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                                                                 No. 99-214

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              1999 MT 256N




LARRY J. BONDERUD, O.D.,

Petitioner and Appellant,

v.

STATE OF MONTANA, ex rel. MONTANA

DEPARTMENT OF SOCIAL AND REHABILITATION

SERVICES APPEALS, ex rel. BOARD OF PUBLIC

HEALTH AND HUMAN SERVICES APPEALS,

Respondent and Respondent.




                                                           APPEAL FROM: District Court of the Ninth Judicial District,

In and for the County of Toole,

Honorable Michael C. Prezeau, Judge Presiding.




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COUNSEL OF RECORD:

For Appellant:

John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena, Montana

For Respondents:

Barbara Hoffman, Special Assistant Attorney General, Department

of Public Health and Human Services, Helena




Submitted on Briefs: September 23, 1999

Decided: October 21, 1999

Filed:




__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court.



¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶ The Department of Public Health and Human Services, which administers the
Montana Medicaid program, determined that optometrist Larry J. Bonderud should

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be excluded from participating in the program for two years as a penalty for
misbilling Medicaid claims. Bonderud contested that determination. A hearing
examiner appointed by the Department determined that only a one-year suspension
from participation in the Medicaid program was justified. Bonderud appealed to the
Ninth Judicial District Court, Toole County, which affirmed the hearing examiner's
decision. Bonderud now appeals to this Court. We affirm.

¶ The issues are whether the hearing examiner's conclusions of law are clearly
erroneous in light of her findings of fact and whether this case must be remanded to
the Department because the hearing examiner did not have the authority to modify
the amount of time Bonderud is suspended from the Medicaid program as an
optometric provider.

                                                                   Issue 1

¶ Did the District Court err in determining that the hearing examiner's conclusions
of law were not clearly erroneous in light of her findings of fact?

¶ In making his argument, Bonderud does not specifically identify any of the hearing
examiner's findings as unsupported in the record. He instead argues that in the
portion of the decision decided against him, the hearing examiner failed to consider
that the Department's rules were "vague or non-existent" or else simply ignored the
evidence.

¶ When reviewing an administrative agency's decision, district courts are governed
by the standards of review set forth in the Montana Administrative Procedure Act at
§ 2-4-704, MCA. Section 2-4-711, MCA, speaks to this Court's related appellate
authority. We review findings of fact to determine whether they are clearly
erroneous and conclusions of law to determine whether they are correct. Matter of
Kalfell Ranch, Inc. (1994), 269 Mont. 117, 122, 887 P.2d 241, 245.

¶ The hearing examiner found that between March 1989 and January 1992,
Bonderud had misbilled seventeen pairs of plastic eyeglass frames at the higher
Medicaid rate for metal frames. The hearing examiner found, however, that the
Department's definitions of metal and plastic frames were not clear and that this
misbilling had not therefore been established as intentional.



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¶ The hearing examiner further found that Bonderud had on four occasions
misbilled for complete repair of glasses when in fact he had provided patients with
new glasses, and that this resulted from his "extremely careless" billing. Medicaid
rules allow for new eyeglasses for adults no more often than every two years unless
the prescription has changed dramatically, which was not true as to Bonderud's
patients; therefore Medicaid would not have paid for new glasses for those patients.
The hearing examiner also found that while Bonderud had previously been fully
apprised of the Department's definitions of a new patient and an established patient,
he continued to misbill established patients as new patients, thereby receiving a
higher rate of Medicaid reimbursement than the rate to which he was entitled.

¶ The hearing examiner found and concluded that a sanction against Bonderud for
misbilling plastic frames as metal ones was not justified. However, she found and
concluded that Bonderud should be suspended from the Medicaid program for one
year because of his established misbilling and his history of improper billing and
failure to respond to remedial measures less punitive than suspension.

¶ While Bonderud points out that the District Court apparently misinterpreted the
number of cases of misbilling which were established, we conclude that any such
error was harmless. The extent of violations is only one of the factors to be
considered in imposing sanctions pursuant to Rule 46.12.403, ARM, which governs
here.

¶ Based upon the administrative record, the parties' pleadings, and the applicable
law, the District Court found that substantial evidence supported the hearing
examiner's findings. It concluded that Bonderud's one-year suspension from the
Medicaid program was not an abuse of discretion and was not erroneous. After
reviewing the record, we hold that the hearing examiner's findings of fact are
supported by substantial credible evidence and are not otherwise clearly erroneous
and that her conclusions of law are correct.

                                                                   Issue 2

¶ Must this case be remanded to the Department because the hearing examiner did
not have the authority to modify the amount of time Bonderud is suspended from the
Medicaid program as an optometric provider?



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¶ The record reflects that Bonderud suggested this contention in his briefs to the
District Court without substantive legal analysis. The District Court addressed the
argument only in its denial of Bonderud's petition for rehearing, finding no due
process violation in the hearing examiner's decision to reduce the length of
Bonderud's suspension.

¶ In his briefs to this Court, Bonderud asserts that the hearing examiner did not
possess authority to reduce the period of his suspension to one year and should have
instead remanded his case to the Department. He contends, without citing any
authority directly on point, that the scope of a hearing examiner's authority to
modify the length of a suspension is a jurisdictional issue which may be raised at any
time.

¶ It is not a court's obligation to conduct legal research on a party's behalf, guess at
the party's precise position, or develop a legal analysis which may lend support to
that position. See Johansen v. State, Dept. of Natural Resources, 1998 MT 51, ¶ 24,
288 Mont. 39, ¶ 24, 955 P.2d 653, ¶ 24. Given the paucity of briefing on this issue
before the District Court, we conclude that the issue was not squarely presented to
that court. It is well-established that this Court will not consider for the first time on
appeal an issue which was not raised in the district court. Matter of B.T.B. (1992), 254
Mont. 449, 454, 840 P.2d 558, 561. We decline to address the issue further.

¶ Affirmed.

/S/ J. A. TURNAGE



We concur:

/S/ KARLA M. GRAY

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER




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