House Bill No. 168

Introduced By r. johnson

By Request of the Department of Public Health and Human Services

A Bill for an Act entitled: "An Act generally revising child support laws; clarifying that hearings by the department may be by teleconferencing methods; allowing service of certain notices by certified mail; revising administrative paternity processes; clarifying judicial review of a child support order; changing the definition of "support order" as it pertains to withholding; revising the definition of mistake of fact for income withholding hearing purposes; changing health insurance provisions relating to support; revising paternity presumptions; providing for priority of support of a decedent's children in probate of a decedent's estate; amending sections 17-4-105, 40-5-189, 40-5-201, 40-5-202, 40-5-225, 40-5-226, 40-5-231, 40-5-236, 40-5-253, 40-5-273, 40-5-403, 40-5-412, 40-5-414, 40-5-703, 40-5-809, 40-5-824, 71-3-302, and 72-3-807, MCA; and providing an immediate effective date."

Be it enacted by the Legislature of the State of Montana:

Section 1. Section 17-4-105, MCA, is amended to read:

"17-4-105. Authority to collect debt -- offsets. (1) Once a debt of an agency has been transferred to the department, the department may collect it. The department may contract with commercial collection agents for recovery of debts owed to agencies.

(2) The department shall, when appropriate, offset any amount due an agency from a person or entity against any amount, including refunds of taxes, owing the person or entity by an agency. The department may not exercise this right of offset until the debtor has first been notified by the department and been given an opportunity for a hearing. An offset may not be made against any amount paid out as child support collected by the department of public health and human services. The department shall deduct from the claim and draw warrants for the amounts offset in favor of the respective agencies to which the debt is due and for any balance in favor of the claimant. Whenever insufficient to offset all amounts due the agencies, the amount available must be applied first to debts owed by reason of the nonpayment of child support and then in the manner determined appropriate by the department.

(3) (a) The department of revenue retains the power to offset tax refunds due individuals against taxes owed the state. The department of revenue may not exercise this right of offset until the taxpayer has been notified by the department of revenue and been given the opportunity to request a review.

(b) Within 30 days following mailing of notification, the taxpayer may request a review of the asserted liability. If a review is requested, the department of revenue shall conduct an informal review conference, which is not subject to the contested case procedures of the Montana Administrative Procedure Act.

(c) Appeal from the decision of the department of revenue after the review conference may be taken to the state tax appeal board.

(d) A taxpayer is not entitled to a review conference for a tax offset if the tax liability has been the subject matter of any proceeding conducted for the purpose of determining its validity and a decision made as a result of that proceeding has become final.

(4) (a) A debt owed to the department of public health and human services or being collected by the department of public health and human services on behalf of any person or agency may be offset by the department if the debt is being enforced or collected by the department of public health and human services under Title IV-D of the Social Security Act.

(b) The debt need not be determined to be uncollectible as provided for in 17-4-104 before being transferred to the department for offset. The debt must have accrued through written contract, court judgment, or administrative order.

(c) Within 30 days following the notification provided for in subsection (2), the person owing a debt described in subsection (4)(a) may request a hearing. The request must be in writing and be mailed to the department. The person owing a debt is not entitled to a hearing if the amount of the debt has been the subject matter of any proceeding conducted for the purpose of determining the validity of the debt and a decision made as a result of that proceeding has become final. The hearing must initially be conducted by teleconferencing methods and is subject to the provisions of the Montana Administrative Procedure Act. At the request of a party and upon a showing that the party's case was substantially prejudiced by the lack of an in-person hearing, the department may, following a teleconferencing hearing, grant a de novo in-person hearing. The department of public health and human services shall adopt rules governing the hearing procedures.

(5) If the department determines that a person or entity has refused or neglected to file a claim within a reasonable time, the head of the state agency owing the amount shall file the claim on behalf of the person or entity. If the claim is approved by the department, the claim has the same force and effect as though filed by the person or entity. The amount due any person or entity from the state or any agency of the state is the net amount otherwise owing the person or entity after any offset, as provided in this section."

Section 2. Section 40-5-189, MCA, is amended to read:

"40-5-189. Procedure to contest validity or enforcement of registered order. (1) A nonregistering party seeking to contest the validity or enforcement of a registered order in this state shall request a hearing within 20 days after the date of mailing or personal service of notice of the registration. A court hearing may be conducted by teleconferencing methods. A department hearing must initially be conducted by teleconferencing methods and is subject to the Montana Administrative Procedure Act. At the request of a party and upon a showing that the party's case was substantially prejudiced by the lack of an in-person hearing, the department may, following a teleconferencing hearing, grant a de novo in-person hearing. The nonregistering party may, pursuant to 40-5-190, seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages.

(2) If the nonregistering party fails to contest the validity or enforcement of the registered order in a timely manner, the order is confirmed by operation of law.

(3) If a nonregistering party requests a hearing to contest the validity or enforcement of the registered order, the registering tribunal shall schedule the matter for hearing and give notice to the parties by first-class mail of the date, time, and place of the hearing."

Section 3. Section 40-5-201, MCA, is amended to read:

"40-5-201. Definitions. As used in this part, the following definitions apply:

(1) "Alleged father" means a person who is alleged to have engaged in sexual intercourse with a child's mother during a possible time of conception of the child or a person who is presumed to be a child's father under the provisions of 40-6-105.

(2) (a) "Child" means any person under 18 years of age who is not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States; any person under 19 years of age and still in high school; or any person who is mentally or physically incapacitated if the incapacity began prior to the person's 18th birthday and for whom:

(i) support rights are assigned under 53-2-613;

(ii) a public assistance payment has been made;

(iii) the department is providing support enforcement services under 40-5-203; or

(iv) the department has received a referral for interstate services from an agency of another state under the provisions of the Uniform Reciprocal Enforcement of Support Act (URESA) or the Uniform Interstate Family Support Act (UIFSA) or under Title IV-D of the Social Security Act.

(b) The term may not be construed to limit the ability of the department to enforce a support order according to its terms when the order provides for support to extend beyond the child's 18th birthday.

(3) "Department" means the department of public health and human services.

(4) "Director" means the director of the department of public health and human services or the director's authorized representative.

(5) "Guidelines" means the child support guidelines adopted pursuant to 40-5-209.

(6) "Hearings officer" or "hearing examiner" means the hearings officer appointed by the department for the purposes of this chapter.

(7) "Need" means the necessary costs of food, clothing, shelter, and medical care for the support of a child or children.

