Medicaid benefits paid, and generally prohibits
18The Legislature has authorized Medicaid estate recovery
since 1969. See St. 1969, c. 800, § 1 ("There shall be no
adjustment or recovery of medical assistance correctly paid,
except from the estate of an individual who was sixty-five years
of age or older . . ."). After the passage of OBRA '93, the
Legislature reorganized and expanded the estate recovery
program. See St. 1993, c. 161; St. 1995, c. 38, § 133; St.
1997, c. 43, §§ 94-95.
18
MassHealth from recovering Medicaid expenditures until after the
member's death.19 See G. L. c. 118E, § 31 (a), (b) ("There shall
be no adjustment or recovery of medical assistance correctly
paid except . . . [f]rom the estate . . ."); 130 Code Mass.
Regs. § 515.011(A)(1) (MassHealth "will recover the amount of
payment for medical benefits correctly paid from the estate of a
deceased member"). This prohibition against predeath recovery
efforts by MassHealth generally also applies to a member who was
a "[p]ermanently [i]nstitutionalized . . . inpatient in a
nursing facility or other medical institution when he or she
received such assistance." G. L. c. 118E, § 31 (b) (1). See
130 Code Mass. Regs. § 515.011(A)(1)(b).
iv. Enforcing a TEFRA lien. One exception to this general
prohibition against predeath recovery concerns a State agency's
ability to recover Medicaid expenses incurred on behalf of a
permanently institutionalized member whose real property is
subject to a TEFRA lien. For such a member, the Medicaid Act
gives State Medicaid agencies an option; they "shall seek
adjustment or recovery from the individual's estate or upon sale
of the property" (emphasis added). 42 U.S.C. § 1396p(b)(1)(A).
19Consistent with the Medicaid Act, see 42 U.S.C.
§ 1396p(b)(2), G. L. c. 118E, § 31 (b) (3), further provides:
"Any recovery may be made only after the death of the surviving
spouse, if any, and only at a time when he or she has no
surviving child who is under age twenty-one or is blind or
permanently and totally disabled."
19
See 42 C.F.R. § 433.36(h)(1)(ii). Thus, if a State agency
imposes a TEFRA lien against a permanently institutionalized
member's property, which the member thereafter sells, the agency
need not wait until the member's death to recoup its Medicaid
expenditures; it may enforce a TEFRA lien upon the sale of the
encumbered property.20 Alternatively, the State agency may
attempt to recoup its Medicaid expenses following the member's
death, from the member's estate. See 42 C.F.R. § 433.36(h)
(agency "may make an adjustment or recover funds . . . [f]rom
the estate or upon sale of the property subject to a [TEFRA]
lien"); State Medicaid Manual, Health Care Financing
Administration Pub. No. 45-3, Transmittal 75, § 3810(A)(1) (Jan.
2001) ("Recoveries must be made from the individual's estate
(after death) or from the proceeds of the sale of the property
on which a lien has been placed").
Because the Medicaid Act specifies that a State agency may
enforce a TEFRA lien "upon sale" of the encumbered property, see
42 U.S.C. § 1396p(b)(1)(A), the Medicaid Act permits a State to
allow a State agency to enforce the lien either before or after
the member's death -- whenever the property is sold. HHS has
20As discussed in part 3.a.ii, supra, the TEFRA lien
dissolves if the permanently institutionalized member is
discharged and returns home. See G. L. c. 118E, § 34; 130 Code
Mass. Regs. § 515.012(E).
20
concluded that a TEFRA lien generally may be enforced after the
member's death, stating:
"If the home owner dies with a TEFRA lien still on the
property, Medicaid recovery occurs as part of the estate
settlement process. If the property is conferred as part
of the recipient's estate to someone without a protected
interest in it (e.g., an adult child), the transferee must
pay off Medicaid's claim in order to receive a clear title
to the property" (emphasis added).
