No. 13578 INTHE SUPREME COURT OF THE STATE OF MONTANA

COUNTY OF BLAINE, STATE OF MONTANA, Petition= and Appellant,

EDWIN S. MOORE and ST. JAMES COMMUNITY HOSPITAL, Respondent and Respondent.

Appeal from: DistrictCourt of the Twelfth Judicial District, Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellant: Solem and MacKenzie, Chinook, Montana Stuart C. MacKenzie argued, Chinook, Montana For Respondent: Corette, Smith and Dean, Butte, Montana Gerald R. Allen argued, Butte, Montana

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6- . :- >. Filed: I Submitted: June 1, 1977 Decided: 

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### ;CJT~,Mr. Justice Gene B. Daly delivered the Opinion of the Court. The County of Blaine, State of Montana, appeals from the final judgmentand order of the district court, Blaine County. The district court affirmed the administrative decisions of the Departmentof Social and Rehabilitation Services (SRS) which ordered Blaine County, as the county of financial responsibility, to pay approximately $30,000 inmedical debts incurred by Edwin S. Moore and his wife. Edwin S. Moore and his wife,Marlene Moore, were married March 9, 1969. Prior to moving to Montana in the early fall, 1969, Mr. Moore was employed in a teaching position in Oklahoma. Moore is of Indian descent from the Creek Tribe in Oklahoma. Marlene Moore is an enrolled member of the Fort Belknap IndianReservation. Upon theirmarriage the Moores took up residenceon the ranch of Marlene's parents located at Lodgepole, Montana, in Blaine County. In February, 1970,Moores moved to Denver, Colorado,where he was employed as an iron worker on construction jobs until December, 1972. Marlene returned to her parents' ranch on December 24, 1972 and Moore joined her the following day. The Moores resided on the ranch at Lodgepoleuntil September, 1973when they moved to Havre in Hill County. Both attended Northern Montana College and resided in amarried studenthousing unit. The Moores returned to the ranch at Lodgepole onweekends and over Christmas vacation. InApril, 1974,Moores moved out of the married student housing unit and transported all their personal property back to the ranch at Lodgepole. Neither of the Moores attended classes during spring quarter, but during the summer, 1974,Moore commuted from the ranch at Lodgepole to Northern Montana College. In September, 1974,Moore obtained employmentas an Indian counsellorwith the Anaconda Public School System. The Moores moved to Anaconda, Deer Lodge County. Moore was assisted in obtain-ing this employment by the EmploymentAssistance Office of the Bureau of IndianAffairs, Fort Belknap IndianReservation. The Bureau of Indian Affairs paid the Moores' moving expenses and provided an initial subsistanceallowance. On August 2, 1974, when the Moores filed the Application for Economic Assistance with the Bureau of IndianAffairs,Marlene also filled out a statementofmedical history stating that she was pregnant. On September 27, 1974,Marlene was admitted to Community Hospital inAnaconda where she gave birth to a baby girl. She

was released from Community Hospital on October 3, 1974. Complications from the pregnancy required that she be readmitted to Community Hospital on October 7, 1974. She was transferred, under emergency conditions, to St. James Community Hospital, Butte, Montana, Silver Bow County, on October 23, 1974. Marlene

was not released from St. JamesCommunity Hospital until December 28, 1974. In themeantime, Moore had been suspended fromhis employmentwith the Anaconda Public School System. The Moores returned to Lodgepole and have resided there since her release. The Moores have incurred medical expenses of approximately $30,000and are without funds to pay these medical debts. Marlene

was insured under the Blue Cross of Montana health care plan provided by Moore's employer. However,benefits for obstetrical

care or complicationsof pregnancy are available only if child birth occurs after nine months of continuous familymembership. The Moores failed to satisfy the waiting period. On October 8, 1974,Donald Martin, Service Unit Director of the Fort Belknap Public Health Service,denied Indian Health Service coverage formaternity care to Mrs. Moore on the ground "ourcontractmedical care funds are limited to only those persons who are permanent residentsof this serviceunit delivery system

area.