(8) "Obligee" means:

(a) a person to whom a duty of support is owed and who is receiving support enforcement services under this part; or

(b) a public agency of this or another state having the right to receive current or accrued support payments.

(9) "Obligor" means a person, including an alleged father, who owes a duty of support.

(10) "Parent" means the natural or adoptive parent of a child.

(11) "Paternity blood test" means a test that demonstrates through examination of genetic markers either that an alleged father is not the natural father of a child or that there is a probability that an alleged father is the natural father of a child. Paternity blood tests may include but are not limited to the human leukocyte antigen test and DNA probe technology.

(12) "Public assistance" means any type of monetary or other assistance for a child, including medical and foster care benefits. The term includes payments to meet the needs of a relative with whom the child is living, if assistance has been furnished with respect to the child by a state or county agency of this state or any other state.

(13) "Support debt" or "support obligation" means the amount created by:

(a) the failure to provide for the medical, health, and support needs of a child under the laws of this or any other state or under a support order; or

(b) a support order for spousal maintenance if the judgment or order requiring payment of maintenance also contains a judgment or order requiring payment of child support for a child of whom the person awarded maintenance is the custodial parent.

(14) "Support order" means an order, whether temporary or final, that:

(a) provides for the payment of a specific amount of money, expressed in periodic increments or as a lump-sum amount, for the support of the child, including an amount expressed in dollars for medical and health needs, child care, education, recreation, clothing, transportation, and other related expenses and costs specific to the needs of the child; and

(b) is issued by:

(i) a district court of this state;

(ii) a court of appropriate jurisdiction of another state, Indian tribe, or foreign country;

(iii) an administrative agency pursuant to proceedings under this part; or

(iv) an administrative agency of another state, Indian tribe, or foreign country with a hearing function and process similar to those of the department under this part.

(15) "IV-D" means the provisions of Title IV-D of the Social Security Act and the regulations promulgated under the act."

Section 4. Section 40-5-202, MCA, is amended to read:

"40-5-202. Department of public health and human services -- powers and duties regarding collection of support debt. (1) The department may take action under the provisions of this chapter, the abandonment or nonsupport statutes, the Uniform Parentage Act established in Title 40, chapter 6, part 1, and other appropriate state and federal statutes to provide IV-D services if the department:

(a) receives a referral on behalf of the child from an agency providing services to the child under the provisions of Title 41, Title 52, or Title 53;

(b) is providing services under 40-5-203; or

(c) receives an interstate referral, whether under the Revised Uniform Reciprocal Enforcement of Support Act, the Uniform Interstate Family Support Act, or an interstate action by a Title IV-D agency of another state.

(2) A verified statement, filed by the department, that it is providing services is prima facie evidence of its authority to act. Upon filing, the department may, on behalf of itself or on behalf of the obligee, obligor, or child, initiate, participate in, intervene in, or exercise any remedy available in a judicial or an administrative action on the same basis as any other party.

(3) Whether acting on its own behalf or on behalf of the obligee, obligor, or child, the department and its attorneys serve the public interest in ensuring that children are supported by their parents, rather than maintained by public assistance. The department does not represent the interests of any individual person, and its attorneys represent only the department. An attorney-client relationship is not created between department attorneys and any person or entity other than the department. The obligee, obligor, and child may obtain the services of a private attorney to represent their interests. The existence or appearance of a private attorney as counsel of record for the obligee, obligor, or child does not affect the department's right to act or provide services under this chapter. This chapter does not require the department to provide a private attorney for, or to pay for a private attorney for, an obligee, obligor, or child.

(4) The department has the power of attorney to act in the name of any obligee to endorse and cash any drafts, checks, money orders, or other negotiable instruments received by the department on behalf of a child.

(5) (a) If the department is providing IV-D services, the department must be afforded notice and an opportunity to participate as an independent party in any proceeding relating to paternity, to termination of parental rights, or to the establishment, enforcement, or modification of a support obligation, whether initiated by the obligee, the obligor, or the child.

(b) The notice must reasonably inform the department of the issues to be determined in the proceeding, the names of the parties and the child, and the identity and location of the tribunal in which the issues will be determined. The notice is for informational purposes only and is not intended as a substitute for procedures necessary under the Montana Rules of Civil Procedure to establish personal jurisdiction over the department. Whether or not the department is given notice, an agreement, judgment, decree, or order is void as to any interest of the department that is or may be affected by the agreement, judgment, decree, or order if the department was not joined as a party in the manner provided in the Montana Rules of Civil Procedure.

(c) The notice must be personally served on the department. Within 20 days after service of the notice, the department may:

(i) decline to enter the proceeding as a party, in which case the proceeding may continue without the department's participation;

(ii) inform the tribunal that a substantial interest of the department could be adversely affected by the proceeding, in which case the proceeding may not continue without joining the department as a necessary party in the manner provided in the Montana Rules of Civil Procedure; or

(iii) inform the tribunal that prior to the filing of the proceeding, the department initiated an administrative proceeding under this chapter in which the parties and some or all of the issues are the same as those in the proceeding before the tribunal. The tribunal shall then discontinue the proceeding as to the common issues until administrative remedies have been exhausted.

(6) (a) A When the department is providing services, a recipient or former recipient of public assistance who assigned support rights under ~~53-2-613~~ 42 U.S.C. 602(a)(26) or a collection agency acting on behalf of the recipient or former recipient may collect only that part of a delinquent support amount that accrued after termination of public assistance. The recipient, former recipient, or collection agency may not commence or maintain an action against or make an agreement with the obligor to recover an assigned delinquent support amount unless the department, in writing:

(i) releases or relinquishes its assigned interest;

(ii) declares the support debt owed the department to be satisfied, in which case the balance of the delinquent amount is released; or

(iii) consents to the action or agreement.

(b) If a recipient, former recipient, or collection agency collects or receives value for any part of an assigned delinquent support amount and the department has not given its consent or released or relinquished its assigned interest, the recipient, former recipient, or collection agency shall make prompt and full restitution to the department. If prompt and full restitution is not made, the department may send a written demand to the recipient, former recipient, or collection agency, and if prompt and full restitution is not made within 20 days of the date of the written demand, the recipient, former recipient, or collection agency is liable for damages equal to double the amount collected or value received. The amount of damages may be determined and assessed by the department under the contested case provisions of the Montana Administrative Procedure Act. The damages may be collected by the department by any method or remedy available for the enforcement of child support owed by an obligor parent.

