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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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