### No. 79-30 

### IN THE SUPREME COURT OF THE STATE OF MONTAhTA

MELANIE MICHELS, Petitioner and Appellant,

VS. 

### DEPARTMENT OF 

### SOCIAL AND REHABILITATION SERVICES OF THE STATE OF MONTANA; CASCADE COUNTY, a political subdivision of the State of Montana; and the CASCADE COUNTY WELFARE BOARD, Respondents and Respondents.

Appeal from: ~istrict Court of the Fourth Judicial ~istrict, In and For the County of Cascade. Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Richard Ganulin, Great Falls,Montana For Respondents: David A. Scott, Helena,Montana J. Fred Bourdeau, County Attorney, Great Falls,Montana Alexander and Baucus, Great Falls,Montana

Filed: 

## f'PIflR2:; 1389 Submitted on briefs: March 

### 24, 1980 

### ~ecided:

## MAR2

## 6 

# 1989Mr. Justice John Conway Harrison delivered the Opinion of the Court.

The appellant sought a judicial review of an adverse decision of the State Board of Social and Rehabilitation ServicesAppeals concerning the denial of medical assistance. The 

### ~istrict Court affirmed the administrative decision, and appellantbrings this appeal. Appellant 

### is a twenty year old female. She 

### was born in Great Falls, Montana, and has lived her entire lifethere. In the spring of 1978 she leftGreat Falls to attend Western Montana College inDillon, Montana. During the period of time she attended school, she returned toher home nearly every weekend and considered Great Falls her permanent address. The testimony indicates that she intends tomake Great Falls her home when she finishes school. In the summer of 1978 appellant found employment with the GallatinNational Forest on a summer job that was to assisther inher education, and she indicated that she intended toreturn tocollege that fall. On August 5, 1978, appellant was involved in a head-on automobile collision. The driver of the other vehicle was killed, and appellant was seriously injured. She was taken to the emergency room of Bozeman Deaconess Hospital, was in the intensive care unit for several days and remained in the hospital two weeks before being released toreturn toher home inGreatFalls. As a result of the accident, she 

### was incapacitated three months with the following medical and physical problems: compound fracture of her leftleg, broken chin, broken arm, and four missing teeth. She was unable to go out on her own until approximately three months after the accident. Total medical expenses resulting from this accident were $6,500.

### Neither appellantnor her parents had ever received any welfare assistance prior to the accident. Her family consisted of seven members and the income of the familywas approximately $9,000. Following the accident, a relative recommended that appellant's mother apply for disability benefits from the social security administration to help defray medical bills. Such an application was made but denied two months after ithad been made. No one at the hospital or no medical personnel contacted appellant's family concerning the availability of county medical benefits. They learned that countymedical benefits might be available in their notice of denial from the social security administration some two months after applying. Appellant then applied formedical benefits. Her applicationwas denied since she applied later than five days after receiving the medical care. Three issues are presented for our consideration: 1. Is the five-day rule valid? 2. 

### Was the finding of a lack of good cause for extending the five-day limitproper? 3. Was appellant a resident of Cascade County for the purposes of county medical insurance? Section 53-3-103, MCA, provides broad coverage of medical assistance for those persons who, finding themselves under calamitous circumstances because of medical costs, look to the county to obtain coverage. That section provides formedical aid and hospitalization for indigents: 

## " (1)Except as provided in other parts of this title,medical aid and hospitalization for county residents and nonresidentswithin the county unable to provide these necessities for themselves are the legal and financial responsibility of the county commissioners and are payable from the county poor fund. 

# . 

# ."Counties of this 

### state have the obligation toprovide medi

### cal assistance to indigents under this section. See, Flathead Health Center v. Cty. of Flathead (1979), Mont

# .

, 598 P.2d 

### 1111, 36 St.Rep. 1465, 1469; Wheatland County

v. Bleeker (1978), 175Mont. 478, 575 P.2d 48, 35 St.Rep. 166, 169; SaintPatrick Hospital v. Powell County (1970), 156Mont. 153, 477 P.2d 340. It should be noted that inSaintPatrick Hospital, this Court said thatunder the welfare statute, an indigent person

# ".

. . include[sl thosepersons who do not have the present or futurehope of resources sufficienttopay for allthe medical and hospital servicesrequired inemergency instances." 477 P.2d at343. In SaintPatrick Hospital thisCourt also held that

# ".

. . the StateWelfare Department has the right to 

### set up standards so long asthey arereasonable. 

# . ." 477 P.2d at 343. In interpreting the above regulations, the Department adopted an administrative regulation, ARM §46-2.10(38)- S101950, which provides: "GENERAL 

### (1)Medically Needy persons may apply to county welfare departments in the county in which they 

### are residing formedical aid and hospitalization care. 

### "(a)Application by a recipient for payment of medical servicesrendered tohim shall be effectiveretroactively inthe minimum amount of fivedays prior todate of notification to the county of the intentof the recipient to apply for payment of saidmedical services. 

