53-6-180. Waiver of recovery in cases of undue hardship -- rulemaking. (1) (a) A person with a recorded interest in real property subject to a lien under 53-6-171 through 53-6-188 or any other interested person may apply to the department, in accordance with procedures established by department rule, for a waiver of recovery because of undue hardship. The department shall waive its recovery under this section, in whole or in part, if it determines that recovery would result in undue hardship as defined by department rule.
(b) The department shall adopt rules, consistent with 42 U.S.C. 1396p, as may be amended, and implementing federal regulations and policies, establishing procedures and criteria for granting undue hardship exceptions under this section. The rules must include but are not limited to rules addressing the following:
(i) a description of the circumstances considered to constitute an undue hardship;
(ii) the procedures by which an individual may seek an undue hardship exception;
(iii) the persons entitled to an undue hardship exception; and
(iv) whether an exception is partial or temporary and the circumstances under which a partial or temporary exception may be granted.
(c) A person aggrieved by a department determination on an application for an undue hardship exception may assert a claim of entitlement to an undue hardship exception in an action filed under 53-6-177 to challenge issuance of the writ. If a person claims entitlement to an undue hardship exception as part of that action, the court shall make a determination on the undue hardship claim in accordance with the department's rules adopted pursuant to this section. Department denial of all or any part of the relief requested in an application for an undue hardship exception under this section may be reviewed by a district court only through filing of an action as provided in this subsection (c). Denial does not grant a right to a contested case hearing or a right to judicial review under the Montana Administrative Procedure Act or the department's rules.
(2) The department may waive recovery of recoverable medical assistance secured by a lien imposed under 53-6-171 if the department determines that recovery would not be cost-effective. In determining whether recovery would be cost-effective, the department may consider but is not limited to consideration of the following factors:
(a) the estimated cost of recovery;
(b) the amount reasonably likely to be recovered;
(c) the likelihood that recovery by the department will cause a person to become eligible for public assistance; and
(d) the importance of the case or the issues in the case and the need for judicial interpretation of issues that may recur with respect to the administration or implementation of 53-6-171 through 53-6-188.
History: En. Sec. 17, Ch. 492, L. 1995.