HHS Policy Brief No. 4, supra at 7. Thus, under the Medicaid
Act, unless the permanently institutionalized member is
discharged from the medical facility and returns home (at which
time the TEFRA lien shall dissolve), a State may opt to allow a
TEFRA lien to run with the encumbered property until the
underlying debt it secures is paid. The question in this case
is whether the Legislature has opted to take advantage of this
available option.
A. Massachusetts's lifetime sale requirement. In
Massachusetts, as permitted by the Medicaid Act, the Legislature
has authorized MassHealth not only to attempt to recover
Medicaid expenditures from the estate of a permanently
institutionalized member, but also to commence recovery efforts
prior to such a member's death under certain conditions.
Specifically, G. L. c. 118E, § 31 (d), provides that MassHealth
is "also authorized during [the member's] lifetime to recover
all assistance correctly provided . . . if property against
21
which [MassHealth] has a lien or encumbrance under [§] 34 is
sold" (emphases added).
Importantly, unlike the Medicaid Act, under which a State
agency's authority to enforce a TEFRA lien can be triggered
"upon sale" of the encumbered property regardless of whether
that sale occurs before or after the member's death, see 42
U.S.C. § 1396p(b)(1)(A), in Massachusetts, the Legislature has
narrowed MassHealth's enforcement authority. Specifically,
under the plain language of G. L. c. 118E, § 31 (d),
MassHealth's authority to enforce the lien arises "during the
[member's] lifetime" if the encumbered property "is sold."21
This plain language construction is buttressed by
MassHealth's regulation in effect at the time MassHealth placed
a TEFRA lien against Mason's home, which expressly reflected
that MassHealth's authority to enforce a TEFRA lien arose during
the member's lifetime. See 130 Code Mass. Regs. § 515.012(B)
21Section 31 (d) further provides that the subsection
"shall not limit [MassHealth's] ability to recover . . . as
otherwise provided under any under general or special law."
MassHealth contends that this savings clause permits it to
enforce a TEFRA lien after a member's death. As we discussed in
part 3.a.ii, supra, however, G. L. c. 118E, § 34, permits
MassHealth to impose a TEFRA lien and sets forth a condition
requiring the lien to dissolve. By contrast, MassHealth's
authority to enforce TEFRA liens is delineated expressly in
§ 31 (d). Accordingly, § 34 is not a "general . . . law" that
"otherwise provide[s]" MassHealth an "ability to recover"
following a member's death. G. L. c. 118E, § 31 (d).
22
(1997) ("If property against which [MassHealth] has placed a
lien under 130 [Code Mass. Regs. §] 515.012[A] is sold during
the member's lifetime, [MassHealth] may recover all payment for
services provided on or after April 1, 1995" [emphasis added]).22
And while not dispositive, see note 16, supra, HHS has
concluded:
"In Massachusetts, TEFRA liens . . . give the State
authority to recover Medicaid payments for a member's long-
term care expenses if his or her property is sold while the
member is alive. . . .
". . .
"If there was a [TEFRA] lien on the member's real property,
[MassHealth] must release it after they have received
notification of the member's death and a copy of the death
certificate" (emphasis added).
Office of Assistant Secretary for Policy and Evaluation, United
States Department of Health and Human Services, Medicaid Liens
22After Mason had died, after her estate had been submitted
to probate, and after MassHealth had already filed its notice of
claim, MassHealth amended the regulation to omit the phrase
"during the member's lifetime." See 130 Code Mass. Regs.
§ 515.012(B) (2021). MassHealth's authority is limited by G. L.
c. 118E, § 31 (d); to the extent MassHealth purports to expand
its authority through the amended regulation, it cannot do so.
See Armstrong v. Secretary of Energy & Envtl. Affairs, 490 Mass.
243, 247 (2022) ("When an agency acts beyond the scope of
authority conferred to it by statute, its actions are invalid
and ultra vires"); Atlanticare Med. Ctr. v. Commissioner of the
Div. of Med. Assistance, 439 Mass. 1, 14 (2003) ("The division
has no inherent authority to issue regulations . . . or
promulgate rules that conflict with the statutes or exceed the
authority conferred by the statutes by which the agency was
created" [quotations and citation omitted]).
