In the Matter of the Estate of Mason

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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, 

 (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, 

, 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., 

 (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., 

, 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,

 (2006).   "Ordinarily, where the language of a

statute is plain and unambiguous, it is conclusive as to

legislative intent."   Sharris v. Commonwealth, 

 (2018), quoting Thurdin v. SEI Boston, LLC, 

 (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, 

,

332-333 (2022), quoting Chandler v. County Comm'rs of Nantucket

County, 

 (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.,

, 605 (2019).

    We construe "[a] properly promulgated regulation . . . in

the same manner as a statute."   Harvard Crimson, Inc., 

.   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., 

 (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, 

, 247 (2022),

quoting Moot v. Department of Envtl. Protection, 

 (2007), S.C., 

 (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., 

(2019) (analyzing statute governing mechanic's liens to resolve

dispute involving mechanic's lien); Drummer Boy Homes Ass'n v.

Britton, 

 (2016) (analyzing statute governing

condominium liens to resolve dispute involving condominium
                                                                       9


lien); Ropes & Gray LLP v. Jalbert, 

 (2009)

(analyzing statute governing attorney's liens to resolve dispute

involving attorney's lien); Luchini v. Commissioner of Revenue,

 (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., 

 (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., 

, 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, 

, 533

(2020) (Kendall).




    11 The Medicaid Act was enacted as Title XIX of the Social
Security Act of 1965 and codified at 

 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, 

, quoting Cruz v.

Commissioner of Pub. Welfare, 

 (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, 

 (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, 

(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 

(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 

(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

(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., 

, 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,

 (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, 

(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 

(b), 

 (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), 

Title XIII, § 13612,

 (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 

(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 

(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, 

, 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, 

 (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, 

, 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, 

 (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, 

 (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, 

 (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., 

, 364 (2022), quoting

Whitman v. American Trucking Ass'ns, 

 (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); 

(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, 

 (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, 

 (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, 

 (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, 

 (Bankr. D. Mass. 1997),

cited with approval by First Fed. Sav. & Loan Ass'n v. Napoleon,

 (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, 

 (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., 

 (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, 

 (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., 

(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.