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'PIflR 2:; 1389 

Submitted on briefs: March 24, 1980 

~ecided: MAR 2 6 1989 
Mr. 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 

Services Appeals concerning the denial of medical assistance. 

The ~istrict Court affirmed the administrative decision, and 

appellant brings this appeal. 

Appellant is a twenty year old female. She was born in 

Great Falls, Montana, and has lived her entire life there. 

In the spring of 1978 she left Great Falls to attend Western 

Montana College in Dillon, Montana. During the period of 

time she attended school, she returned to her home nearly 

every weekend and considered Great Falls her permanent 

address. The testimony indicates that she intends to make 

Great Falls her home when she finishes school. 

In the summer of 1978 appellant found employment with 

the Gallatin National Forest on a summer job that was to 

assist her in her education, and she indicated that she 

intended to return to college 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 to return to her 

home in Great Falls. As a result of the accident, she was 

incapacitated three months with the following medical and 

physical problems: compound fracture of her left leg, 

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 appellant nor her parents had ever received any 

welfare assistance prior to the accident. Her family consisted of seven members and the income of the family was 

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 it had 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 county medical 

benefits might be available in their notice of denial from 

the social security administration some two months after 

applying. Appellant then applied for medical benefits. Her 

application was 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 limit proper? 

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 for medical aid and hospitalization for indigents: 

" (1) Except as provided in other parts of this 

title, medical aid and hospitalization for 

county residents and nonresidents within 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 to provide medical 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), 175 Mont. 478, 575 P.2d 48, 35 St.Rep. 

166, 169; Saint Patrick Hospital v. Powell County (1970), 

156 Mont. 153, 477 P.2d 340. 

It should be noted that in Saint Patrick Hospital, this 

Court said that under the welfare statute, an indigent 

person ". . . include[sl those persons who do not have the 

present or future hope of resources sufficient to pay for 

all the medical and hospital services required in emergency 

instances." 477 P.2d at 343. 

In Saint Patrick Hospital this Court also held that ". 

. . the State Welfare Department has the right to set up 

standards so long as they are reasonable. . ." 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 for medical aid and hospitalization care. 

" (a) Application by a recipient for payment of 

medical services rendered to him shall be effective retroactively in the minimum amount of 

five days prior to date of notification to the 

county of the intent of the recipient to apply 

for payment of said medical services. 

"(i) Retroactivity beyond the above five-day 

limit shall be allowed at the discretion of 

the county welfare board upon good cause shown 

for failure to meet 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 as provided in R.C.M. 

1947, Title 71, Chapter 3, and meet the requirements as set forth in this Sub-chapter." 
As previously noted, it is well established in this 

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 after receiving medical services. At no time was her 

indigency an issue in the case. 

It has been held that where a statute makes it the duty 

of the state or local authorities to provide for indigent 

persons, that duty is mandatory and must be strictly complied 

with. See, Wayne Township v. Lutheran Hospital (1974), 160 

1nd.App. 427, 312 N.E.2d 120; State ex rel. Arteaga v. 

Silverman (1972)r 56 Wis.2d 110, 201 N.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 limit for the 

application for funds in cases such as this for medical 

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 is enacted, and a regulation in conflict with that 

statute is without effect. See, 2 Am.Jur.2d ~dministrative 

Law - 8289, and Bell v. Dept. of Licensing (19791, - Mont. 

, 594 P.2d 331, 36 St.Rep. 880. "It is axiomatic that a 

statute cannot be changed by administrative regulation," 

State ex rel. Swart v. Casne (1977), 172 Mont, 302, 308, 564 

P.2d 983. 
Clearly in this case the administrative regulation 

providing that the application be made within five days of 

the provision of medical services changes the statute which 

does not require an indigent person to apply for benefits in 

any particular time. The spirit and the purpose for public 

assistance statutes is to provide for those citizens who are 

in "need." One must ask himself, in what way is this ideal 

furthered by distinguishing between those who apply for the 

benefits within five days of receiving medical services and 

those who apply after five days? The very injustice is 

apparent in such a case as here, where appellant was without 

knowledge of the county medical program, always acted in 

good faith, was for two weeks in a 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 

is patently 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 rule making power to establish a more specific guideline for the benefit of both the agency and the 

applicant," we find that in so ruling it erred and that 

appellant was deprived of medical benefits. 

The next issue raised is whether or not 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 

shall be allowed at the discretion of the county 

welfare board upon good cause shown for failure 

to meet 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 appellant was 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 appellant was 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 three months. 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 decision was arbitrary and 

capricious. No reason was provided for the agency's decision 

that appellant did 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 has made a good faith and 

reasonably diligent effort to get this assistance from the 

county and that it was an abuse of discretion for the welfare department to determine that she did not have good 
cause for applying more than five days after receiving the 

medical assistance. 

The third issue presented for our consideration is 

whether appellant is a 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 as to receiving public 

assistance. There the Court noted: 

"At the end of the Moores' year of residence in 

Montana, subsequent to returning from Colorado, 

the Moores were residing at Havre, in Hill 

County, attending Northern Montana College and 

living in the married couples housing unit. 

Under a strict interpretation of section 71- 

302.2 [R.C.M. 19471, one would conclude that 

Hill County is the county of financial responsibility. However, a presumption arises that 

the county wherein a college or university lies 

is not 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 this reason, it is customary to look to the parents' residence in 

order to determine the residence of the student. 

Otherwise, the county in which the college lies 

would be unduly burdened with providing for the 

social welfare of students." 568 P.2d at 1224. 

Here appellant was born and raised in Cascade County. 

Her parents and family live in Cascade County. She gives 

Cascade County as her permanent address and intends to 

reside there after she finishes school. The fact that she 

accepted temporary summer employment in Gallatin County does 

not change her place of residence. Under the rule established in County 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 District Court is reversed. 
We concur: 

7-4- 4.. kw, Chief Justice 

c Justices