23
and Estate Recovery in Massachusetts, at 3, 13 (Apr. 2005) (HHS
Policy Brief No. 5).23
We reject MassHealth's assertion that while G. L. c. 118E,
§ 31 (d), governs when MassHealth may enforce a TEFRA lien
during a member's lifetime, the statute's silence as to whether
a TEFRA lien also may be enforced as part of the estate recovery
program implicitly permits such recovery. Such a construction
23Contrary to MassHealth's assertion that the policy brief
is unsupported, the policy brief's conclusions apparently were
based on information provided by MassHealth. See HHS Policy
Brief No. 5, at 2 n.4 (noting that information for policy brief
was "obtained from two operational divisions of MassHealth, the
Taunton MassHealth Enrollment Center and the MassHealth Estate
Recovery Unit," and that "[a]dditional supporting data and
documentation were provided by administrative units within the
Office of MassHealth –- the Policy and Implementation Unit,
Information Systems, Publications, and the Division of Specialty
Programs"). This information is consistent with an audit
report, "Office of Medicaid (MassHealth) -- Review of Estate
Recovery," published by the Office of the State Auditor on June
28, 2021. In a paragraph concerning TEFRA liens, also referred
to as "pre-death" or "living liens," the report stated, "After a
member dies, MassHealth may file a claim in probate court to
recover the member's paid Medicaid costs" (emphasis added). It
says nothing about enforcing a TEFRA lien after the member's
death. Similarly, a form notice provided by MassHealth to a
permanently institutionalized member against whose home a TEFRA
lien is imposed, titled "Notice of Intent to Place a Lien,"
fails to notify the member that MassHealth may enforce the lien
after the member's death. Instead, consistent with G. L.
c. 118E, § 31 (d), it provides: "If the property is sold during
your lifetime, you must repay MassHealth from your share of the
proceeds for the cost of all medical services provided on or
after April 1, 1995" (emphasis added). In fact, in its brief,
MassHealth acknowledges its long-standing "practice" to enforce
a TEFRA lien "if the property is sold during the member's
lifetime," and instead to recover from the "assets -- commonly
real property -- of the probate estate[]" following the member's
death.
24
is at odds with the Medicaid Act and cognate Massachusetts
statutes that narrowly circumscribe the ability of MassHealth to
recoup its Medicaid expenses. As discussed supra, both the
Medicaid Act and Massachusetts's statutory recovery schemes are
crafted in restrictive terms, generally prohibiting MassHealth
from seeking to recover Medicaid benefits paid except from
certain individuals and pursuant to carefully delineated
circumstances expressly set forth in the statutes. See 42
U.S.C. § 1396p(b)(1) ("No adjustment or recovery . . . may be
made, except . . ."); G. L. c. 118E, § 31 (a), (b) ("There shall
be no adjustment or recovery of medical assistance correctly
paid except . . .").
That structure evinces a legislative intent to cabin
narrowly MassHealth's authority to recover from members,
precluding any means of recovery except as affirmatively
provided. See Department of Pub. Welfare v. Anderson, 377 Mass.
23, 27 n.3 (1979) ("The primary purpose of both the Federal and
State statutes is to bar recovery . . . . In both statutes, the
clause permitting recovery from the estate . . . appears as an
exception and therefore should be construed narrowly").24 In
24Anderson concerned a prior version of the Massachusetts
estate recovery statute; however, the structure of the prior
statute was, in relevant respects, identical to the current
statute. See G. L. c. 118E, § 16, as inserted by St. 1969,
c. 800, § 1, repealed and replaced by St. 1993, c. 161, § 17
25
light of the statutory scheme's restrictive structure, and
absent a provision affirmatively authorizing MassHealth to
enforce a TEFRA lien after a member's death, "[w]e will not read
into the statute a provision which the Legislature did not see
fit to put there" (quotation and citation omitted).25 Chin v.
("There shall be no adjustment or recovery of medical assistance
correctly paid, except from the estate . . .").