### "(i) Retroactivity beyond the above five-day limitshall be allowed atthe discretion of the county welfare board upon good cause shown for failure tomeet said five-day 

### limit. 

### "(2) 'Medically Needy Persons' for the purposes of this Sub-chapter 38 of the Economic Assistance Division are those persons who are eligible for General Relief asprovided inR.C.M. 1947, Title71, Chapter 3, and 

### meet the requirements as setforth inthis Sub-chapter."As previously noted, 

### it 

### is

### well established inthis jurisdiction that indigents have the right to county medical assistance. Appellant here applied for such assistance two months after being released from the hospital. She was denied assistance simply because she applied 

### later than five days afterreceiving medical services. Atno 

### timewas her indigency an issue inthe case. It has been held thatwhere a statutemakes it the duty of the stateor local authorities toprovide for indigent persons, that duty 

### ismandatory and must be strictly complied with. See, Wayne Township v. Lutheran Hospital (1974), 160 1nd.App. 427, 312 N.E.2d 120; Stateex 

### rel. Arteaga v. Silverman (1972)r 56 Wis.2d 110, 201N.W.2d 538; Mooney v. Pickett (1971), 94 Cal.Rptr. 279, 483 P.2d 1231; Lawson 

### v. Shuart (1971), 323 N.Y.S.2d 488; Williams v. Shapiro (1967), 

### 4 Conn.Cir. 449, 234 A.2d 376. We find that the provision of 

### a five-day 

### limitfor the application for funds incases such asthis formedical insurance 

### are invalid, for unless regulations effectively effectuate the purpose of the statute, they 

### are invalid. See, Desert Environmental Con. Ass'n v. Public Util. Com'n (1973), 106 Cal.Rptr. 31, 505 P.2d 223. Whatever force and effect the regulation has must derive from the statute under which 

### it 

### isenacted, and a regulation inconflictwith that statute 

### iswithout effect. See, 2 Am.Jur.2d ~dministrative Law -8289, and Bellv. Dept. of Licensing (19791, 

### -Mont.



## , 594 P.2d 331, 36 St.Rep. 880. "Itis axiomatic that a statutecannot be changed by administrative regulation," State ex 

### rel. Swart v. Casne (1977), 172Mont, 302, 308, 564 P.2d 983.Clearly inthis case the administrative regulation providing that the application be made within fivedays of the provision of medical serviceschanges the statutewhich does not require an indigentperson to apply for benefits in any particular time. The spiritand the purpose forpublic assistance statutes 

### is toprovide for those citizens who 

### are in "need." One must ask himself, inwhat way 

### is this ideal furthered by distinguishing between those who apply for the benefits within fivedays of receiving medical services and those who apply after fivedays? The very injustice 

### is apparent in such 

### a case ashere, where appellantwas without knowledge of the county medical program, always acted in good faith, was for two weeks ina hospital away from the county of her home and only applied after two months of hospital and home care. On its face, the five-day rule here 

### ispatently unreasonable. While the 

### District Court ruled that the five-day rule did not engraft "an additional requirement on the statutory provision, but rather 

### is a reasonable and necessary exercise of the agency's rulemaking power to establish a more specificguideline for the benefit of both the agency and the applicant," we find that

### in soruling 

### it erred and that appellant

### was deprived of medical benefits. The next issue raised 

### iswhether ornot appellant failed to show good cause forwaivingthe five-day rule. Again, ARM 546-2.10 (38) -S101950 (1) (a)(i) provides: "Retroactivity beyond the above five-day 

### limit shallbe allowed atthe discretion of the county welfare board upon good cause shown for failure tomeet said five-day limit." The hearings officer, the board and the District Court all found that appellant did not give good cause for failure to

### meet the five-day limit,noting that her parents or she could have telephoned or that the medical vendor or some other person could have made application for the aid within the five-day period. Appellant argues that as a matter of law she has shown good cause for failure to apply for the medical benefits within five days of receiving the services. Neither she nor her family had ever received any welfare benefits in the past. They had no knowledge of the county medical program until two months after appellantwas released from the hospital in a county several hundred miles away from her home. What the hearings officer, the board of county commissioners,and the District Court failed to take into consideration in the fact situation here is that appellantwas involved in an accident where one person was killed;was in an intensive care situation for 

### a matter of days; remained in the hospital away from her home for over two weeks; and was unable to go out of her home for nearly threemonths. Under these facts, this Court can and has reversed administrative decisions that are arbitrary or capricious or constitute abuse of discretion on the part of the administrative authority. Here the administrative decisionwas arbitrary and capricious. No reason was provided for the agency's decision that appellantdid not have good cause for applying more than five days after receiving the medical services. The Cascade County welfare department is obliged to assist indigents in paying for medical services. In light of this we find that appellant hasmade a good faith and reasonably diligent effort to get this assistance from the county and that itwas an abuse of discretion for the welfare department to determine that she did not have goodcause for applying more than fivedays after receiving the medical assistance. The third issuepresented for our consideration 

### is whether appellant 

### isa resident of Cascade County for the purposes of county medical assistance. This Court in

### a recent case, County of Blaine v. Moore (1977), 174 Mont. 114, 568 P.2d 1216, 34 St.Rep. 1051, considered the question of the residency of college students astoreceiving public assistance. There the Court noted: "At the end of the Moores' year of residence in Montana, subsequent toreturning from Colorado, theMoores were residing atHavre, inHill County, attending Northern Montana College and living 

### inthemarried couples housing unit. Under a strictinterpretation of section 

### 71- 302.2 [R.C.M. 19471, one would conclude that HillCounty 

### is the county of financial responsibility. However, 

### a presumption 

### arises that the county wherein a college or university 

### lies isnot the resident county of the attendant students. Generally, students travel from the residence of their parents, attending college only during the academic year, and return to their parents' residence on weekends, holidays and summer breaks. For thisreason, it 

### is customary to look to the parents' residence in order todetermine the residence of the student. Otherwise, the county inwhich the college 

### lies would be unduly burdened with providing for the socialwelfare of students." 568 P.2d at1224. 

### Here appellantwas born and raised inCascade County. Her parents and family live inCascade County. She gives Cascade County asher permanent address and intends to reside there after she finishes school. The fact that she accepted temporary 

### summer employment inGallatin County does not change her place of residence. Under the rule established inCounty of Blaine v. Moore, supra, appellant is found to be a resident of Cascade County for purposes of county medical assistance. The judgment of the DistrictCourt 

### isreversed.We 

### concur: 

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# kw, Chief Justice

Justices 

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