### "The Moores subsequently filed in Deer Lodge County an Application for General Assistance County Medical Benefits. Thewelfare department, Deer Lodge County,on the basis of the application submitted,determined that Blaine Countywas the place ofMoores' residence. Deer Lodge County forwarded the application to Blaine County by letter dated December 10, 1974. Blaine County denied Moores' application on March 7, 1975, on the grounds the Public Health Servicewas the resourceresponsible for satisfying the medical debts of the Moores and Mr. Moore's income exceeded Blaine County's standard for determining eligibility for general assistance. On April 14, 1975,Moore requested a fair hearing before a hearings officer of the Department of Social and Rehabilitation Services,State ofMontana,because of Blaine County'sdenial of county medical assistance. Additionally, on April 15, 1975,St. James Community Hospital requested a fair hearing forMoore. On June 19, 1975,a hearing on thematter was held in Blaine County, Chinook, Montana. Moores were not present at the hearing. Blaine County objected to SRS granting a fair hearing to St. James CommunityHospital on the grounds St. James Community Hospital lacked standing to request a fair hearing and the hospital failed to obtain written authorization to act on behalf of the Moores. Blaine County soughta continuance of the fair hearing

on the ground the Moores failed to satisfy residency requirements, a condition precedent for submitting to Blaine County anApplication for General Assistance County Medical Benefits. The hearings officer denied Blaine County'smotions and proceeded with the hearing while allowing Blaine County to introduce evidence regarding the issue of Moores' residence. On July 1,1975,the SRS hearings officer issued Fair Hearing DecisionNo. 163,which concluded as a matter of law:"Mr. and Mrs. Moore must be classified as indigent persons entitled tomedical aid and hospitalization, who were unable to provide suchnecessities for themselves because of a catastrophic misfortune resulting in a medical debt of approximately $30,000.00. Section 71- 308,R.C.M. 1947, indicatels that 'Medicalaid and hospitalization for persons unable to provide suchnecessities for themselves are hereby declared to be the legal and financial duty and responsibilityof the Board of County Commissioners.' In this particular case,Hill County becomes the county of financial responsibility

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## *." The hearings officer ordered: "ThatBlaine County be upheld in their denial of General Assistance County Medical to Edwin and Marlene Moore since the county of financial responsibility is Hill County and that the Hill County Board of Commissionersbe directed to pay Mr. and Mrs. Moore's medical claims resulting in approximately $30,000.00." The hearings officerbased his order on the finding that the Moores, while residing in themarried student housing unit at Northern Montana College in Hill County, were residents of Hill County pursuant to the provisions of section 71-302.2, R.C.M.

On July 9, 1975,St. James Community Hospital appealed from Fair Hearing Decision No. 163 so far as it related to the finding thatMoore was a resident of Hill County for purposes of determining eligibility to receive aid. Hill County also filed an appeal claiming Hill Countywas not notified of the fair hearing, as required by section 82-4209, R.C.M. 1947; Hill County