(c) This subsection (6) does not limit the right of a person to recover money not assigned. If there are competing proceedings against an obligor for collection of delinquent support, the collection of support assigned to the department takes priority over the obligor's income and assets.

(7) An applicant for or recipient of services may not act to the prejudice of the department's rights while the services are being provided.

(8) Unless the department has consented to the agreement in writing, if public assistance is being or has been paid for a child, an agreement between an obligee and an obligor or a judgment, decree, or order adopting the agreement does not act to reduce or terminate any rights of the department to establish a support order or to recover a support debt from the obligor, even if the agreement, judgment, decree, or order purports to:

(a) relieve or terminate the obligor's support duty;

(b) waive, modify, compromise, or discharge the support debt;

(d) permit the obligor to pay past, present, or future support obligations:

(i) with noncash contributions;

(ii) by the payment of other debts or obligations, such as vehicle, rent, and mortgage payments; or

(iii) by making contributions to a trust or other account or payments toward an asset if the contributed amounts are unavailable to the department.

(9) The department may petition a court or an administrative agency for modification of any order on the same basis as a party to that action is entitled to do.

(10) The department is subrogated to the right of the child or obligee to maintain any civil action or execute any administrative remedy available under the laws of this or any other state to collect a support debt. This right of subrogation is in addition to and independent of the assignment under ~~53-2-613~~ 42 U.S.C. 602(a)(26) and the support debt created by 40-5-221.

(11) If public assistance is being or has been paid, the department is subrogated to the debt created by a support order and any money judgment is considered to be in favor of the department. This subrogation is an addition to any assignment made under ~~53-2-613~~ 42 U.S.C. 602(a)(26) and applies to the lesser of:

(a) the amount of public assistance paid; or

(b) the amount due under the support order.

(12) The department may adopt and enforce the rules necessary to carry out the provisions of this part.

(13) While providing services under this chapter and in order to carry out the purposes mentioned in this chapter, the department, through its director or the director's authorized representatives, may:

(a) administer oaths;

(b) certify official acts and records;

(d) order discovery before and after a hearing;

(e) hold prehearing and settlement conferences;

(f) compel the attendance of witnesses and the production of books, accounts, documents, and evidence; ~~and~~

(g) conduct proceedings supplementary to and in aid of a writ of execution or warrant for distraint, including the examination of an obligor or other person in the manner provided for the taking of a deposition in a civil action; and

(h) perfect service of investigative and hearing subpoenas by certified mail or in the manner prescribed for service of a summons in a civil action in accordance with the Montana Rules of Civil Procedure.

(14) In addition to any other requirement for service provided by the Montana Rules of Civil Procedure, if a person is required to give notice to, serve, or provide a written response to the department under this chapter, the notice, service, or response must be made to the department's child support enforcement division.

(15) The department may collect any funds received under this chapter, and wrongfully retained, by the obligor through any remedy available for collection of child support."

Section 5. Section 40-5-225, MCA, is amended to read:

"40-5-225. Notice of financial responsibility -- temporary and final support obligations -- administrative procedure. (1) (a) In the absence of a support order, the department may serve an obligor with a notice of financial responsibility alleging a child's need for support and the amount of the need and requiring the obligor to appear and show cause at a hearing held by the department why the obligor should not be finally ordered to pay the amount alleged in the notice.

(b) The notice must state:

(i) the names of the obligee and child;

(ii) the amount of current and future support to be paid each month for the child;

(iii) that if the obligor does not file a written answer within 20 days from the date of service or refusal of service, the amount in the notice must be finally ordered;

(iv) that the obligor is entitled to a fair hearing under 40-5-226.

(2) If, prior to the service of the notice under this section, the department has information concerning the obligor's financial condition, the department's allegation of the obligor's monthly support responsibility must be based on the scale of suggested minimum contributions under 40-5-214. If such information is unknown to the department, the allegations of the obligor's monthly support responsibility must be based on the greater of:

(a) the amount of public assistance payable under Title 53, chapter 4; or

(b) the alleged need.

(3) If the obligor objects to the notice, the obligor shall file a written answer with the department within 20 days from the date of service or refusal of service. If the department receives a timely answer, it shall conduct a fair hearing under 40-5-226. If the department does not receive a timely answer, it shall order the obligor to pay the amount stated in the notice.

(4) (a) If a support action is pending in district court and a temporary or permanent support obligation has not been ordered, the department may issue to the obligor a notice of temporary support obligation.

(b) The notice must contain:

(i) the names of the child and the person or agency having the custodial care of the child;

(ii) an amount for temporary monthly support determined as provided in subsection (2);

(iii) a statement that the obligor may request a hearing at which the obligor may show that a different support amount is appropriate or that establishment of a support obligation is inappropriate under the circumstances. The hearing must be conducted in accordance with the procedures of 40-5-226.

(iv) a statement that a hearing must be requested in writing within 10 days of receipt of the notice or the order for a temporary support order will be entered in the amount stated in the notice; and

(v) a statement that the temporary support order will terminate upon the entry of a district court support order. If the district court order is retroactive, any amount paid for a particular period under the temporary support order must be credited against the amounts due under the district court order for the same period, but excess amounts may not be refunded. If the district court determines that a periodic support obligation is not proper, any amount paid under the temporary support order must be refunded to the obligor.

(5) (a) If a temporary support order is entered or if proceedings are commenced under this section for a married obligor, the department shall vacate any support order or dismiss any proceeding under this part if it finds that the parties to the marriage have:

(i) reconciled without the marriage having been dissolved;

(ii) made joint application to the department to vacate the order or dismiss the proceeding; and

(iii) provided proof that the marriage has been resumed.

(b) The department may not vacate a support order or dismiss a proceeding under this subsection (5) if it determines that the rights of a third person or the child are affected. The department may issue a new notice under this section if the parties subsequently separate.

(6) ~~Any~~ A notice of financial responsibility and the notice of temporary support obligation ~~must~~ may be served either by certified mail or in the ~~same~~ manner prescribed for the service of a summons in civil action in accordance with the Montana Rules of Civil Procedure."

Section 6. Section 40-5-226, MCA, is amended to read:

"40-5-226. Administrative hearing -- nature -- place -- time -- determinations -- failure to appear -- entry of final decision and order. (1) The administrative hearing is defined as a "contested case".

(2) If a hearing is requested, it must be scheduled within 20 days. The hearing must initially be conducted by teleconferencing methods and is subject to the Montana Administrative Procedure Act. At the request of a party and upon a showing that the party's case was substantially prejudiced by the lack of an in-person hearing, the hearings officer may, following a teleconferencing hearing, grant a de novo in-person hearing.

