(1) For the purposes of this rule:

(a) "assets" include, but are not limited to:

(i) cash on hand;

(ii) bank, credit union, savings and loan, and brokerage accounts;

(iii) securities, excluding those held as part of a qualified retirement plan;

(iv) cash-value insurance policies;

(v) real and personal property, excluding the claimant's primary residence and one primary vehicle.

(b) "average monthly cash flow" means six times the amount obtained by subtracting average monthly expenses from average monthly income, even if the amount is less than zero.

(c) "average monthly expenses" means the amount of all necessary and allowed expenses, converted to a monthly basis if not incurred in that manner, incurred by the claimant at the time of the claimant's request for a financial hardship waiver.

(d) "average monthly income" means the amount of all income, converted to a monthly basis if not paid in that manner, accruing to the claimant at the time of the claimant's request for a financial hardship waiver.

(e) "income" includes, but is not limited to:

(i) wages, salaries, and commissions;

(ii) interest and dividends;

(iii) net business proceeds;

(iv) rents;

(v) pensions;

(vi) disability payments; and

(vii) alimony.

(f) "necessary and allowable expenses" are limited to:

(i) rent or mortgage payments;

(ii) insurance, taxes, utilities, basic phone service;

(iii) groceries and household supplies for a primary residence, but not to exceed $300 per month for the claimant and $100 per month for each of the claimant's dependents that reside in the claimant's household;

(iv) medical expenses not paid by insurance;

(v) loan payments, insurance, and expenses for a primary vehicle;

(vi) work-related child and disabled dependent care expenses;

(vii) child support payments; and

(viii) alimony or maintenance payments.

(2) Upon written notice from the department that claimant received an overpayment, a claimant may submit a written request asking the department to waive recovery of the benefit overpayment as provided in 39-51-3206, MCA.

(3) The department may waive recovery of all or a portion of a benefit overpayment that occurred through no fault of the claimant and involved no fraud as defined in ARM 24.11.1209, when one or more of the following circumstances exist:

(a) recovery of the benefit overpayment would cause a long-term financial hardship on the claimant, as outlined in (5);

(b) benefit overpayment was the result of an incorrect monetary determination by the department due to minor errors in employer reporting;

(c) benefit overpayment resulted from department failure to consider relevant written documentation provided in a timely manner by a claimant, employer, or third party prior to the department's determination or redetermination; or

(d) benefit overpayment resulted from claimant's reliance upon erroneous written information provided by department.

(4) Benefit overpayment does not constitute department error when the implementation of new state or federal law requires the department to revise a claimant's state benefit claim or monetary determination and to reduce or deny benefits retroactively.

(5) No sooner than six months after a notice of benefit overpayment, claimant may seek a financial hardship waiver by providing specific financial information to the department. The department shall determine whether recovery of the benefit overpayment would cause a long-term financial hardship on the claimant, as provided in (3)(a), using the following process:

(a) the claimant requesting a financial hardship waiver shall provide the department documentation of monthly household income, assets, and expenses on a form provided by the department and may be required to provide further information if needed for the department's determination. The department may require verification of any financial information provided. The department may also disallow or adjust any claimed expenses that the department deems to be unreasonably excessive.

(b) the department shall determine recovery of the benefit overpayment to cause a long-term financial hardship on the claimant when the department finds:

(i) the sum of the claimant's average monthly household cash flow and the net value of the claimant's household assets equals an amount less than the identified amount of the benefit overpayment; and

(ii) no evidence demonstrates that the sum of claimant's average household monthly cash flow and net value of the claimant's household assets are likely to exceed the amount of the benefit overpayment within 12 months of the date of the claimant's request for waiver.

(6) After consideration of a claimant's request for waiver, the department shall notify the claimant of the decision to grant or deny the request and of the claimant's right to appeal under 39-51-2402 and 39-51-2403, MCA.

(7) A claimant whose request for a financial hardship waiver has been denied may submit a new request for waiver when claimant's financial situation has significantly changed since the denied request was filed.

(8) Repayment of a benefit overpayment by offset of benefits shall continue from the date claimant's written request for waiver is received by the department until the department's decision becomes final. When the final decision approves claimant's request for waiver, the department shall reimburse claimant for repayments collected after the date the claimant's written request for waiver was received by the department.