was denied due process of law; and Moore was a residentof Blaine County. On August 29, 1975,the Board of Social and Rehabilitation Appeals issued its decision holding: "1. St. James Community Hospital isproperly a party to the action; "2. That Mr. Moore does not now have, nor is it reasonably expected that he will have in the foreseeable future,resourceswhich will enable him to pay themedical debts relating to hiswife's illness;"3. That a separatehearing be held to determine residence and the county of financial responsibility and that all parties involved be present and be given an opportunity to be heard. Based upon the informationpresented at the hearing, the ~earings Officer shall determine the county of residence." On October 2, 1975,Blaine and Hill Countiespetitioned the district court,Blaine County, for review of the findings of the hearings officer in Fair Hearing DecisionNo. 163 and reviewof the administrative order and decision of the Board of Social and RehabilitationAppeals. St. JamesCommunity Hospitalmoved to dismiss the petition on the ground Blaine and Hill Counties had failed to exhaust all administrative remedies available to them. On November 10, 1975,the district court issued an order dismissing Blaine and Hill counties'petition for reviewof administrative proceedings on the grounds a final decision on all issues before the administrative agency had not been rendered and the appeal of the petitionerswas premature. A rehearing of Fair Hearing Decision No. 163was held in Blaine County, Chinook,Montana on November 18, 1975. As requested by the Board of Social and Rehabilitation Appeals in their decision ofAugust 29, 1975, the rehearingwas limited to a determination of the Moores' county of residence and the county of financial responsibility. Moores were present at the rehearing. St. James Community Hospital presented a written authorization, signed by Moores,allowing St. James Community Hospital to act in behalf of the Moores, in connectionwith the rehearing. The authorizationwas dated November 18, 1975. On November 20, 1975, the SRShearings officer issued rehearing of Fair DecisionNo. 163which concluded as amatter of law: "Inconclusion,Mr. and Mrs. Moore are residents of Blaine County. When returning to Montana from Colorado, they became new residents of the State beginning December 24, 1972. From this date on, they considered Blaine County as their residenceuntil actually moving to Anaconda, Montana, in September 1974. However, the Moores, for welfare purposes,would remain residentsof Blaine County, even though residing in Deer Lodge County, for up to one (1)year but, in this case, they chose to return to Blaine County in December 1974." The hearings officer ordered: "That the original order of July 1,1975, upholding Blaine County'saction to deny General Assistance County Medical and directing Hill County to pay Mr. and Mrs. Moore's medical claimsbe hereby amended and it is hereto ordered that Blaine County is the county of financial responsibility based on evidence of residency provided by Mr. and Mrs. P4oore at the rehearing held onNovember 18, 1975. Blaine County is, therefore, the county of financial responsibility and is directed to pay Mr. and Mrs. Moore's medical debts incurred during the time in question of approximately $30,000.00." Blaine County appealed the rehearing of Fair Hearing Decision No. 163 to the Board of Social and RehabilitationAppeals. The Board issued its decision on January 28, 1976, affirming the revised order of the hearings officer. On February 27, 1976,Blaine County filed a petition in the district court, Blaine County, seeking judicial review of the SRS administrativeproceedings, pursuant to section 82-4217,R.C.M. 1947. The district court, after hearing oral arguments, reviewing and considering the administrative proceedings and briefs of counsel, affirmed the administrative decisions of SRS,having failed to find a basis for reversal ormodification of those administrative decisionsunder the provisions of section 82-4217, R.C.M. 1947. Judgment was accordingly entered for respondents

on July 13, 1976. Blaine County appeals to this Court from the finalorder and judgment of the district court,Blaine County. Blaine County raises the following issues for review: 1. Whether the hearings officer erred when he denied Blaine County's motions for dismissal or continuance in Fair Hearing No. 163when the claimants (Moores)failed to appear? 2. Whether the hearings officer and the Board of Socialand Rehabilitation Appeals erred when they concluded St. James Community Hospitalwas a proper party which had standing to pursue the Moores' claim for county medical benefits and had standing to appeal Fair Hearing DecisionNo. 163? 3. Whether the hearings officer erred in failing to find the Indian Health Service the resourceresponsible for satisfying the medical debts of the Moores? 4. Whether the Board of Social and Rehabilitation Appeals erred in limiting the scope of rehearing of Fair Hearing Decision No. 163 to a determination of the Moores' county of residence? 5. Whether the hearings officer, Board of Social and Rehabilitation Appeals and district court erred in finding Blaine County the resource financially responsible for paying the medical debts of the Moores? The first two issuesraised by Blaine County challenge St. James Community Hospital's standing as a proper party to pursue the Moores' claim for county medical benefits. The departmental rules of the Montana Department of Socialand Rehabilitation Serviceprovide: "46-2.2(2)-P240 CONTESTED CASES, REPRESENTATION (1)A claimant may be representedby legal counsel, or by a relative, friend,or other spokesman, or he may representhimself. A departmental employee may not represent a claimant.