(3) The hearings officer shall determine the liability and responsibility, if any, of the obligor under the notice and shall enter a final decision and order in accordance with the determination. The order may award support from the date of:

(a) the child's birth if paternity was established under 40-5-231 through 40-5-238 or under Title 40, chapter 6, part 1, subject to the limitation in 40-6-108(3)(b);

(b) the parties' separation if support is initially established under 40-5-225; or

(4) If the obligor fails to appear at the hearing or fails to timely request a hearing, the hearings officer, upon a showing of valid service, shall enter a decision and order declaring the amount stated in the notice to be final.

(5) In a hearing to determine financial responsibility, whether temporary or final, and in any proceeding to modify support under 40-5-273, the monthly support responsibility must be determined in accordance with the evidence presented and with reference to the uniform child support guidelines adopted by the department under 40-5-209. The hearings officer is not limited to the amounts stated in the notice. The guidelines must be used in all cases, including cases in which the order is entered upon the default of a party and those in which the order is entered upon the parties' consent. A verified representation of a defaulting parent's income, based on the best information available, may be used when a parent fails to provide financial information for use in applying the guidelines. The amount determined under the guidelines is presumed to be an adequate and reasonable support award, unless the hearings officer finds by clear and convincing evidence that the application of the guidelines is unjust to the child or to any of the parties or is inappropriate in a particular case. If the hearings officer finds that the guideline amount is unjust or inappropriate in a particular case, the hearings officer shall state the reasons for finding that the application of the guidelines is unjust to the child or a party or is inappropriate in that particular case. Similar findings must also be made in a case in which the parties have agreed to a support amount that varies from the guideline amount. The hearings officer may vary the application of the guidelines to limit the obligor's liability for past support to the proportion of expenses already incurred that the hearings officer considers just. Findings that rebut and vary the guideline amount must include a statement of the amount of support that would have ordinarily been ordered under the guidelines.

(6) Within 20 days of the hearing, the hearings officer shall enter a final decision and order. The determination of the hearings officer constitutes a final agency decision, subject to judicial review under 40-5-253 and the provisions of the Montana Administrative Procedure Act.

(7) A support order entered under this part must contain a statement that the order is subject to review and modification by the department upon the request of the department or a party under 40-5-271 through 40-5-273 when the department is providing services under IV-D for the enforcement of the order.

(8) A support debt determined pursuant to this section is subject to collection action without further necessity of action by the hearings officer.

(9) A support debt or a support responsibility determined under this part by reason of the obligor's failure to request a hearing under this part or failure to appear at a scheduled hearing may be vacated, upon the motion of an obligor, by the hearings officer within the time provided and upon a showing of any of the grounds enumerated in the Montana Rules of Civil Procedure.

(10) Unless the hearings officer makes a written exception under 40-5-315 or 40-5-411 and the exception is included in the support order, each order establishing a child support obligation, whether temporary or final, and each modification of an existing child support order under this part is enforceable by immediate or delinquency income withholding, or both, under Title 40, chapter 5, part 4. A support order that omits that provision or that provides for a payment arrangement inconsistent with this section is nevertheless subject to withholding for the payment of support without need for an amendment of the support order or for any further action by the hearings officer.

(11) For the purposes of income withholding provided for in subsection (10), whenever the department establishes or modifies a child support obligation, the department's order must include a provision requiring the obligor, for as long as the department is providing support enforcement services, to keep the department informed of the name and address of the obligor's current employer, whether the obligor has access to health insurance through an employer or other group, and, if so, the health insurance policy information.

(12) The hearings officer may:

(a) compel obedience to the hearings officer's orders, judgments, and process and to any orders issued by the department, including income-withholding orders issued pursuant to 40-5-415;

(b) compel the attendance of witnesses at administrative hearings;

(d) compel the production of accounts, books, documents, and other evidence; and

(e) punish for civil contempt. Contempt authority does not prevent the department from proceeding in accordance with the provisions of 2-4-104.

(13) A contempt occurs whenever:

(a) a person acts in disobedience of any lawful order, judgment, or process of the hearings officer or of the department;

(b) a person compelled by subpoena to appear and testify at an administrative hearing or to appear for genetic paternity tests fails to do so;

(d) an obligor or obligee subject to a discovery order issued by the hearings officer fails to comply with discovery requests; or

(e) a payor under an order to withhold issued pursuant to 40-5-415 fails to comply with the provisions of the order. In the case of a payor under an income-withholding order, a separate contempt occurs each time that income is required to be withheld and paid to the department and the payor fails to take the required action.

(14) An affidavit of the facts constituting a contempt must be submitted to the hearings officer, who shall review it to determine whether there is cause to believe that a contempt has been committed. If cause is found, the hearings officer shall issue a citation requiring the alleged contemnor to appear and show cause why the alleged contemnor should not be determined to be in contempt and required to pay a penalty of not more than $500 for each count of contempt. The citation, along with a copy of the affidavit, must be served upon the alleged contemnor either by personal service or by certified mail. All other interested persons may be served a copy of the citation by first-class mail.

(15) At the time and date set for hearing, the hearings officer shall proceed to hear witnesses and take evidence regarding the alleged contempt and any defenses to the contempt. If the alleged contemnor fails to appear for the hearing, the hearing may proceed in the alleged contemnor's absence. If the hearings officer finds the alleged contemnor in contempt, the hearings officer may impose a penalty of not more than $500 for each count found. The hearings officer's decision constitutes a final agency decision, subject to judicial review under 40-5-253 and subject to the provisions of Title 2, chapter 4.

(16) An amount imposed as a penalty may be collected by any remedy available to the department for the enforcement of child support obligations, including warrant for distraint pursuant to 40-5-247, income withholding pursuant to Title 40, chapter 5, part 4, and state debt offset, pursuant to Title 17, chapter 4, part 1. The department may retain any penalties collected under this section to offset the costs of administrative hearings conducted under this chapter.

(17) The penalties charged and collected under this section must be paid into the state treasury to the credit of the child support enforcement division special revenue fund and must be accompanied by a detailed statement of the amounts collected."