25Relying on the legislative history of G. L. c. 118E,
§ 31, MassHealth maintains that the Legislature's use of the
term "also" and reference to the date "April 1, 1995," in
§ 31 (d) signal its intent to allow MassHealth to enforce the
TEFRA lien both during the member's life and after the member's
death. MassHealth's argument ostensibly is founded on the 1995
amendment to § 31 (c), which defined the recoverable estate as
the probate estate, see St. 1995, c. 38, § 133. MassHealth
claims that the 1995 amendment limiting the definition of
"estate" to the probate estate created confusion as to
MassHealth's ability to enforce a TEFRA lien during a member's
life. According to MassHealth, the Legislature added § 31 (d)
in 1997 to clarify that the TEFRA lien "also" may be enforceable
during life. See St. 1997, c. 43, § 94. But, MassHealth
further contends, the Legislature did not mean to limit
MassHealth's preexisting ability to enforce TEFRA liens "also"
after a member's death pursuant to its authority under § 34.
As discussed in part 3.a.ii, supra, § 34 sets forth terms
concerning the imposition and dissolution of a TEFRA lien, not
the enforcement of TEFRA liens. We decline to adopt
MassHealth's posited inference as to the Legislature's intent to
preserve its purported ability to enforce a TEFRA lien after a
member's death under § 34 in view of, inter alia, the plain
language of § 31 (d), as well as the general prohibition on
recovery efforts except as expressly authorized. See Sharris v.
Commonwealth, 480 Mass. 586, 594 (2018) ("where the language of
a statute is plain and unambiguous, it is conclusive as to
legislative intent" [citation omitted]). Indeed, from 1995
until 2021, MassHealth's regulations regarding TEFRA liens
specifically triggered its enforcement authority only upon a
sale during the member's lifetime. See 130 Code Mass. Regs.
§ 502.910(C) (1995) (permitting enforcement of TEFRA lien if
26
Merriot, 470 Mass. 527, 537 (2015). Indeed, such a construction
would be at odds with the Legislature's decision to limit the
scope of MassHealth's authority to enforce TEFRA liens beyond
that required under the Medicaid Act, as evinced by the
Legislature's decision to include the phrase "during [the
member's] lifetime" in the enforcement provision, G. L. c. 118E,
§ 31 (d), rather than mirroring the language of the Federal
statute, see 42 U.S.C. § 1396p(b)(1)(A). See discussion, supra.
Our construction of MassHealth's authority to enforce a
TEFRA lien also finds support in the purpose that gave rise to
the TEFRA lien program, discussed in part 3.a.ii, supra, to
thwart efforts by a permanently institutionalized member to
evade estate recovery by transferring his or her home, which is
usually the member's only significant asset, to a family member.
By expressly limiting MassHealth's authority to enforce a TEFRA
lien to "during [the member's] lifetime," the Legislature
narrowly targeted the estate recovery avoidance tactic that
Congress sought to foreclose. See St. 1997, c. 43, § 94
(enacting G. L. c. 118E, § 31 [d]).
The broad authority MassHealth advocates also runs counter
to the Legislature's decision to limit the scope of the
property "is sold during the recipient's lifetime"); 130 Code
Mass. Regs. § 515.012(B) (1997) (permitting enforcement of TEFRA
lien if property "is sold during the member's lifetime"); 130
Code Mass. Regs. § 515.012(B) (2020) (same).
27
recoverable estate to the "probate" estate.26 See G. L. c. 118E,
§ 31 (c). Significantly, a TEFRA lien may be attached to
ownership interests that may not pass through probate. See 130
Code Mass. Regs. § 515.012(A) (MassHealth "will place a lien
against any property in which the member has a legal interest").
See also A Practical Guide to Estate Planning in Massachusetts,
Nonprobate Transfers § 3.2 (Mass. Cont. Legal Educ. 5th ed.
2022) (identifying ownership interests that pass outside of
probate, such as inter vivos trusts, joint tenancies with rights
of survivorship, and life estates and remainders). A
26Consistent with the restrictive structure of the over-all
statutory scheme, this definition of the recoverable estate
reflects the narrowest scope permissible under 42 U.S.C.
