author: MATTHEWS, Justice.

text:
    Raymond P. BAILEY, Appellant, v. Charmaine L. BAILEY, Appellee.
    No. S-10248.
    Supreme Court of Alaska.
    Jan. 31, 2003.

      Edward R. Niewohner, Lawrence F. Re-ger, Niewohner & Associates, P.C., Fairbanks, for Appellant.
    Charmaine L. Bailey, pro se, Fairbanks.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

I. INTRODUCTION

Raymond Bailey appeals the superior court’s order excusing his former wife, Charmaine Bailey, from payment of child support arrearages. He argues that the superior court abused its discretion by retroactively modifying Charmaine’s child support and that the court’s calculation of Charmaine’s total arrearages and Raymond’s prospective support obligation was clearly erroneous. We conclude that while there was no retroactive modification, the court erred in calculating arrearages and Raymond’s prospective support.

II. FACTS AND PROCEEDINGS

Raymond Bailey and Charmaine Bailey married in June 1980 and have two children — Cara, born October 30, 1980, and Nicholas, born June 22, 1983. The parties divorced in March 1997. Custody and child support terms were governed by an incorporated agreement under which Raymond had primary physical custody of Cara and the parties shared physical custody of Nicholas. Nicholas was to live with Charmaine during the school year and with Raymond during the summer. Regarding child support the parties agreed: “As Husband has primary

physical custody of Cara and the parties have shared physical custody of Nicholas, the child support obligation will be determined by a hybrid of Alaska Civil Rule 90.3(a) and Alaska Civil Rule 90.3(b) as set out in [T]urinsky v. Long, 910 P.2d 590 (Alaska 1996) _”

In September 1997 Nicholas began to live with Raymond in Anchorage during the school year. On Raymond’s motion the court on July 10,1998, entered a new child support order. Under this order Charmaine was to pay Raymond “monthly child support beginning September 1, 1998, in the amount of $1,042 a month until the children have reached their 18th birthday or are emancipated or graduated from high school.” The court also awarded Raymond back child support in the sum of $16,790.24. Charmaine paid this amount while seeking reconsideration. On reconsideration the court modified the back support award to $13,563.84, leaving Charmaine with a $3,226.40 child support credit. This credit covered Charmaine’s September and October 1998 support payments. On October 30, 1998, Cara turned eighteen.

What happened next is in dispute. Charmaine claims that she had Nicholas ask his father how much she should pay in support for just Nicholas, and that Raymond responded — through Nicholas — that she should pay $311.64 per month. Charmaine further claims that her child support credit carried her through January 1999, that she began sending child support checks for Nicholas in February 1999, and that she remained current with her payments, with only a few exceptions. Raymond, however, contends that Charmaine made only three partial child support payments — $311 each for the months of March, May, and June 1999.

Meanwhile, Nicholas continued to reside primarily with his father until November 6, 2000, when he moved back to Fairbanks to stay with his mother. Charmaine moved to modify the existing child custody and support award on March 12, 2001. Raymond opposed Charmaine’s motion, claiming that any change in child support for the time before March 12, 2001, would be an invalid retroactive modification, and that Charmaine owed him a substantial sum in child support ar-rearages. In addition, Raymond pointed out that Nicholas had moved out of Charmaine’s home to stay with family friends in April 2001.

A hearing on Charmaine’s motion was held on May 23, 2001, and the superior court issued a written ruling the next day. As to custody the superior court ruled that

Nicholas shall determine which parent he will live with. At present he is living in Fairbanks with family friends and expects to remain there throughout the summer. He will spend time with his mother when possible, but is not comfortable residing in the residence. He will visit his father in Anchorage when convenient for the parties.

As to child support, the court ruled that “Mr. Bailey shall provide Nick reasonable assistance this summer and thereafter as he elects to do so. He shall not be responsible to Ms. Bailey for child support.” The court explained that Raymond’s prospective child support obligation would have been roughly $1,680 per month, but that “it would be inequitable to require [him] to pay Ms. Bailey child support while Nick is in Fairbanks, considering the fact that Nick resides with family friends and is fairly self-sufficient.”