Section 7. Section 40-5-231, MCA, is amended to read:

"40-5-231. Jurisdiction and venue. (1) For purposes of an administrative action brought under this part, personal jurisdiction is established in the department over any individual or the individual's guardian or conservator if:

(a) the individual is personally or by certified mail served with notice within this state;

(b) the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document that has the effect of waiving any contest to personal jurisdiction;

(d) the individual resided in this state and provided prenatal expenses or support for the child;

(e) the child resides in this state as a result of the acts or directives of the individual;

(f) the individual engaged in sexual intercourse in this state and the child may have been conceived by the act of intercourse; or

(g) there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.

(2) Personal jurisdiction over the individuals described in subsection (1) may be acquired by personal service or by service of notice by certified mail.

(3) If the child or either parent resides in this state, a hearing under this part may be held in the county where:

(a) the child resides;

(b) either parent resides; or

Section 8. Section 40-5-236, MCA, is amended to read:

"40-5-236. Referral of paternity issue to district court -- record -- parties -- exclusion of other matters -- fees. (1) If the scientific evidence resulting from a paternity blood test does not exclude the alleged father and the alleged father continues to deny paternity, the alleged father shall file a written objection with the department within 20 days after service of the paternity blood test results specifically requesting referral of the paternity issue to the district court. Upon receipt of the written objection, the department shall refer the matter to the district court for a determination based on the contents of the administrative hearing record and any further evidence that may be produced at trial. Except as otherwise provided in 40-5-231 through 40-5-237, proceedings in the district court must be conducted pursuant to Title 40, chapter 6, part 1.

(2) The administrative record must include:

(a) a copy of the notice of paternity determination and the return of service of the notice;

(b) the alleged father's written denial of paternity, if any;

(d) the paternity blood test results and any report of an expert based on the results; and

(e) any other relevant information.

(3) Upon filing of the record with the district court, the court acquires jurisdiction over the parties as if they had been served with a summons and complaint. The department shall serve written notice upon the alleged father, as provided in 40-5-231(2), that the issue of paternity has been referred to the district court for determination.

(4) In a proceeding in the district court, the department shall appear on the issue of paternity only. The court may not appoint a guardian ad litem for the child unless the court in its discretion determines that an appointment is necessary and in the best interest of the child. Neither the mother nor the child is a necessary party, but either may testify as a witness.

(5) No other matter may be joined with an action to determine the existence or nonexistence of the parent and child relationship under this section. The parties shall institute an independent action to address other issues, including visitation and custody.

(6) Except as provided in 25-10-711, the department is not liable for attorney fees, including fees for attorneys appointed under 40-6-119, or fees of a guardian ad litem appointed under 40-6-110."

Section 9. Section 40-5-253, MCA, is amended to read:

"40-5-253. Administrative findings and order -- administrative remedies -- judicial review. (1) It is the intent of this part that administrative findings and orders be subject to judicial review, but administrative remedies must be exhausted prior to judicial review. The administrative procedures described in this part are subject to review in the appropriate district court. ~~Such~~ Except as provided in subsections (3) through (5), the review must be conducted pursuant to the Montana Administrative Procedure Act. Upon a showing by the department that administrative remedies have not been exhausted, the district court shall refuse review until ~~such~~ the remedies are exhausted.

(2) ~~Nothing in this~~ This part may not be construed to abridge or in any way affect the obligor's right to counsel during any and all judicial or administrative proceedings pursuant to this part.

(3) A petition for judicial review is an original action and may not be filed under a preexisting cause number or joined with any other action.

(4) A summons must be issued and served under Rule 4, Montana Rules of Civil Procedure, upon the department and each party along with the petition for judicial review. The district court does not obtain jurisdiction unless the petition for judicial review is served on all parties within 30 days after the petition is filed with the district court.

(5) The district court shall set a briefing schedule for a petition for judicial review. A reference in a brief to the administrative record must be to a particular part of the record, suitably designated, and to specific pages of that part of the record. Intelligible abbreviations may be used. A reference to an exhibit must be to the pages of the transcript on which the exhibit is identified, offered in evidence, and received or rejected. After briefs have been filed, and upon motion of a party, the district court may order oral argument."

Section 10. Section 40-5-273, MCA, is amended to read:

"40-5-273. Administrative review of child support orders -- modifying orders. (1) A review application setting forth facts meeting any of the criteria for review of a child support order established in 40-5-272 must be scheduled for an administrative ~~hearing, and a hearings officer must be appointed by the department~~ review. Unless the ~~hearings officer~~ department determines under rules of the department that an in-person ~~hearing~~ review is necessary, the ~~hearing~~ review must be conducted by ~~telephone conference~~ teleconferencing methods. ~~The order scheduling the hearing~~ A notice that an administrative review will be conducted must be served on the obligor and the obligee at least 60 days before ~~the~~ a hearing. The ~~order~~ notice must include the following information as an exception to 2-4-601:

~~(a) the date and time for the hearing and, if appropriate, the place for the hearing;~~

~~(b)~~(a) a statement of the purpose, objectives, and possible consequences of the review;

~~(c)~~(b) a statement of the right of the obligor and the obligee to request the ~~hearings officer~~ department to issue subpoenas compelling the appearance of witnesses and the production of documents for ~~the~~ a hearing; and

~~(d)~~(c) a requirement that the obligor and the obligee provide the ~~hearings officer~~ department with telephone numbers at which they and their witnesses may be contacted for the ~~hearing~~ review.

(2) The ~~hearings officer~~ department may issue an order commanding the obligor or the obligee, or both, to produce financial information. The order must be personally served with the ~~order scheduling the hearing~~ notice that a review will be conducted. The ~~hearings officer~~ department may also issue subpoenas ordering the ~~department or other~~ parties to produce information in their possession about the obligor and the obligee that may be reasonably necessary for application of the guidelines. Any information so obtained by the ~~hearings officer~~ department must be provided to the ~~department and other~~ parties ~~prior to the~~ before a hearing.

(3) The requested modification of the order must be determined on the evidence submitted to the ~~hearings officer~~ department under the following conditions:

(a) If an applicant other than the department fails to provide a telephone number for the ~~hearing~~ review or fails to be at the number provided when telephoned for the ~~hearing~~ review, the failure is may be considered a withdrawal of the application.

(b) If a party other than the applicant fails to provide a telephone number for the ~~hearing~~ review or fails to be at the number provided when telephoned for the ~~hearing~~ review, the failure is considered to mean that the party does not oppose the modification.

(c) If the department is the applicant and if either the obligor or the obligee, or both, fails to provide a telephone number for the ~~hearing~~ review or fails to be at the number provided when telephoned for the ~~hearing~~ review, the failure is may be considered an admission that the party or parties do not oppose the modification.