§ 1396p(b)(4). Under the Medicaid Act, a State either may
delineate the recoverable estate as the probate estate "as
defined for purposes of State probate law," or the State may
elect to define the estate more broadly to include
"any other real and personal property and other assets in
which the individual had any legal title or interest at the
time of death (to the extent of such interest), including
such assets conveyed to a survivor, heir, or assign of the
deceased individual through joint tenancy, tenancy in
common, survivorship, life estate, living trust, or other
arrangement."
42 U.S.C. § 1396p(b)(4). In 2003, Massachusetts briefly
expanded the recoverable estate to the broader permissible
definition, before reverting to the narrow probate-only
definition the following year. See St. 2003, c. 26, § 329; St.
2004, c. 149, § 167. This choice, in conjunction with the
restrictive language of G. L. c. 118E, § 31, evinces a
legislative intent to restrict MassHealth's ability to pursue
recovery outside of the probate estate, through other
mechanisms, such as liens.
28
construction that would allow MassHealth to enforce a TEFRA lien
after a member's death would expand the estate against which
MassHealth could recover beyond the probate estate. Such a
construction would be at odds with the legislative decision to
limit estate recovery to the probate estate. See Plymouth
Retirement Bd., 483 Mass. at 605 (in construing statutes, we
"look to the statutory scheme as a whole . . . so as to produce
an internal consistency within the statute" [quotations and
citations omitted]).
Further, a construction that would permit MassHealth to
enforce a TEFRA lien after the member's death contravenes the
Legislature's specific delineation of the relative priorities of
various creditors, including MassHealth, in connection with the
disposition of a probate estate. See G. L. c. 190B, § 3-805 (a)
("If the applicable assets of the estate are insufficient to pay
all claims in full, the personal representative shall make
payment in the following order: . . . [6] debts due to the
division of medical assistance"). If a TEFRA lien survives a
member's death, the lien might upset the MUPC's express priority
of claims provision.27 See Metcalf, 492 Mass. at 681 (we
27The MUPC grants lienholders additional rights beyond
those available to unsecured estate creditors. See G. L.
c. 190B, §§ 3-104, 3-803, 3-809, 3-812, 3-814. See also
Tisbury v. Hutchinson, 338 Mass. 514, 516 (1959) (lien gave
lienholder priority over estate administration expenses and
other estate creditors).
29
interpret statutes "in harmony with prior enactments to give
rise to a consistent body of law" [quotation and citation
omitted]).
B. Limited post-death enforcement authority. Relying on
G. L. c. 118E, § 32 (j), MassHealth contends that the
Legislature broadly contemplated the disposition of TEFRA liens
in connection with the member's estate. Section 32 (j)
provides:
"If the personal representative wishes to sell or transfer
any real property against which [MassHealth] has filed a
lien or claim not yet enforceable because circumstances or
conditions specified in [G. L. c. 118E, § 31,] continue to
exist,[28] [MassHealth] shall release the lien or claim if
the personal representative agrees to (1) either set aside
sufficient assets to satisfy the lien or claim, or to give
bond to [MassHealth] with sufficient surety or sureties and
(2) repay [MassHealth] as soon as the circumstances or
conditions which resulted in the lien or claim not yet
being enforceable no longer exist. Notwithstanding the
foregoing provision or any general or special law to the
contrary, [MassHealth] and the parties to the sale may by
agreement enter into an alternative resolution of
[MassHealth]'s lien or claim." (Emphases added.)
28 Section 32 (j)'s cross reference to the protections for
certain family members addressed in G. L. c. 118E, § 31,
indicates that the "lien" referenced in § 32 (j) is the TEFRA
lien of § 31 (d). In fact, a TEFRA lien is the only type of
lien that MassHealth may impose, except in the case of a court-
ordered lien for improperly paid benefits, in which case no
protections for family members apply. See HHS Policy Brief No.
5, at 7 ("in Massachusetts a lien is only filed while the member
is still alive" and is "never placed . . . once the member has
died"). See also G. L. c. 118E, § 16C (a), as inserted by St.