As to Raymond’s claim that Charmaine still owed him significant back child support, the court found that Charmaine had underpaid child support by about $429 per month during the roughly thirteen months between October 1999 and November 2000, but that she had made three payments of $311. The court concluded that “[t]his amounted to an underpayment of $4,644,” but that “under the circumstances, ... it would be inequitable to require Ms. Bailey to pay past child support to Mr. Bailey given the fact that Nick lived in her home for at least four months without receipt of child support.” Furthermore, the court held that “Ms. Bailey was not required to pay child support once Nick relocated to Fairbanks.”

Raymond appeals the superior court’s order.

III. DISCUSSION

A. Retroactive Modification of Child Support

Raymond’s first point on appeal is that the superior court, by extinguishing Charmaine’s accrued arrearages, impermissibly engaged in a form of retroactive modification of child support. He notes that retroactive modification of child support arrearages is prohibited under Civil Rule 90.3(h)(2).

Raymond’s argument is correct only if a child support order determined the support for Nicholas after Cara turned eighteen. The child support order of July 10, 1998, provided for a payment of $1,042 a month “until the children have reached their 18th birthday or are emancipated or graduated from high school.” The court indicated in an amended order dated August 25, 1998, that “it is the Court’s impression” that child support for Cara should not continue past her birthday since she was not attending high school. But the order clearly contemplated that support would continue to be payable for Nicholas by providing that monthly child support would continue “until the children ” became eighteen. Raymond concedes that the monthly amount specified in the order of July 10,1998, $1,042, was reduced when Cara turned eighteen. After that event was there a child support order that was sufficiently specific to activate the ban on retroactive modification?

We believe that the answer is “no.” The amount payable for the support of Nicholas was neither expressed in the order nor was it subject to calculation through ministerial acts controlled by the terms of the order.

At the hearing on Charmaine’s motion, Raymond’s counsel argued that calculation of the monthly support for Nicholas could be readily done since the figure for the support of both children, $1,042, “was 27 percent, so you have to figure it out what 20 percent would be.” Twenty-seven percent is the percentage of adjusted income a noncustodial parent should pay for the support of two children under Civil Rule 90.3(a); twenty percent is the figure for the support of one child. Calculating at the hearing, counsel arrived at a figure of $740 due monthly for the support of Nicholas.

This was accepted by the trial court, but it is mathematically erroneous. The proper figure, assuming Rule 90.3(a) was used in the July 10, 1998 order and was meant to be used when Cara turned eighteen, would be $771.85. The error in calculation is a minor matter. What is important is that the calculations used by the court in July of 1998 to arrive at the support figure for both children of $1,042 are not set out, and the court did not then indicate that it was using Rule 90.3(a) to arrive at that amount.

Because the custody as to both children seems to be “hybrid” — shared as to Nicholas but primary as to Cara — it is not possible to simply assume that Rule 90.3(a), which relates to primary custody, was used to calculate support, rather than some other formula. Moreover, nothing is said in the July 1998 order as to how future support for Nicholas is to be calculated once the requirement to support Cara terminates. Again, it is not possible to assume that the primary custody formula of Rule 90.3(a) should be used, because the July 1998 order seems to indicate that custody of Nicholas will be shared.

The fact that the court at the May 2001 hearing seems to have accepted counsel’s contention that Rule 90.3(a) should be used to calculate arrearages under the earlier order is not controlling on the question whether the earlier order was sufficiently definite as to the amount payable for Nicholas’s support as to bring into play the bar on retroactive modification of support. The court’s acceptance of counsel’s position is a discretionary choice as to how support should be calculated rather than a necessary product of the July 1998 order.

B. Calculation of the Arrearage

As noted, the trial court calculated Charmaine’s arrearage at $4,644. Raymond correctly contends that the trial court made a number of mistakes in arriving at this figure.

One mistake is that the trial court accounted for only part of the period of the arrearage. The court purported to account for “the roughly thirteen months between October of 1999, and November 2000.” This is a mistake of some eleven months, because Cara turned eighteen on October 30, 1998. Support for Nicholas must be calculated from November of 1998 to November of 2000.

The court concluded that Charmaine “underpaid child support in the rough amount of $429 a month, but did make three payments of $311.” The court’s conclusion that $429 was underpaid is evidently the product of subtracting $311 from counsel’s hastily calculated figure of $740 for support for Nicholas once Cara toned eighteen. But the court found that Charmaine had only made three payments of $311. For the other twenty-one months between November of 1998 and November of 2000, there should have been no $311 deduction. But Charmaine should be credited with the remainder of her initial overpayment, $1,142.40.