(4) An order entered under the circumstances described in subsection (3)(a), (3)(b), or (3)(c) becomes final within 10 30 days of issuance unless a party provides the hearings officer an affidavit showing good cause for failure to provide a telephone number or failure to be available ~~for the hearing~~ when telephoned.

(5) A provision of law may not be construed to mean that an obligor or an obligee is a client of the department, and the department is not considered a party to the action.

(6) (a) In addition to the powers and duties provided by other law, the ~~hearings officer~~ department shall, to ensure the equitable determination of a support obligation, during a review ~~hearing~~:

(i) question witnesses in a nonadversarial manner to elicit full disclosure of all pertinent facts;

(ii) introduce evidence on behalf of the parties;

(iii) apply the guidelines to the facts elicited from the ~~hearing~~ review; and

(iv) inquire as to any circumstances that may require variance from the guidelines.

(b) If a party is represented by legal counsel, the ~~hearings officer~~ department may allow the counsel to present that party's case.

(7) The ~~hearings officer~~ department shall determine a support obligation in accordance with the guidelines and shall issue a modifying order. A stipulation by the parties in a proceeding under this section may not be contested before entry of the final department order. If the ~~hearings officer~~ department determines that the difference between the existing support order and the amount determined under the guidelines is negligible under rules issued by the department, the modifying order may not change the amount of the support obligation. Even though the review may indicate that a modification of the support obligation is appropriate, the department may not modify the support order if the ~~hearings officer~~ department determines, after the review ~~hearing~~, that to do so would not be in the best interests of the child under the rules issued by the department. An increase in child support is presumed to be in the best interests of the child unless, after a review ~~hearing~~, either the obligor or the obligee demonstrates it would not be in the best interests of the child. The modifying order ~~must~~ may prospectively modify the underlying support order from the date of service of ~~the order scheduling the hearing~~ a notice that an administrative review will be conducted under this section.

(8) The hearings officer shall make a written determination whether health insurance is available to the child of the obligor through the obligor's employment or other group insurance. If the hearings officer determines health insurance is available to the child of the obligor, the hearings officer shall issue a modifying order that requires the obligor to obtain and keep health insurance for the child. If the hearings officer determines that health insurance is not available to the child of the obligor, he shall issue a modifying order containing the notices provided in subsection (9). An order to provide health insurance is presumed to be in the best interests of the child unless, after a review hearing, either the obligor or the obligee demonstrates it would not be in the best interests of the child. The department shall consider whether or not health insurance for the child is available and shall include an appropriate requirement for the provision of the child's health insurance needs in a modifying order in accordance with part 8 of this chapter.

(9) In addition to complying with other requirements of law, the modifying order must include the following notices and warnings:

(a) that the obligor shall keep the department informed of the name and address of ~~his~~ the obligor's current employer and information on health insurance available to the obligor through the obligor's employment or other group insurance; and

~~(b) that the obligor shall obtain and keep health insurance for the child of the obligor whenever it is available through the obligor's employment or other group insurance; and~~

~~(c)~~(b) that the modifying order is subject to future administrative review and modification by the department upon the request of the department or a party under 40-5-271 through 40-5-273 when the department is providing services under IV-D.

(10) ~~Orders~~ An order entered under this section ~~are~~ by the department is a final agency ~~decisions~~ decision, subject to judicial review pursuant to the Montana Administrative Procedure Act, except as provided in 40-5-253. ~~All orders~~ An order entered under this section must notify the parties that the order is subject to judicial review under Title 2, chapter 4, part 7. A final order entered under a stipulation of parties waives the stipulating parties' right to judicial review.

(11) The parties to the support order and the department when it is providing services under IV-D may enforce the support order or modify that order independently, as provided in 40-4-208 and 53-2-613(4)(d)."

Section 11. Section 40-5-403, MCA, is amended to read:

"40-5-403. Definitions. As used in this part, the following definitions apply:

(1) "Alternative arrangement" means a written agreement signed by the obligor and obligee, and signed by the department in the case of an assignment of rights under 53-2-613, that has been approved and entered in the record of the court or administrative authority issuing or modifying the support order.

(2) "Department" means the department of public health and human services provided for in 2-15-2201.

(3) "Income" means any form of periodic payment to a person, including earnings and wages. However, income does not include:

(a) any amount required by law to be withheld, other than creditor claims, including federal, state, and local taxes and social security; and

(b) any amounts exempted from judgment, execution, or attachment by federal or state law.

(4) "Obligee" means either a person to whom a duty of support is owed or a public agency of this or another state to which a person has assigned the right to receive current and accrued support payments.

(5) "Obligor" means a person who owes a duty to make payments under a support order.

(6) "Payor" means any payor of income to an obligor on a periodic basis and includes any person, firm, corporation, association, employer, trustee, political subdivision, state agency, or any agent thereof, who is subject to the jurisdiction of the courts of this state under Rule 4B of the Montana Rules of Civil Procedure.

(7) "Support order" means an order of the district court of the state of Montana, an order of a court of appropriate jurisdiction of another state, an administrative order established pursuant to proceedings under part 2 of this chapter, or an order established by administrative hearing process of an agency of another state with functions similar to those of the department set forth in part 2 of this chapter, that provides a set and determinable amount for temporary or final periodic payment of funds for the support of a child. Support order further includes the following:

~~(a) an order for reimbursement of public assistance money paid by a public agency for the benefit of a minor child;~~

~~(b) an order for maintenance to be paid to a former spouse when the former spouse is the custodial parent of a child for whom child support is awarded under the same order; and~~

~~(c) an order requiring payment of interest due on unpaid judgments for child support~~ has the meaning provided in 40-5-201."

Section 12. Section 40-5-412, MCA, is amended to read:

"40-5-412. Delinquency income withholding. (1) In the case of support orders not subject to immediate income withholding under 40-5-411, including cases in which the court or administrative authority has made a finding of good cause or determines that an alternative arrangement exists, the income of the obligor is subject to withholding under this part beginning on the date on which the obligor is found to owe unpaid support under the support order in an amount equal to or in excess of 1 month's support payment. Intervening agreements or orders establishing a schedule for payment of delinquent support do not prevent income withholding under this part.

(2) Notwithstanding the provisions of subsection (1), income withholding must be initiated, without regard to whether there is an arrearage, on the earlier of:

(a) the date the obligor requests that withholding begin; or

(b) at the request of the obligee if the obligor is found, after an opportunity for hearing under 40-5-414, to be delinquent under the terms of an alternative arrangement for the payment of support.

