53-1-405. Monthly payment amount. (1) A resident and a financially responsible person are liable for the resident's cost of care in an amount that the department determines that the resident or financially responsible person is able to pay. The department shall determine ability to pay based upon financial information and documentation obtained by the department through an investigation conducted as provided in 53-1-406.

(2) The department shall adopt rules that establish criteria and procedures for determining ability to pay. The criteria established by rules adopted under this section must address factors relevant to the person's ability to pay, including but not limited to:

(a) the amount of the resident's or financially responsible person's income, including the anticipated receipt of retroactive benefits, such as veteran's benefits or social security benefits;

(b) the amount of the resident's or financially responsible person's assets, including the availability of assets that are liquid or that are able to be readily converted to cash;

(c) the amount of the resident's or financially responsible person's fixed expenses for reasonable and necessary housing, utilities, transportation, medical care, food, and clothing;

(d) the amount of the resident's or financially responsible person's taxes and other mandatory payments, such as social security withholdings, insurance, child support, restitution, and court-ordered payments;

(e) the number of persons dependent upon the resident or financially responsible person for support;

(f) the amount of the resident's or financially responsible person's discretionary income;

(g) the resident's personal needs requirements while in the institution; and

(h) the extent to which requirement of a particular monthly payment or any monthly payment would impose an undue financial burden on the resident or financially responsible person.

(3) The department may determine ability to pay and assess charges up to the full cost of care but may require monthly payments in a lesser amount based upon:

(a) a resident's or financially responsible person's income-producing assets, such as stocks, bonds, certificates of deposit, or other similar assets;

(b) real property of the resident or the resident's spouse if:

(i) the property has been listed or advertised for sale, unless the sale proceeds are or will be used to purchase a home within 18 months or are used for primary residence living expenses; or

(ii) the property is not occupied as the home of the resident, the resident's spouse, or a dependent child or parent of the resident or the resident's spouse and if there is no reasonable expectation that the resident, the resident's spouse, or a dependent child or parent of the resident or the resident's spouse will return to occupy the property as a home; or

(c) the anticipated receipt of retroactive benefits, such as veteran's benefits or social security benefits.

(4) If the department has determined an ability to pay and has assessed charges but has required monthly payments in a lesser amount as provided in subsection (3), the department may bill and collect all or a part of the accumulated difference between the assessed charges and the minimum payment amount:

(a) upon sale or liquidation of the assets or real property;

(b) upon the actual receipt of retroactive benefits, such as veteran's benefits or social security benefits;

(c) upon determination of a current ability to pay; or

(d) from the resident's or financially responsible person's estate as provided in 53-1-412.

(5) The department may not require payment of a monthly amount that would place an undue financial burden on the resident or financially responsible person.

(6) The department shall refund to the resident or financially responsible person any payment made to the department for any month to the extent that the total payments received from the resident, financially responsible person, and third party exceed the resident's cost of care for that month.

(7) The fact that a managed care organization contracting with the department to administer a mental health managed care program is or may be liable to pay or has paid an amount to an institution with respect to the resident does not reduce or otherwise affect the resident's or financially responsible person's obligation to pay for the cost of care as provided in this part.

(8) The department shall provide a written notice and an opportunity for a hearing regarding a department determination of ability to pay to any resident or financially responsible person who is determined able to pay.

(9) In addition to providing the notice required by subsection (8), the department shall bill the resident or financially responsible person monthly for the amount determined in accordance with this section. The bill must state the amount due for the current month, the amount of any payments received during the billing cycle, and the total amount of unpaid costs of care that the department has determined the resident or financially responsible person is able to pay. The bill need not state the current or accrued full cost of care that is or would be payable by a third party.

(10) This section may not be construed to reduce the liability of a third party for the resident's full cost of care as provided in this part.