Finally the court was mistaken in accepting counsel’s representation that child support for the period in question was $740 per month. As we have noted, if one assumes that Rule 90.3(a) was used in arriving at the initial support amount for both children and was meant to be used in calculating support for Nicholas after Cara turned eighteen then support should have been $771.85. But these assumptions are not necessarily correct. The court should have made findings setting out both its factual premises and its method of calculating support for Nicholas.

C. Raymond’s Prospective Child Support Obligation

Raymond’s final point is that the court concluded that the amount of child support Raymond would owe Charmaine after her modification motion, $1,680 per month, was not based on evidence of Raymond’s earnings.

Civil Rule 90.3(e) on child support affidavits and documentation requires:

Each parent in a court proceeding at which child support is involved must file a statement under oath which states the parent’s adjusted annual income and the components of this income as provided in sub-paragraph (a)(1). This statement must be filed with a party’s initial pleading ..., motion to modify, and any response to a motion to modify. The statement must be accompanied by documentation verifying the income. The statement must state whether the parent has access to health insurance for the children and, if so, the additional cost to the parent of the children’s health insurance.

Here, it appears that the superior court lacked any current income affidavit or documentation on which to base its calculation of Raymond’s prospective obligation.

Charmaine points out that the court did have access to Raymond’s documentation as of 1997 and implies that this was adequate basis for a determination of child support as of 2001. She subsequently states, however, that it would be reasonable to expect that Raymond’s income “[had] significantly increased since 1997.” Charmaine’s own statement admits the likelihood that Raymond’s income had changed since 1997. Indeed, there is no way to tell how the superior court arrived at Raymond’s prospective child support obligation, because as Charmaine admits, “In the Custody and Child Support order of May 24, 2001, the Court did not state the source of its calculations for Raymond’s prospective child support obligation.”

To the extent that the superior court continues to rely upon an assessment of Raymond’s prospective support obligation as an offset, or for other purposes, the obligation should be based upon current income information.

IY. CONCLUSION

For the above reasons, we vacate the superior court’s order of May 24, 2001, insofar as it calculated the amount due from Charmaine for the support of Nicholas and offset that amount against support due from Raymond. On remand the court should recalculate the amount due, make appropriate findings, and enter judgment accordingly.

VACATED and REMANDED for further proceedings consistent with this opinion.

      . See Bennett v. Bennett, 6 P.3d 724, 728 n. 19 (Alaska 2000) ("Because no child support order existed, the trial court did not have to concern itself with the prohibition against retroactive modification of child support.”).

      . Adjusted income = 1042/.27=3859.26 x .20=771.85.

      .The ambiguity arises because the order, in reducing the 1998 arrearages because of summer visitation with Charmaine, refers to the arrangement concerning Nicholas in the present rather than the future tense — "the parties’ son resides with Ms. Bailey during the summer months"— and does not provide for a reduction for future summers.

      .Raymond contends that child support must be calculated to April 2001, the earliest date at which any change in support could have become effective, based on Charmaine's March 2001 motion to modify. If there had been an effective child support order for Nicholas, the date of the motion would be controlling under the bar on retroactivity. But since there was not an effective order and the bar does not apply, arrearages should be calculated only until Nicholas began to stay with Charmaine in November of 2000. See Bennett, 6 P.3d at 727-28. But Raymond as the de jure custodial parent would not owe child support to Charmaine until after the date of the motion. Id. at 726-27.

      . As of the end of August 1998, Charmaine had a $3,226.40 child support credit. Her monthly obligation of $1,042 for September and October must be subtracted from that, leaving a credit of $1,142.40.

      . See Wnght v. Gregorio, 855 P.2d 772, 773 (Alaska 1993) ("Adequate findings of fact on [child support] matters are essential, so that a reviewing court may clearly understand the grounds on which the lower court reached its decision.”).


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    John R. GARNER, Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF MEDICAL ASSISTANCE, Appellee.
    No. S-10318.
    Supreme Court of Alaska.
    Jan. 31, 2003.

      James J. Davis, Jr. and Nikole M. Nelson, Alaska Legal Services Corporation, Anchorage, for Appellant.

