(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 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 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 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 with the claimant;

(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) Not sooner than six months following the date the claimant was given notice of the overpayment, a claimant may request the department waive recovery of a benefit overpayment as provided in 39-51-3206 , MCA.

(3) The department may waive recovery of all or a portion of a benefit overpayment if:

(a) the benefit overpayment is not a fraudulent benefit overpayment as defined in ARM 24.11.468(1) ;

(b) it is shown to the satisfaction of the department that recovery of the benefit overpayment would cause a long-term financial hardship on the claimant; and

(c) the benefit overpayment was not the result of a reversal, modification, or revision on appeal of an earlier determination, redetermination, or decision which allowed the payment of benefits, unless the benefit overpayment was the result of a monetary determination that was revised due to employer reporting error or clerical error on the part of the department or an agent of the department.

(4) In determining whether recovery of the benefit overpayment would cause a long-term financial hardship on the claimant, as provided in (3) (b) , the department takes into account the claimant's average household cash flow and net value of household assets.

(a) The claimant requesting a waiver is required to provide documentation of 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 it deems to be unreasonably excessive.

(b) Recovery of the benefit overpayment will be deemed to cause a long-term financial hardship on the claimant if the department finds:

(i) that the sum of the claimant's average household cash flow; and

(ii) the net value of the claimant's household assets equals an amount less than the amount of the benefit overpayment in question; and

(iii) finds no evidence that the claimant's average household cash flow or the net value of the claimant's household assets are, within 12 months preceding the date of the claimant's request for waiver, likely to increase in an amount that would cause the sum of the two to exceed the amount of the benefit overpayment.

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

(6) A claimant whose request for waiver has been denied only by reason of the provisions of (3) (b) may submit a new request for waiver if the claimant's financial situation has significantly changed since the denied request was filed.

(7) Repayment of a benefit overpayment by offset of benefits continues during the time a claimant's request for waiver is under consideration and until a determination either allowing or denying the claimant's request for waiver, including any appeals decision, becomes final.  If a request for waiver is allowed, the claimant is reimbursed for any repayments collected after the date the claimant's request for waiver was received by the department.