1990, c. 150, § 300, repealed by St. 1992, c. 133, § 470,
(briefly authorizing postdeath liens).
30
While the interrelationship between § 31 (d) and § 32 (j)
is not a model of clarity, we do not construe the latter as
impliedly expanding the unequivocally narrow authority to
enforce a TEFRA lien expressly set forth in the former. See
Patel v. 7-Eleven, Inc., 489 Mass. 356, 364 (2022), quoting
Whitman v. American Trucking Ass'ns, 531 U.S. 457, 468 (2001)
("the Legislature 'does not, one might say, hide elephants in
mouseholes'").
Instead, we construe § 32 (j) to address only the specific
circumstance in which MassHealth is prohibited under § 31 (d)
from enforcing the lien while the member is living, despite a
lifetime sale of the encumbered property, because of the
continued presence of protected relatives.29 In this
29Under § 31 (d), even after MassHealth's authority to
enforce the lien is triggered by a lifetime sale, "[r]epayment
shall not be required" while certain protected family members
lawfully reside in the property. The protected family members
are:
"(1) a sibling who had been residing in the property for at
least one year immediately prior to the individual being
admitted to a nursing facility or other medical
institution; or (2) a child who (i) had been residing in
the property for at least two years immediately prior to
the parent being admitted to a nursing facility or other
medical institution; and (ii) establishes to the
satisfaction of [MassHealth] that he provided care which
permitted the parent to reside at home during that two year
period rather than in an institution; and (iii) has
lawfully resided in the property on a continuous basis
while the parent has been in the medical institution."
31
circumstance, MassHealth's right to enforce a TEFRA lien ripens
upon the sale of the encumbered property during the member's
lifetime, but the lien is "not yet enforceable."30 G. L.
c. 118E, § 32 (j). If the member then dies, § 32 (j) permits
the lien to be resolved as part of the estate recovery process.31
G. L. c. 118E, § 31 (d). See also 130 Code Mass. Regs.
§ 515.012(D)(1). These restrictions also are embodied in the
Medicaid Act. See 42 U.S.C. § 1396p(b)(2)(B); 42 C.F.R.
§ 433.36(h)(2)(iii).
30If recovery is deferred, § 31 (d) provides several
options for MassHealth to preserve its ability to recover
Medicaid benefits paid:
"If repayment is not yet required because a relative
specified above is still lawfully residing in the property
and the individual wishes to sell the property, the
purchaser shall take possession subject to the lien or
[MassHealth] shall release the lien if the [permanently
institutionalized member] agrees to (1) either set aside
sufficient assets to satisfy the lien or give bond to the
division with sufficient sureties and (2) repay
[MassHealth] as soon as the specified relative is no longer
lawfully residing in the property. Notwithstanding the
foregoing or any general or special law to the contrary,
[MassHealth] and the parties to the sale may by agreement
enter into an alternative resolution of [MassHealth's]
lien."
G. L. c. 118E, § 31 (d). Notably, § 32 (j) gives the personal
representative seeking to sell an encumbered property the same
options previously available to the member. See G. L. c. 118E,
§ 32 (j).
31Section 31 (d) is triggered only if the member sells the
encumbered property during his or her lifetime, and so
presumably the property generally would no longer be in the
member's estate, making the reference in § 32 (j) to a personal
representative's authority to dispose of the encumbered property
nugatory. But that may not be true always. Section 32 (j)
captures this limited circumstance.
32
In such a circumstance, MassHealth may enforce the lien after
the member's death as set forth in § 32 (j).32 Thus, we conclude
that MassHealth generally is not authorized to enforce a TEFRA
lien after the member's death, except in the very narrow
circumstance addressed by § 32 (j), as discussed supra.
b. Applicability of the MUPC time limit. We turn to the
second question on appeal -- whether the "ultimate time limit"
provision of the MUPC, G. L. c. 190B, § 3-108, which became
effective as of 2012, bars MassHealth's claim33 against Mason's
estate. The ultimate time limit provision34 precludes a creditor
32 Fearing that assets available for estate recovery may
dissipate before MassHealth is permitted to open probate, see
G. L. c. 118E, § 32 (i), MassHealth urges us to conclude that it
may enforce a TEFRA lien after a member's death to enhance its
estate recovery efforts. Such policy arguments are best
directed to the Legislature; they do not control our
construction of the statute.