      Dawn M. Carman and Charles T. Huguel-et, Assistant Attorneys General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Michael N. Zechman, Disability Law Center of Alaska, Anchorage, for Amicus Curiae.
    Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

John Garner, a severely retarded state Medicaid recipient, challenges the decision of the Department of Health and Social Services, Division of Medical Assistance not to cover the cost of a routine dental exam which he has characterized as medically necessary. Because the record has not been sufficiently developed to determine whether the agency failed to comply either with its own regulations or with the Americans with Disabilities Act, we reverse the superior court’s decision affirming the agency’s denial of services and instruct the court to remand the case to the agency for further fact finding on these issues. Accordingly, we do not reach the questions of whether the agency’s regulations regarding adult dental care comply with the federal Medicaid Act or the equal protection guarantee of the Alaska Constitution.

II. FACTS AND PROCEEDINGS

Appellant John Garner is a thirty-five year old man who functions at the level of a two-year old. He suffers from severe mental retardation and developmental abnormalities which render him unable to speak, care for himself, or perform any activities of daily life. As a result of his disability, Garner is unable to verbally express to his caregivers what he is feeling or when he is experiencing pain. In the past, this has resulted in the development of severe dental problems which went unnoticed by those around him.

On May 13, 1999 Garner received a comprehensive dental examination and root planing procedure while under general anesthesia for an unrelated medical procedure. A root planing, as described by the representative of the State Division of Medical Assistance, is “an extraordinar[il]y thorough cleaning,” beyond what one would normally receive during a teeth cleaning. Garner required this procedure to clear the plaque and gingivitis from his upper gums in order to prevent further bone loss. His doctors chose this path due to Garner’s problems cooperating and holding still while conscious. The unique problems of providing otherwise “routine” dental care to a severely retarded adult are explained in the report of one of Garner’s dentists:

I first examined John Garner when he was 12 years old. He soon developed periodontal disease at a relatively early age. His mouth accumulates much dental calculus. This calculus is of a tenacious, dark, sub-gingival kind; the sort that causes the gums to hemorrhage and destroys bone. His seizures and developmental delay make the daily prevention of this calculus formation an impossible task. For some years we tried removing this calculus and treating his gums in my office. He was very resistant to this and it was very traumatic to him. We tried different sedative drug cocktails and nitrous oxide. We had as many as six people restraining him, but were still not able to effectively treat his bone destroying periodontal disease.
For his gum disease he needs treatment by a gum specialist, a periodontist, not an oral surgeon. And, the periodontist needs a still patient on which to work. Dr. Re-maklus, a periodontist, has been able to limit the destructiveness of John’s gum disease by prescribing Peridex, and by treating his gums every three or four years while he is under general anesthesia. These are less than ideal arrangements, but they seem to be showing success at allowing John to not lose all his teeth soon.

The Department of Health and Social Services, Division of Medical Assistance (the agency) denied Medicaid coverage for the exam and root planing procedure, relying on Alaska regulations limiting complete dental coverage to Medicaid recipients under twenty-one years of age, and offering recipients older than twenty-one coverage only for “the immediate relief of pain and acute infection.”

Through his mother, Barbara Garner, John Garner sought a hearing before the Division of Medical Assistance, asking the agency to reconsider its decision not to cover his dental exam. At the hearing, Barbara Garner argued that the Medicaid regulations limiting basic dental coverage to recipients under twenty-one years of age should contain an exception for “those with severe disabilities whose age may be chronologically beyond 21, but mentally and physically have an age much under 21,” and contended that because the exam constituted a “medical necessity” for John, it should be covered. Because he could not locate any exceptions in the statute, even for those with severe disabilities, the hearing officer upheld the agency’s denial of coverage. The director of the Division of Medical Assistance agreed with the hearing officer’s decision.

John Garner, then represented by counsel through the Alaska Legal Services Corporation, appealed the agency’s decision to the superior court. On appeal, Garner argued that Alaska’s Medicaid laws regarding the provision of dental care to adults violated the federal Medicaid Act and the federal and state constitutional guarantees of equal protection. He further maintained that the state’s failure to modify its Medicaid program to accommodate his need for routine dental care constituted a violation of the Americans with Disabilities Act (ADA). As a corollary to his argument regarding the agency’s failure to comply with the Medicaid Act, Garner argued that the agency failed to follow its own regulations in denying his claim. Superior Court Judge Donald D. Hopwood, in a thorough opinion that addressed several difficult issues, upheld the agency decision.