(3) To accomplish the purpose of subsection (1), the department shall monitor all support payments not otherwise subject to immediate withholding. To facilitate monitoring, the department by written notice to the obligor may direct an obligor who does not owe unpaid child support equal to or in excess of 1 month's support payment to pay all support through the department, notwithstanding a court order directing payments to be made to the obligee or clerk of court.

(4) The only basis for contesting withholding under this section is a mistake of fact, which does not include a mistake of fact relating to establishment of custody and visitation but includes a mistake:

(a) concerning the obligor's identity;

(b) concerning the existence of the support obligation;

(d) in the determination that the delinquent support amounts owed are equal to or greater than 1 month's support payment;

(e) in computation of delinquent support amounts owed; or

(f) in the allegation that the obligor is in default of an alternative agreement."

Section 13. Section 40-5-414, MCA, is amended to read:

"40-5-414. Hearing. (1) To contest the withholding of income initiated under 40-5-412 because of a delinquency or the modification of an existing order to withhold, an obligor may within 10 days of being served with notice of intent to withhold income under 40-5-413 file with the department a written request for an administrative hearing to be held pursuant to the contested case provisions of Title 2, chapter 4, part 6.

(2) Venue for the administrative hearing may be in the county where the obligor resides if the obligor resides in this state, the county in which the payor or the payor's agent is located, or the county in which the department or any of its regional offices is located.

(3) The ~~administrative~~ hearing must initially be held by teleconferencing methods ~~unless the obligor or the department expressly requests an in-person hearing before the hearings examiner~~ and is subject to the Montana Administrative Procedure Act. At the request of a party and upon a showing that the party's case was substantially prejudiced by the lack of an in-person hearing, the hearings officer may, following a teleconferencing hearing, grant a de novo in-person hearing.

(4) If the obligor requests a hearing within the 10-day period:

(a) the initiation of delinquency income withholding by the department and the modification of an existing withholding order must be stayed until conclusion of the hearing or the date of the hearing if the obligor fails to appear at the scheduled hearing. However, in a proceeding to initiate income withholding, if the obligor is only contesting an arrearage amount and is not contesting withholding for current support, income withholding for current support is not stayed. In a proceeding to modify an existing order, income withholding under the existing order to withhold is not stayed.

(b) the department shall, within 45 days of the service of the notice of intent to withhold income, inform the obligor of the hearing results concerning whether income withholding will take place.

(5) The department shall issue an order to withhold income or a modified order to withhold in accordance with 40-5-415 if:

(a) the obligor fails to file a written request for hearing with the department within the specified 10-day period;

(b) the obligor fails to appear at a scheduled hearing;

(c) the hearings examiner determines from the evidence that the obligor owes unpaid support equal to or in excess of 1 month's support obligation and the amount of arrearages owing is determined and adjudged to be a fixed and certain sum;

(d) there is an existing order to withhold and if the hearings examiner determines from the evidence that the obligor owes new or additional amounts in arrears; or

(e) in cases in which income withholding is being initiated at the request of an obligee without regard to whether there is an arrearage, the hearings examiner determines from the evidence that the obligor did not meet the terms of the alternative arrangement.

(6) For purposes of the hearing process, arrearages of support must be computed on the basis of the amount owed and unpaid on the date on which the obligor was served with the notice of intent to withhold income. When the department is enforcing a current support obligation, payment of the arrearage after service of the notice is not a basis for not initiating income withholding.

(7) In a case initiated because an arrearage has accrued or because additional income is being withheld to satisfy additional arrearages, the obligor, within 45 days of service of the notice of intent to withhold income, must be informed of the hearing decision on whether income withholding will take place.

(8) If the obligor fails to request a hearing within 10 days or fails to appear at a scheduled hearing or if the hearings examiner determines that the obligor owes a combination of unpaid support equal to or in excess of 1 month's support obligation or determines that a modification of an existing order is proper, the department shall proceed with the intended action in accordance with 40-5-415."

Section 14. Section 40-5-703, MCA, is amended to read:

"40-5-703. Hearing -- order suspending license. (1) To show cause why suspension of a license would not be appropriate, the obligor shall request a hearing from the support enforcement entity that issued the notice of intent to suspend the license. The request must be made within 60 days of the date of service of the notice.

(2) Upon receipt of a request for hearing from an obligor, the support enforcement entity shall schedule a hearing for the purpose of determining if suspension of the obligor's license is appropriate. A court hearing may be conducted by teleconferencing methods. A department hearing must initially be conducted by teleconferencing methods and is subject to the Montana Administrative Procedure Act. At the request of a party and upon a showing that the party's case was substantially prejudiced by the lack of an in-person hearing, the department may, following a teleconferencing hearing, grant a de novo in-person hearing. The support enforcement entity shall stay suspension of the license pending the outcome of the hearing.

(3) The only issues that may be determined in a hearing under this section are the amount of the support debt or support obligation, if any, whether or not a delinquency exists, and whether or not the obligor has entered into a payment plan.

(4) If an obligor fails to respond to a notice of intent to suspend a license, fails to timely request a hearing, or fails to appear at a regularly scheduled hearing, the obligor's defenses, objections, or request for a payment plan must be considered to be without merit and the support enforcement entity shall enter a final decision and order accordingly.

(5) If the support enforcement entity determines that the obligor owes a delinquency and that the obligor has not entered into a payment plan, the support enforcement entity shall issue an order suspending the obligor's license and ordering the obligor to refrain from engaging in the licensed activity. The support enforcement entity shall send a copy of the order suspending a license to the licensing authority and the obligor.

(6) The determinations of the department under this section are a final agency decision and are subject to judicial review under 40-5-253 and the Montana Administrative Procedure Act.

(7) A determination made by the support enforcement entity under this part is independent of any proceeding of the licensing authority to suspend, revoke, deny, terminate, or renew a license."

Section 15. Section 40-5-809, MCA, is amended to read:

"40-5-809. Effect of order on health benefit plans. (1) The duties and responsibilities under a plan pursuant to this part apply equally to a union or employer that serves as the administrator of a plan for a parent who is a member or employee.

(2) A copy of a medical support order requiring enrollment of a child in a health benefit plan may be submitted to the plan administrator by either parent, by the department, or by a third-party custodian, or by an employer-payor of either parent. The party submitting the order shall submit the child's name and birth date and the names and mailing addresses of the parents. If the child is a recipient of public assistance, the party submitting the order shall also submit the address of the department. If there is a third-party custodian of the child, the address of the third-party custodian must also be submitted. A copy of a medical support order may be served on the plan administrator by certified mail.

