IN THE MATTER OF THE ESTATE OF FRANCES R. MASON.

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

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insurance program for low-income residents (MassHealth), which is overseen by the Executive Office of Health and Human Services (EOHHS). [Note 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 lien [Note 2]) 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 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

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order of the Probate and Family Court judge insofar as it struck MassHealth's lien against the home of the decedent, 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. [Note 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, [Note 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. [Note 5] A personal representative was appointed, and the personal representative's bond was approved on July 20, 2018.

The petition and Mason's death certificate were sent to MassHealth. [Note 6] On August 13, 2018, MassHealth filed a notice of claim to recover the Medicaid benefits paid for Mason's care. [Note 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; [Note 8] however, the petitioner filed a motion to strike both MassHealth's lien against the property and MassHealth's claim against

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Mason's estate. [Note 9] On March 4, 2022, the judge allowed the 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). [Note 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.

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

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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 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 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).

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i. Statutory framework. The Federal Medicaid Act [Note 11] "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).

The Massachusetts Medicaid statutes, G. L. c. 118E, [Note 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. 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

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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).

Specifically, TEFRA authorizes a State Medicaid agency to place a lien [Note 13] 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." [Note 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.

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§ 433.36(g)(4). 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. [Note 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). [Note 16]

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

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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 . . . 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, [Note 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 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

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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 member's estate. [Note 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 MassHealth from recovering Medicaid expenditures until after the member's death. [Note 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

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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). 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. [Note 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 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

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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 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." [Note 21]

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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) (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]). [Note 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 and Estate Recovery in Massachusetts, at 3, 13 (Apr. 2005) (HHS Policy Brief No. 5). [Note 23]

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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 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

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be construed narrowly"). [Note 24] In 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). [Note 25] Chin v. 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

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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 recoverable estate to the "probate" estate. [Note 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 T.E. Bator, T.A. Craig, W.N. Friedler, J.W. Moore, E.V. Moreno, L.M. Neeley, J.W. Roberts, M.J. Simolo, & J.E. Steffensen, Fundamental Testamentary Planning, in A Practical Guide to Estate Planning in Massachusetts § 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 construction that would allow MassHealth to enforce a TEFRA lien after a member's death would

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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. [Note 27] See Metcalf, 492 Mass. at 681 (we 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, [Note 28] [MassHealth] shall release the lien or claim if the personal

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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.)

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. [Note 29] In this 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." [Note 30] G. L. c. 118E, § 32 (j). If the member then dies, § 32 (j) permits the lien to be resolved as part

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of the estate recovery process. [Note 31] In such a circumstance, MassHealth may enforce the lien after the member's death as set forth in § 32 (j). [Note 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 claim [Note 33] against Mason's estate. The ultimate time limit provision [Note 34] precludes a creditor from bringing

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a claim against an estate more than three years after a decedent's death. See Kendall, 486 Mass. at 527-528. [Note 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). [Note 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. 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). [Note 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

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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." [Note 38]

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." [Note 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 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

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estate is a "right" that "accrued" on Mason's death in 2008, when it became enforceable. [Note 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. [Note 41] Therefore, we conclude that MUPC's three-year ultimate time limit provision does not extinguish MassHealth's claim against Mason's estate. [Note 42]

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.