Garner now appeals.

III. STANDARD OF REVIEW

“In an administrative appeal where the superior court acts as an intermediate appellate court, we directly review the agency action in question.”

We will apply our independent judgment to “legal question[s] that involve[ ] statutory interpretation or other legal issues where the courts have specialized knowledge and experience.” Whether the agency correctly interpreted its own regulations is reviewed on the “reasonable basis” standard. However, we independently review whether a regulation applies to a case and we may find abuse of discretion where an agency fails to apply an applicable regulation.

Whether the agency complied with the requirements of the ADA is a legal question not involving agency expertise. Accordingly, we will substitute our judgment for that of the agency, “adopting] ‘the rule that is most persuasive in light of precedent, reason, and policy.’ ”

IV. DISCUSSION

A. Overview of the Adult Dental Services Provided Under Alaska’s Medicaid Program

Title XIX of the Social Security Act established the Medicaid program, a cooperative federal-state partnership under which participating states provide federally-funded medical services to needy individuals. Although participation in the program by a state is voluntary, once a state decides to participate, it must comply with federal statutory and regulatory requirements. States electing to participate in the Medicaid program must fund a minimum of seven mandatory services. States may elect to cover additional optional services and, once they do, those services become part of the state’s Medicaid plan and are subject to the requirements of federal law.

The State of Alaska has elected to participate in the federal Medicaid program. The state provides all mandatory services as well as a number of optional services, including “adult dental services.” Authority to promulgate regulations and to administer the program is accorded to the Alaska Department of Health and Social Services.

The regulations governing dental services provided to Medicaid-eligible adults are set out in 7 AAC 43.600 and 7 AAC 43.620. As the regulations clearly state, dental services for Medicaid recipients age twenty-one or older are limited to those “for the immediate relief of pain and acute infection.” Thus, there is no coverage for Medicaid-eligible adults desiring routine dental care.

B. The Agency’s Denial of Coverage for Mr. Garner’s Routine Dental Care May Have Been Inconsistent with Its Own Regulations.

In his appeal to the superior court, Garner argued that the state failed to follow its own regulations in denying his claim.

The state’s Medicaid regulations contain a provision allowing the agency to make exceptions under the appropriate circumstances. Thus, 7 AAC 43.080(a) provides:

The need for medical care is not subject to inflexible determination, which can be described completely in policy or regulations. Professional judgment must be exercised in each case and exceptions granted in those instances where unusual circumstances exist. Where undue hardship may result to an individual if medical care services are denied by strict application of regulations, exceptions to policy may be made when considered appropriate by the division.

In his decision, Hearing Officer James M. Leonard stated that “[njone of the federal or state Medicaid regulations I reviewed, which pertained to covered and excluded Medicaid services, referenced exceptions for any individuals — even those who were severely disabled.” When Garner pursued his administrative appeal, Bob Labbe, Director of the Division of Medical Assistance, concurred with the hearing officer’s decision to deny Garner’s request for routine dental care. At no time did Hearing Officer Leonard or Director Labbe mention section 43.080 of the regulations or inquire into its applicability.

In his brief to the superior court, Garner argued that if “the agency [had] taken the proper action and made a determination under this regulation it would necessarily have determined that routine dental care is a necessity for Mr. Garner.” However, as Garner further noted, “contrary to its own regulations, it chose to strictly apply some of its regulations and to ignore others.” In reply, the state contended that while “7 AAC 43.080 provides for exceptions based on unusual circumstances or undue hardship[,] ... Mr. Garner’s routine dental care does not qualify for this exception.”

The state offered no support for its position, and we see none in the record. While there are numerous statements from Garner’s doctors and caretakers indicating that Garner would suffer undue hardship should he be denied these otherwise routine dental services, the state has offered no evidence to the contrary and the agency has made no factual findings on which such a conclusion could be based. While the decision whether denial of Medicaid coverage for the dental care Garner received constitutes an undue hardship is committed to the discretion of the agency, we believe the agency abused that discretion by failing to even consider whether the exception applied. We have held it to be legal error for an agency to fail to apply exceptions found in its own regulations or, at the very least, to inquire into their applicability. Because the agency failed to inquire into the applicability of subsection 43.080(a), we remand to the superior court with instructions to remand to the agency for further findings on whether the agency’s denial of coverage for Garner’s otherwise routine dental care would result in an undue hardship for him and, if so, whether the requested services should be covered under this exception.