33 As discussed supra, regardless of whether a TEFRA lien is
enforceable after a member's death, MassHealth may recover its
Medicaid expenses by asserting a timely claim against a member's
estate through the estate recovery procedures authorized by
G. L. c. 118E, § 31 (b), and prescribed in § 32 (a)-(i).
34The ultimate time limit provision, G. L. c. 190B, § 3-
108, states, in relevant part:
"No informal probate or appointment proceeding or formal
testacy or appointment proceeding . . . may be commenced
more than [three] years after the decedent's death, except
that: . . . (4) an informal appointment or a formal
testacy or appointment proceeding may be commenced
thereafter if no proceedings relative to the succession or
estate administration has occurred within the [three] year
period after the decedent's death, but the personal
representative shall have no right to possess estate assets
33
from bringing a claim against an estate more than three years
after a decedent's death. See Kendall, 486 Mass. at 527-528.35
However, under the statute in effect when Mason died, MassHealth
has fifty years from the date of Mason's death -- a period of
time that had commenced to run prior to the MUPC's effective
date -- to press its claim. See G. L. c. 193, § 4, inserted by
St. 1951, c. 163, § 1, repealed by St. 2008, c. 521, § 13
(generally requiring administration of estates within fifty
years).36 Thus, the ultimate time limit bars MassHealth's claim
only if it applies retroactively.
Absent a clear indication of legislative intent, a statute
presumptively operates prospectively only. See Sliney v.
Previte, 473 Mass. 283, 288 (2015); Federal Nat'l Mtge. Ass'n v.
as provided in [§] 3–709 beyond that necessary to confirm
title thereto in the successors to the estate and claims
other than expenses of administration shall not be
presented against the estate" (emphases added).
35 Contrary to the petitioner's contention, Kendall does not
address the question whether § 3-108 applies retroactively to
bar claims against the estate of a decedent who died before the
effective date. See generally Kendall, 486 Mass. at 527-528.
The petitioner also mistakenly asserts that Department of Pub.
Welfare v. Anderson, 377 Mass. 23 (1979) -- a case that predates
the MUPC -- controls the outcome here.
36 The petitioner contends that MassHealth surrendered its
claim by waiting nine years after Mason's death, until the
petitioner opened probate proceedings, to assert it. The
petitioner relies on G. L. c. 118E, § 32 (i), which permits
MassHealth to commence probate proceedings itself if no petition
for probate has been filed within one year of the decedent's
death. Section 32 (i) is permissive, however, not mandatory.
34
Nunez, 460 Mass. 511, 516 (2011) ("As a general matter, all
statutes are prospective in their operation . . . and [have] no
retroactive effect" [quotation and citation omitted]). This
presumption applies to statutes of repose such as § 3-108. See
In re Granderson, 214 B.R. 671, 675-676 (Bankr. D. Mass. 1997),
cited with approval by First Fed. Sav. & Loan Ass'n v. Napoleon,
428 Mass. 371, 373-374 (1998) (concluding statute applied only
prospectively because it was statute of repose not statute of
limitations).37
Here, the Legislature expressed its intent that the current
version of the ultimate time limit, G. L. c. 190B, § 3-108, as
amended by St. 2012, c. 140, § 14, apply prospectively.
Specifically, St. 2012, c. 140, § 66 (b), provides:
"If a right is acquired, extinguished or barred upon the
expiration of a prescribed period that has commenced to run
under any other statute before the effective date of this
act, that statute shall continue to apply to the right even
if it has been superseded."38
37 Section 3-108 is a statute of repose. Kendall, 486 Mass.
at 528, 529, 533.
