dissenting and concurring in part:
The majority has judicially legislated Medicaid lien rights into being which I believe are at odds with state and federal law. I therefore remain of the opinion that the district court properly granted injunctive relief, prohibiting the imposition of Medicaid liens against homes of surviving spouses of Medicaid recipients.1
The Nevada State Department of Human Resources, Welfare Division, enjoys a qualified right of reimbursement of Medicaid benefits from the recipient’s estate. However, pursuant to federal law, the Nevada Legislature provides important protection for families that receive Medicaid assistance by prohibiting the Division from effecting reimbursement recovery until after the death(s) of the recipient’s surviving spouse, minor children or children with enumerated disabilities.2 In my view, the imposition of Medicaid lien rights against a recipient’s statutory survivor implicates the prohibition against such “recoveries.”
To explain, the imposition of a lien against real property held by the survivor, but once owned jointly with the recipient, encumbers the title to that property and works to facilitate the ultimate statutory reimbursement recovery. Accordingly, imposition of lien rights by the Division is inextricably related to enforcement of its right to recover against the recipient’s estate. This is underscored by the fact that, regardless of the recitations the majority now requires to *121be inserted on the face of the recorded lien document, the recorded lien -would still have to be cleared to allow for completion of any legitimate inter vivos transaction entered into by the survivor.
Because the lien rights delineated by the majority impede the ability of the survivor to make transactions concerning his or her property, such rights constitute part of the “recovery” process, a process that must await the survivor’s demise.31 therefore conclude that the Division has no express or implied statutory right to record liens against real property held by the enumerated surviving members of a Medicaid recipient’s family.
Although the majority has developed an imaginative and well-meaning remedy to facilitate Medicaid reimbursement recoveries, this judicial creation improperly usurps the Legislature’s prerogatives to define Medicaid reimbursement recovery options.4 The “balance” of interests undertaken by the majority between the continuing health of the Medicaid system and the families of Medicaid recipients should be left to the Nevada Legislature.
I concur in the result reached by the majority, to wit: that the injunctive relief be affirmed as to the individual respondents, and that entry of injunctive relief to the class prior to class notification was premature.
See 42 U.S.C. § 1396p(b) (2000); NRS 422.2935(2) (2001) (amended 2003) (current version at NRS 422.29302).
Webster's Dictionary defines a lien as
a charge upon real or personal property for the satisfaction of some debt or duty ordinarily arising by operation of law: a right in one to control or to hold and retain or enforce a charge against the property of another until some claim of the former is paid or satisfied.
Webster’s Third New International Dictionary 1306 (1968). Recovery is defined in part in Webster’s as “a means of restoration.” Id. at 1898. Thus, a “lien” is merely a component in the enforcement of a “recovery.”
I realize that the lien rights defined by the majority work to protect the Division against bad faith transfers of real property to the Medicaid survivor’s estate beneficiaries for the purpose of avoiding reimbursement. Again, while this is a worthwhile goal, this lien remedy is part and parcel of a prohibited “recovery.”