"(2) In the discretion of the Fair Hearing Officer, a hospital, nursing home,physician or other vendor may act in a representational capacity for the purposes of requesting a fair hearing and acting as spokesman for a claimant where a hardship exists which impedes the obtainability of a written authorization from the claimant to act in such a capacity." Although St. James Community Hospital obtainedwritten authorization from the Moores in time for the rehearing, the hospital lacked such written authorization at the time of theinitial fairhearing. Twomonths lapsed between the date St. James Community Hospital petitioned for a fairhearing and the date of the fair hearing. The hospital contends itmade good faith efforts to contact Moore in Lodgepole, but were unsuccessful in obtaining a response. The good faith efforts of the hospital are supportedby evidence that the Blaine County Welfare Departmentwas also unsuccessful in contactingMoore. Once the hospital did obtainwritten authorization on November 18, 1975, Moore ratified all previous actions of the hospital in the Moores' behalf and authorized the hospital to further pursue the Moores' claim. Blaine County contends the absence of the Moores at the fairhearing is fatal to any force or effect given the hearings officer's findings of fact and conclusions of lawand decision. In support of its argument Blaine County cites the SRS departmental rules,MAC 46-2.2 (2) -P2040(6)

## ,which provides: "(6) A hearingmay otherwisebe considered as concluded when the claimant or authorized representative withdraws his request for a fair hearing in writing or fails to attend a properly noticed hearing without good cause. The hearing officer shall inform the claimantby letter of the date his claim shallbecome a closed issue as a result of said failure to attend. A second hearingmay be scheduled at the discretion of the hearing officer for good cause. 

### A hearing may also be concluded by stipulation, consent order, or settlement." We believe this departmental rule must be read in conjunction with MAC 46-2.2(2)-P240(2) which places in the discretion of the fair hearings officer the determination of whether a hospital may act in a representational capacity for purposes of requesting a fair hearing and acting as spokesman for the claimant. 

### In the instant case the hearings officer concluded therewas justification for the hospital's failing to obtainwritten authorization from the claimant in time for the fair hearing. We fail to find substantial evidence which would indicate the hearings officerabusedhis discretion in arriving at this determination. This Court held inMontana Deaconess Hospital v. Lewis and Clark County, 149Mont. 206, 210, 425 P.2d 316, a hospital has standing, as a realparty in interest, to bring a cause of action to collect county welfare medical benefits for emergency medical care rendered by the hospital for an individual eligible to receive county welfare medical assistance. In Montana Deaconess Hospital v. Lewis and Clark Countywe stated: 

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## * * * Ifhospitals were to reject admission of emergency cases until the legal settlement is established, or until onewho is responsible accepts the obligation to care for such indigent, much harm could result." Similarly, much harm could result if hospitals, under the facts of the present case, could be denied a vehicle for recovering the costs expended for emergency medical caremerely because a claimant fails to appear at a fair hearing. We conclude the hearings officer in the instant case did not abuse his discretionwhen he determined the hospitalwas a proper party which had standing to request a fair hearing and pursue the Moores' claim for county welfare medical assistance in the Moores' absence. Nor did the Board of Social and Rehabilitation Appeals err when it determined the hospital had standing to appeal Fair Hearing DecisionNo. 163. The third issue raised by Blaine County challenges the hearings officer's failure to find the Indian Health Service the resource responsible for satisfying themedical debts of the Moores. Blaine County contends the Moores should be denied county welfare assistance since the Indian Health Service is responsible forproviding the Moores medical care. Blaine County refers to specific provisions of the Bureau of Indian Affairs manual, which purportedly provides maternity carebenefits up to elevenmonths after relocation when the claimant receives relocation assistancefrom the Bureau of IndianAffairs, and the existence 

### of past and pending federal caseswhich address the issue of the Indian Health Service "responsibilityto provide medical care to 'offreservation Indians.'" MAC 46-2.10(18)-S11490 provides:

"(a) Third party includes an individual,institution, corporation,public or private agency who is or may be liable to pay all or part of the medical cost of injury,disease or disability of an applicant or recipient ofmedical assistance. 