38 The petitioner contends that § 66 (b) applies only to the
trust code, and not to the probate code, because § 66 (a)
addresses the trust code. However, § 66 (b) references the
"act" as a whole, referring clearly to "An Act further
regulating the Probate Code and establishing a trust code"
(emphasis added). Indeed, § 14 of the act amended G. L.
c. 190B, § 3-108.
35
Similarly, St. 2008, c. 521, § 43 (4), which applies to the
MUPC's original enabling act, and thus to the original version
of the ultimate time limit, provides:
"[A]n act done before the effective date [of the MUPC] in
any proceeding and any accrued right is not impaired by
this act. If a right is acquired, extinguished or barred
upon the expiration of a prescribed period of time which
has commenced to run by the provisions of any statute
before the effective date, the provisions shall remain in
force with respect to that right."39
Because Mason died on August 18, 2008, prior to the July 8,
2012, effective date of G. L. c. 190B, § 3-108, pre-MUPC time
limits control MassHealth's claim against her estate. See
Massachusetts Probate Manual, Formal Probate § 4.2.4 (Mass.
Cont. Legal Educ. 5th ed. 2022) ("Estates of decedents dying
before the effective date of the MUPC are not governed by this
time limit for filing"). In other words, following Mason's
39 Notably, the specific preservation language of § 43 (4),
preserving accrued rights that were acquired, extinguished, or
barred upon the expiration of a prescribed period that has
commenced to run before the effective date, controls our
analysis despite the more general provision of the act, St.
2008, c. 521, § 43 (2), which provided that the MUPC applied to
court proceedings commenced after the act's effective date. See
Wing v. Commissioner of Probation, 473 Mass. 368, 373 (2015)
("where statutes deal with the same subject, the more specific
statute controls the more general one"). In addition, § 43 (2)
addressed procedure, while the ultimate time limit provision, as
a statute of repose, addressed substantive rights. See
Bridgwood v. A.J. Wood Constr., Inc., 480 Mass. 349, 352 (2018)
(noting that statutes of limitations are "a procedural defense"
whereas statutes of repose provide "a substantive right to be
free from liability" [quotations and citation omitted]).
36
death in 2008, MassHealth's "right" to make a claim under G. L.
c. 118E, § 32 (b), would be "extinguished or barred upon the
expiration of a prescribed period of time which has commenced to
run by the provisions of [former G. L. c. 193, § 4,] before the
effective date" of the MUPC. Additionally, MassHealth's claim
against Mason's estate is a "right" that "accrued" on Mason's
death in 2008, when it became enforceable.40 See 42 U.S.C.
§ 1396p; G. L. c. 118E, § 31 (b) (1). In sum, MassHealth's
right to file a claim against the decedent's estate falls within
the nonretroactive language of St. 2012, c. 140, § 66 (b), and
St. 2008, c. 521, § 43 (4), and is unaffected by the MUPC's
ultimate time limit.41 Therefore, we conclude that MUPC's three-
year ultimate time limit provision does not extinguish
MassHealth's claim against Mason's estate.42
40 See Black's Law Dictionary 1582 (11th ed. 2019) (defining
"accrued right" as "[a] matured right; a right that is ripe for
enforcement [as through litigation]").
41 Our decision in American Family Life Assur. Co. v.
Parker, 488 Mass. 801 (2022), is not to the contrary. That case
concerned G. L. c. 190B, § 2-804. See id. at 807-810.
42 The petitioner contends that our construction frustrates
the "speedy and efficient" settling of estates. G. L. c. 190B,
§ 1-102. Here, the Legislature expressly has indicated its
intent not to apply the ultimate time limit to claims like
MassHealth's in this case, as set forth supra. Moreover, simply
because "retroactive application of a new statute would
vindicate its purpose more fully . . . is not sufficient to
rebut the presumption against retroactivity" (citation omitted).
Smith v. Massachusetts Bay Transp. Auth., 462 Mass. 370, 377
(2012).
37
4. Conclusion. So much of the order of the Probate and
Family Court judge as dismissed MassHealth's claim against the
decedent's estate is reversed; the order is otherwise affirmed,
and the matter is remanded for further proceedings consistent
with this opinion.
So ordered.