November 18 2008
DA 08-0077
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 388N
MARY J. CLEMENT,
Petitioner and Appellant,
v.
MONTANA DEPARTMENT OF LABOR AND INDUSTRY,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDV 07-329
Honorable Jeffrey M. Sherlock, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Mary J. Clement (self-represented), Portland, Tennessee
For Appellee:
Don E. Harris, Department of Labor & Industry, Helena, Montana
Submitted on Briefs: October 16, 2008
Decided: November 18, 2008
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Appellant Mary J. Clement (Clement) appeals the District Court’s order on judicial
review that affirmed the decision of the Montana Board of Social Work Examiners and
Professional Counselors (Board) to revoke Clement’s license to practice as a licensed clinical
professional counselor. We affirm.
¶3 Clement received her Montana license as a clinical professional counselor in
September 2000. She initially worked under the auspices of a doctor in Livingston and split
her time between Montana and her home state of Tennessee. Clement entered into a
particular provider agreement with Blue Cross/Blue Shield of Montana (BCBSMT) in
November 2000. Clement agreed to accept full payment from BCBSMT with no charge to
her clients who had health insurance coverage with BCBSMT. Clement also agreed that she
would bill only for face-to-face counseling sessions with her clients.
¶4 A billing dispute arose between Clement and BCBSMT regarding Clement’s bills for
her treatment of husband and wife, S.H. and B.H., who are BCBSMT subscribers. The
couple’s insurance policy contained an unlimited mental health benefit with no dollar limit
for counseling, no co-payment, and no deductible. Clement’s agreement with BCBSMT
prevented her from billing B.H. and S.H. for any amounts not paid by BCBSMT.
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¶5 BCBSMT eventually audited Clement’s billing practices and sought reimbursement
for over $13,000 in fees that had been paid to Clement. Clement returned over $13,000 to
BCBSMT. She soon filed a complaint in Park County Justice Court where she sought to
recoup $2,940 from B.H. and S.H. for amounts not paid by BCBSMT. The Park County
Justice of the Peace ruled in favor of B.H. and S.H. on the merits.
¶6 B.H. and S.H. filed a complaint with the Board regarding Clement’s improper billing.
On the same day that Clement received a copy of the complaint, she sent an unsolicited
letter to the Social Security Administration in which she claimed that B.H. was a
“malingerer.” Clement also prepared a document entitled “Declaration,” that she attempted
to have B.H. and S.H. sign. The document sought to legitimize some of Clement’s billing
practices.
¶7 The Department’s hearing examiner conducted a four-day contested case hearing on
the complaint against Clement. The hearing examiner cited 13 separate violations of
professional standards for licensed clinical professional counselors committed by Clement.
The hearing examiner determined that Clement had committed unprofessional conduct in
violation of § 37-1-316(4)-(5), (9), (15), (18), MCA, and Admin. R. M. 24.219.804(1)-(2)
(2003). The hearing examiner determined that it was necessary to revoke Clement’s license
to protect the public under § 37-1-312, MCA. The Board concurred with the hearing
examiner’s determination to revoke Clement’s license. The Board cited several aggravating
factors that necessitated revocation of Clement’s license, as opposed to suspension and
attempted rehabilitation of Clement.
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¶8 Clement filed a petition for judicial review in which she alleged that the Board
violated her right to procedural due process by withholding documentation that allegedly had
been provided to the Board by BCBSMT. Clement next argued that the Board should have
used the clear and convincing evidence standard of review instead of the preponderance of
the evidence standard of review as her case involved the revocation of a professional license.
Clement further argued that her billing practices were in compliance with her BCBSMT
contract in light of the fact that the BCBSMT contract was silent as to billing for overtime.
Finally, Clement argued that the definition of “harm” to a patient is unconstitutionally vague
as set forth under § 37-1-316, MCA, and Admin. R. M. 24.219.804 (2003). The District
Court affirmed and Clement appeals.
¶9 A district court reviews an administrative agency’s decision in a contested case to
determine whether the findings of fact are clearly erroneous and whether the agency
correctly interpreted the law. Solid Waste Cont. v. Dep. of Pub. Ser. Reg., 2007 MT 154, ¶
16, 338 Mont. 1, ¶ 16, 161 P.3d 837, ¶ 16. Section 2-4-704(2), MCA, provides the standard
of review for an agency decision. The court may not substitute its judgment for that of the
agency as to the weight of the evidence on questions of fact. The court may affirm the
decision of the agency or remand the case for further proceedings. The court may reverse or
modify the decision if substantial rights of the applicant have been prejudiced in light of
various factors. Section 2-4-704(2), MCA. A finding is clearly erroneous if it is not
supported by substantial evidence, or, if it is supported by substantial evidence, because the
agency misapprehended the effect of the evidence. The court may still decide that a finding
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is clearly erroneous when “a review of the record leaves the court with the definite and firm
conviction that a mistake has been committed.” Weitz v. Dept. of Nat. Resources &
Conserv., 284 Mont. 130, 133-34, 943 P.2d 990, 992 (1997).
¶10 We employ the same standard when reviewing the district court’s decision, and must
accordingly determine whether an agency’s findings of fact are clearly erroneous and
whether its conclusions of law were correct. Solid Waste Cont., ¶ 17. We have determined
to decide this case pursuant to Section I, Paragraph 3(d) of our 1996 Internal Operating
Rules, as amended in 2003, that provide for memorandum opinions. It is manifest on the
face of the briefs and record before us that substantial evidence supports the District Court’s
findings of fact and that the District Court’s legal conclusions were correct.
¶11 We affirm.
/S/ BRIAN MORRIS
We Concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ JOHN WARNER
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