### "(b)Referrals shall be made to the Legal Unit, Department of Social and Rehabilitation Services, P. 0. Box 1723, Helena,Montana 59601, for examination. The Legal Unit shallmake referrals to the Department of Revenue for recovery.'' (Emphasis added.) The evidence clearly establishes that the Indian Health Service refuses to give medical assistance to the Moores. 42 CFR 36.12 indicates theremay be regulatory justification for the Indian Health Service's denial ofmedical assistance to the Moores: "836.12 Persons to whom services will be provided. "(a) In general. (1) Services will be made available,asmedically indicated,to persons of Indian descent belonging to the Indian community served by the local facilitiesand program, and non-Indian wives of suchpersons. "(2) Generally, an individual may be regarded as within the scope of the Indian health and medical service program if he is regarded as an Indianby the community inwhich he lives as evidenced by such factorsas tribal membership, enrollment, residence on tax-exempt land, ownership of restricted property, activeparticipation in tribal affairs, or other relevant factors in keeping with general Bureau of Indian Affairs practices in the jurisdiction.

### "(b)Doubtful cases. (1) In case of doubt as to whether an individual applying for care is within the scope of the program, the Medical Officer in Charge shall obtain from the appropriate Bureau of Indian Affairs officials in the jurisdiction information pertinent to his determination of the individual's continuing relationship to the Indian population group served by the local program. "(2) If the applicant's condition is such that immediate care and treatment are necessary, services shallbe provided pending identificationas an Indianbeneficiary. "(c) Priorities when funds, facilities, or personnel are insufficient to provide the indicated volume of services. Priorities for care and treatment, as among individuals who are within the scope of the program, will be determined on the basis of relative medical need and access to other arrangements for obtaining the necessary care." (Emphasisadded.) In any event,we fail to findmerit in Blaine County's argument that the Moores must litigate a potential right to federalresources prior to seeking county welfare medical assistance. Upon being denied federal assistance, the Moores elected to apply for county welfare medical assistance and under the circumstances they are entitled to such assistance. The fourth and fifth issues raised by Blaine County concern the problem of determining the Moore's residence as it applied to the finding that Blaine Countywas the county of financial responsibility forpurposes of paying the medical debts of the Moores. It should be noted that BlaireCounty does not contest SRS's finding that the Moores are indigent persons entitled to countywelfaremedical assistance. See State ex rel. Hendrickson

v. Gallatin County, 165Mont. 135, 526 P.2d 354; Saint Patrick Hospital v. Powell County, 156Mont. 153, 477 P.2d 340. The difficulty arises when one attempts to determine the county of financial responsibilityunder Montana's statutory scheme. Section 71-305, R.C.M. 1947, in pertinent part provides: "Medicalaid and hospitalization. (1)Medical aid and hospitalization for nonresidents within the county and county residents unable to provide such necessities for themselves are the legal andfinancial duty and responsibilityof the board of county commissioners, except as otherwiseprovided in other parts of this act,payable from the county poor fund." MAC 46-2.10(38)-S101970 provides: "46-2.10(38)-S101970 COUNTY RESIDENCY (1) For determination of applicant's county residency requirements, reference is made to R.C.M. 1947, Section 71-302.2." Finally, section 71-302.2, R.C.M. 1947, sets forth the criteria to be utilized in determining the county of financial responsibility on the basis of the claimant's residency: "Residency requirements. Any person otherwise qualified who makes his home in the state of Montana with the intent to become a resident shall be eligible for general relief. Upon the filing ofhis application in the county of residence, his assistance shall be paid entirely from state fundsuntil he has resided for one (1)continuous year in the state of Montana, atwhich time he shallbecome a financial responsibility of the county inwhich he resides at the expiration of the one (1)yearperiod. A person who leaves the state of Montana with the intent to reside in another state,and later returns to reside in the state of Montana, shallbe deemed a new resident for the purposes of this act. If a recipientmoves from his original county of residence to reside in another county, he shall continue to be 