C. The Agency May Have Discriminated Against Garner in Violation of the ADA by Failing To Reasonably Accommodate Garner’s Disability.

Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” The regulations issued by the Department of Justice to implement Title II provide in relevant part:

(b)(1) A public entity, in providing any aid, benefit, or service, may not ... on the basis of disability—
(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;
(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:
(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;
(7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.[]

To prove that a public program or service violated Title II of the ADA, it is incumbent upon the individual alleging discrimination to show that:

(1) he is “a qualified individual with a disability”; (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.[]

Thus, where a service or benefit is defined in such a way as to deny an otherwise eligible disabled individual from gaining meaningful access to it, that individual has suffered discrimination as defined by the ADA.

In order to remedy the discrimination, the public entity may be required to provide the individual with a reasonable accommodation. A disabled individual who has suffered discrimination under Title II bears the initial burden of demonstrating that a reasonable accommodation exists and that it would enable him to access the services or benefits he has been denied by virtue of his disability. Once he has met this obligation, the burden shifts to the public entity to demonstrate that the requested accommodation is unreasonable. The answer to this question will depend on a “fact-specific individualized analysis of the disabled individual’s circumstances and the accommodations that might allow him to meet the program’s standards.” The process of ascertaining what constitutes a reasonable accommodation should be an interactive one, in which the public entity has an obligation to gather sufficient information from the disabled individual to determine what accommodations are necessary and feasible, rather than rejecting the request out of hand. This process is triggered upon notification of the individual’s disability and his desire for accommodation. Should the public entity offer the disabled individual an accommodation the individual believes will not be sufficient to accommodate his disability, the individual must demonstrate that the offered accommodation was not reasonable, and that the individual was therefore unable to participate in the service in question.

Garner contends that by requiring Medicaid recipients to verbalize their pain in order to obtain dental services “for the immediate relief of pain and acute infection,” the agency’s regulations discriminate against disabled individuals, such as him, who are unable to express pain and therefore unable to access these services. Thus, he argues that because the agency has made it a requirement that the proposed recipient of the emergency dental care be able to verbally express his need for such care, and because he is unable to do so, he has been discriminated against by the agency on the basis of his disability. The agency responds by alleging that Garner is “asking for discriminatory treatment based on a disability.” The agency claims that because the same medically necessary dental services are provided to disabled and nondis-abled individuals, no discrimination in the provision of services has occurred. Finally, the agency contends that requiring it to provide Garner with routine dental services in order to determine whether he is experiencing severe pain or acute infection would necessitate a fundamental alteration of its program and, as such, is barred by the ADA.

The parties agree that appellant is a qualified individual with a disability and that the agency is an entity covered by Title II. Additionally, the agency concedes that Garner is unable to express pain verbally. Because these facts are undisputed, Garner has successfully made out a prima facie case of disability-based discrimination. The only remaining questions, then, are whether relying on Garner’s caretakers to determine when he is experiencing pain or acute infection constitutes a reasonable accommodation, or whether the agency should instead cover the dental examination and root planing procedure performed by his doctor.

The agency’s position appears to be that it is offering Garner a reasonable accommodation by allowing his caregivers to express his pain for him. According to the agency, his “care providers may observe his demeanor, gestures, reactions to stimuli, and other physical manifestations to determine if he may have pain or an infection, and whether he requires medical or dental attention.” Garner contests the reasonableness of this accommodation, citing the undisputed evidence in the record that it is often impossible for his family, doctors, and caretakers to determine when he is in pain.

The record evidence of Garner’s inability to effectively communicate his status, and the inability of those around him to determine when he is in pain, is striking. For example, Garner’s live-in caregiver, Vincent F. Good-sell, Jr., wrote that the complexities of performing a thorough dental exam and cleaning on someone in Garner’s condition made it possible for Garner to afford such treatment “only every five years or so.” Given the infrequency of these routine visits, Goodsell expressed concern because “I often would not be able to determine if he was having a significant problem until perhaps he was in need of emergency care. In come cases, I may not even be able to determine that he is, in fact, in need of such care.” Goodsell then described the following situation: “For instance, when John was 29 years old his dentist found that he had an abscessed tooth. This condition was a surprise to everyone and one can only speculate on how long he experienced the problem.” Garner had been unable to communicate to anyone that he was experiencing that painful condition. On another occasion Garner fell in his bathroom and broke his arm, but several hours passed before anyone realized he was injured (when he was observed wincing trying to get up from a sofa). Because his family and caretakers are unable to know when he is in pain, Garner argues that in order to access the services provided to all Medicaid recipients, the agency must cover his otherwise routine dental services as a reasonable accommodation for the purpose of treating painful conditions that, unlike the non-disabled, he is unable to communicate either promptly or at all.