(3) Presentation of the medical support order to the plan administrator authorizes each parent, the department, if the department has interest, or the third-party custodian to receive pertinent notices from the plan administrator and to freely communicate and generally interact with the plan administrator in all respects regarding the child's benefits as fully and effectively as if the obligated parent were to do so personally.

(4) If a medical support order requires the child to be enrolled in a health benefit plan, presentation of the order to the plan administrator binds the plan to enroll the child in the plan as provided by this part.

(5) If a health benefit plan is available through the obligated parent's employer or other payor of income, presentation of the medical support order to the payor binds the payor to enrollment of the child in the plan and to automatically deduct premium payments required by the plan from the obligated parent's income and remit them to the plan provider for as long as the obligated parent is eligible for coverage.

(6)(a) Ambiguities and discrepancies in an order may not be used to unreasonably or unnecessarily delay health benefit plan coverage for a child.

(b) If more than one plan is available to an obligated parent and the medical support order fails to specify a plan or combination of benefits to be provided for a child or if there has been a change in plans due to a change in employment of the obligated parent or for some other reason, the parties and the department shall apply the medical support order so as to provide the child with coverage under a plan that has a reasonable cost and that provides the child with benefits closest to those described in the order."

Section 16. Section 40-5-824, MCA, is amended to read:

"40-5-824. Expedited enforcement procedures. (1) A parent, the department, or the third-party custodian may apply to the court for expedited enforcement procedures under this part. If the child receives medicaid, a parent or third-party custodian may apply to the department for and the department may on its own motion use expedited enforcement procedures under this part.

(2) Upon receipt of an application, the tribunal may issue an order requiring the obligated parent to appear and show cause why an order, penalty, fine, or any combination should not be determined, assessed, and entered under one or more provisions of this part. The obligated parent may appear at the hearing or submit an affidavit asserting the obligated parent's position and defense. The show cause order must be issued if the tribunal finds that:

(a) a medical support obligation has been established by order of a tribunal or by a court or administrative agency of another state, territory, or Indian reservation;

(b) the obligated parent is liable for medical costs and expenses or premium payments under this part;

(c) a parent receives a reimbursement payment from individual insurance or a health benefit plan and fails to promptly turn the payment over to the party who has paid or is paying the underlying bill of the health service provider;

(d) a parent is delinquent in paying to the other parent, the department, or a third-party custodian the parent's share of:

(i) copayments and deductibles required under the individual insurance or plan; or

(ii) costs and expenses not covered by individual insurance or a health benefit plan; or

(e) there are fines, penalties, or other financial sanctions that may be imposed under this part.

(3) Prior to applying for expedited enforcement, the applicant shall give the obligated parent notice of the claim under this part. The obligated parent may pay the claim within 30 days after receiving the notice. A copy of the notice must be given to the other parent, to the department, if the department is not the applicant or the tribunal hearing the matter and if public assistance is paid for the child, or to the third-party custodian. The other parent, the department, or the third-party custodian may participate in the proceedings as a party.

(4) An application for expedited enforcement may be based on any credible statements or evidence presented to the tribunal, including the sworn affidavit of:

(a) a health care provider who has provided care or benefits for the child;

(b) an authorized representative of the department, the health benefit plan, or the individual insurer;

(d) the third-party custodian of the child.

(5) The order to show cause must inform the obligated parent and any other party of the party's right to respond by affidavit. An affidavit may include written proof of payment. A hearing must be scheduled within 15 days after the date of service of the order on the obligated parent. A court hearing may be conducted by teleconferencing methods. A department hearing must initially be conducted by teleconferencing methods and is subject to the Montana Administrative Procedure Act. At the request of a party and upon a showing that the party's case was substantially prejudiced by the lack of an in-person hearing, the department may, following a teleconferencing hearing, grant a de novo in-person hearing. If an affidavit with written proof of payment is not received by the tribunal within 15 days and the obligated parent does not appear at the hearing, judgment may be entered for the relief requested. If an affidavit with written proof of payment is received but the obligated parent does not appear at the hearing, the tribunal may resolve the issues on the basis of credible documents and affidavits submitted.

(6) After issuing a show cause order and after opportunity for hearing, the tribunal shall promptly rule upon the issues. The proceeding must be dismissed if the tribunal finds written proof of payment of the liability and the amount of the liability is not contested by a party to the proceedings.

(7) If the tribunal finds the obligated parent liable, the tribunal shall enter the amount of the liability as an award against the liable parent. If requested to do so, the tribunal may make an award specifically in favor of a health care provider, health benefit plan, or individual insurer to the extent that an unsatisfied bill of the health care provider, health benefit plan, or individual insurer is part of the unsatisfied medical support liability involved. If the tribunal finds that the conduct, claim, or response of a party was frivolous or in bad faith, the tribunal may impose sanctions against the party including an award of costs and attorney fees.

(8) Awards under this section may be collected by any remedy available for the collection of delinquent child support, but claims for current or past-due child support have priority.

(9) An award under this section is a final order and may be appealed if the tribunal is a court or may be reviewed under Title 2, chapter 4, part 7, if the tribunal is the department."

Section 17. Section 71-3-302, MCA, is amended to read:

"71-3-302. Priority in case of death of employer. In case of the death of any employer, the wages of each miner, mechanic, salesperson, clerk, servant, and laborer for services rendered within 4 months next preceding the death of the employer, in the amount actually owed, are preferred debts under 72-3-807~~(1)(d)~~(1)(e) and must be paid before other claims against the estate of the deceased person."

Section 18. Section 72-3-807, MCA, is amended to read:

"72-3-807. Classification of claims as to priority of payment. (1) 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:

(a) costs and expenses of administration;

(b) reasonable funeral expenses and reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending ~~him~~ the decedent;

(d) debt for a current support obligation and past-due support for decedent's children pursuant to a support order as defined in 40-5-201;

~~(d)~~(e) debts with preference under federal and Montana law;

~~(e)~~(f) other federal and Montana state taxes;

~~(f)~~(g) all other claims.

(2) No A preference ~~shall~~ may not be given in the payment of any claim over any other claim of the same class, and a claim due and payable ~~shall~~ may not be entitled to a preference over claims not due."

NEW SECTION. Section 19. Effective date. [This act] is effective on passage and approval.

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