### a financial responsibilityof the original county of residence for one (1)year from the date of his change of residence. If during this one (1)year period, the individual resides in several counties, he shallbecome a financial responsibilityof the county inwhich he resides at the expiration of the one (1)yearperiod. County medical assistance under section 71-308 shall not be entitled to be paid from state funds.

## " Theplain and clear meaning of the language in section 71-302.2, R.C.M. 1947, indicates the county of financial responsibility is that county in which the claimant resides at the end of oneyear continuous residence inMontana. The statutory language would infer that a person, otherwise qualified,who makes his permanent home in the state of Montana with the intent to become a resident,may migrate from county to countywithin Montana and, at the end of the one year period, the countywhere the person is found is the county of financial responsibility for thepurpose of paying county welfare medical benefits. Furthermore, if the new resident continueshis migration after the oneyear period, the "original county of residence" continues to be financially responsible for county welfare benefits for one year from the date of the new residents change of county residence. The effect of section 71-302.2, R.C.M. 1947, and the complicationsarising out of the present fact situationare best demonstrated by a chartdepicting the Moores' migration patterns. Date Initiating DateTerminating Situsof Residence Approximateperiod Residence Residence of Residence Dec. 24, 1972 Sept. 23, 1973 Lodgepole, Blaine 9 months County Sept. 24, 1973 April 23, 1974 Havre, Hill 7 months County April 24, 1974 Sept. ?, 1974 Lodgepole, Blaine 5 months County Sept. ?, 1974 Dec. 28, 1974 Anaconda, Deer 3 months Lodge County Dec. 29, 1974 present Lodgepole, Blaine County At the end of the Ploores'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 themarried couples housing unit. Under a strict interpretation of section 71-302.2, onewould 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 summerbreaks. For this reason, it is customary to look to the parents' residence in order to determine the residence of the student. Otherwise, the county inwhich the college lies would be unduly burdenedwith providing for the social welfare of students. As oftentimes occurs, the facts of the present case do not readily fallwithin the guidelines of the presumption. The Moores are not of the tender age often associatedwith college students. Furthermore, there is an absence of the parental ties often associatedwith the student leaving his parents' home to attend college. Therefore,wemust look closer to determine the county having the most significant contactswith the Moores. TheMoores resided in Blaine County for ninemonths prior to their attending Northern Montana College. During the Moore's stay in Hill County, they returned to Blaine County onweekends and holidays to aid Mrs. Moore's parents by helping with the work

on their ranch. Upon leaving Hill County, the Moores returned to Blaine County,and resided on the ranch while continuing to help with the work. Moore then commuted to Northern Montana College where he continued his course work during the summer, 1974. Moore testified that he at all times considered Lodgepole to be the situs of his permanent residence. The facts clearly indicate that Blaine Countywas the county having the most significant contacts with the Moores. Under such an analyses Blaine County is the county of financial responsibility for purposes of providing county medical welfare assistance to the Moores. We conclude the hearings officer and Board of Social and Rehabilitation Appeals did not err in limiting the scope of rehearing 

### of Fair Hearing DecisionNo. 163 to a determination of the Moores' county of residence since thatwas the sole issuebeing legitimately contested at the time. Nor did the hearings officer, Board of Social and Rehabilitation ,?Appealsand district court err in finding Blaine County the county financially responsible for providing county welfare medical assistance to the Moores.The order and judgment of the district court, affirming the administrative decisions of SRS are affirmed, consistent with this opinion.



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