The question of which accommodation— the state’s or Garner’s — if either, is to be preferred under the ADA regulations requires factual findings. Accordingly, we remand to the superior court with instructions to remand to the agency for findings on this issue. As a preliminary matter, it is for the agency to decide whether a reasonable accommodation exists, and if so, what it is.

Finally, the agency argues that providing the accommodation requested by Garner would result in a fundamental alteration in the nature of the service provided. The state offers no support for this position, and therefore we decline to consider it at this time. The state remains free to present this argument to the agency on remand.

V. CONCLUSION

Because the record does not contain sufficient findings to permit us to determine whether the agency has violated its own regulations or the ADA by refusing to pay for Garner’s dental examination and accompanying root planing procedure, we REMAND to the superior court with instructions to remand to the agency for further factual development. Specifically, we instruct the agency to determine whether the denial of coverage will result in an “undue hardship” for Garner under 7 AAC 43.080(a). If it would, the agency must consider whether the requested services should be covered under this exception. Should the agency determine that denial of coverage would not result in undue hardship, the agency must then ascertain whether, under the ADA, the accommodations proposed by the agency or by Garner are reasonable and, if so, which is preferable, and, if not, whether an alternative reasonable accommodation exists and can be implemented.

      . Letter from Jim H. Case, D.M.D. (Nov. 24, 1999).

      . 7 AAC 43.600; 7 AAC 43.620.

      . On appeal, Garner presents three issues for review: whether 7 AAC 43.600 and 7 AAC 43.620 are inconsistent with the federal Medicaid Act or violate the equal protection guarantee of the Alaska Constitution and whether the agency’s denial of Medicaid coverage for routine dental care for Mr. Garner violates Title II of the ADA. Notably, Garner does not pursue his claims regarding the federal equal protection clause or the agency’s failure to follow its own regulations. However, for the reasons set out infra at note 21, we consider the argument that the agency failed to follow its own regulations in today's opinion.

      . Matanuska Elec. Ass’n, Inc. v. Chugach Elec. Ass'n, Inc., 53 P.3d 578, 583 (Alaska 2002).

      . Bauder v. Alaska Airlines, Inc., 52 P.3d 166, 174 (Alaska 2002); see also Handley v. State, Dep’t of Revenue, 838 P.2d 1231, 1233 (Alaska 1992) (discussing application of the substitution of judgment test for questions of law where no agency expertise is involved).

      . Cleaver v. State, Commercial Fisheries Entry Comm’n, 48 P.3d 464, 467 (Alaska 2002).

      . Payton v. State, 938 P.2d 1036, 1044 (Alaska 1997) (error for Board of Fisheries not to explain why regulation did not allow appellants’ actions). Cf. Cano v. Municipality of Anchorage, 627 P.2d 660, 663 (Alaska App.1981) (abuse of discretion for court to fail to recognize the legal alternatives open to it).

      . See Blanas v. Brower Co., 938 P.2d 1056, 1060 (Alaska 1997) (reviewing agency’s interpretation of AS 23.30.012).

      . Chizmar v. Mackie, 896 P.2d 196, 200 (Alaska 1995) (citing Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).

      . 42 U.S.C. § 1396.

      . Beal v. Doe, 432 U.S. 438, 440, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977).

      . State, Dep't of Health & Soc. Servs., Medicaid Rate Comm’n v. Hope Cottages, Inc., 863 P.2d 246, 248 (Alaska 1993).

      . 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396d(a).

      . 42 U.S.C. § 1396d(a); 42 C.F.R. § 440.240. See also Meyers v. Reagan, 776 F.2d 241, 243 (8th Cir.1985) (explaining that once a state decides to provide optional services, it must comply with the federal regulations that govern those services).

      . AS 47.07.010.

      . AS 47.07.030(a)-(b). Adult dental services under the Alaska Medicaid program are defined by statute as "minimum treatment for tire immediate relief of pain and acute infection provided by a licensed dentist.” AS 47.07.900(1).

      . AS 47.07.040.

      . In relevant part, 7 AAC 43.600 provides:
      (а) Medicaid will pay for routine dental services for recipients under age 21. Medicaid payment for recipients age 21 or older is limited to dental services for the immediate relief of pain and acute infection.

      . 7 AAC 43.620 provides:
      The division will not pay for the following dental services:
      (1) dentures, relines, or denture repairs for recipients age 21 or older;
      (2) treatment for conditions of the tempora-mandibular j oint;
      (3) final restorations in resin or amalgam for more than five surfaces;
      (4) treatment for chronic dental disease, including gingivitis and periodontis, for recipients age 21 or older;
      (5) indirect pulpcapping;
      (б) endodontic services for recipients age 21 or older; and
      (7)dental services that are not for the immediate relief of pain and acute infection for recipients age 21 or older.

      . 7 AAC 43.600(a).

      . Although Garner briefed this claim that the agency failed to follow its own regulations in his appeal to the superior court, and the state responded to it, the superior court did not decide the matter. Garner has not raised the issue in his appeal to this court, and we normally would not reach it for that reason. Martinson v. Arco

        Alaska, Inc., 989 P.2d 733, 738 (Alaska 1999); Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991). But there is an exception to this rule, for we have held that an appellant's failure to raise an issue in this court will not preclude our consideration of it where it involves a question of law critical to a proper and just decision of the case and where the parties have been given the opportunity to brief the matter. Vest v. First Nat'l Bank of Fairbanks, 659 P.2d 1233, 1234 n. 2 (Alaska 1983). See also Hickel v. Halford, 872 P.2d 171, 175 (Alaska 1994). Because we view this as a potentially determinative issue and because the parties have already briefed it before the superior court, we have decided to reach the issue of the agency’s failure to follow its own regulations.

      . See, e.g., Payton v. State, 938 P.2d 1036, 1044 (Alaska 1997) (citing, as error, the failure of the Board of Fisheries to explain why a regulatory exception allowing residents to stop using certain methods of handling, preparing, preserving and storing salmon did not apply to Skwentna-area residents’ decision to stop drying salmon). Cf. Cano v. Municipality of Anchorage, 627 P.2d 660, 664 (Alaska App.1981) (holding that the superior court’s "outright refusal to consider the various alternatives available as a matter of discretion to the court is a failure to exercise any discretion at all”).

      . 42U.S.C. § 12132.

      . 28 C.F.R. § 35.130.

      . Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir.2001) (quoting Weinreich v. Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997)).

      . Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985).

      . 28 C.F.R. § 35.130(b)(7); Choate, 469 U.S. at 301, 105 S.Ct. 712.

      . Wong v. Regents of the Univ. of Cal., 192 F.3d 807, 816 (9th Cir. 1999).

      . Id. at 817.

      . Id. at 818.

      . Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir.2002) (analyzing public entity’s obligation to provide reasonable accommodation under analogous provisions of section 504 of the Rehabilitation Act). Cf. Moody-Herrera v. State, Dep't of Natural Res., 967 P.2d 79, 88 (Alaska 1998) (adopting the reasonable accommodation analysis employed by federal courts, in cases brought under Title VII, which asks "whether reasonable accommodation was available, was provided, or would impose undue hardship on the employer”).

      . Vinson, 288 F.3d at 1154.

      . Duvall, 260 F.3d at 1137.

      . See 42 U.S.C. § 12132 (prohibiting the denial of the benefits of a service or program offered by a public entity to a qualified individual because of that individual's disability). Garner's case resembles in some respects the situation in Crowder v. Kitagawa, in which Hawaii subjected all dogs, including guide dogs of visually-impaired individuals, to 120-day quarantine. 81 F.3d 1480, 1481-82 (9th Cir.1996). As a result, disabled individuals requiring the aid of guide dogs were unable to enjoy meaningful access to state services and activities during that four-month period. Id. at 1482. The court held that appellants had made out a prima facie case of disability-based discrimination based on their inability to access state services because of the quarantine requirement and required the state to make efforts to reasonably accommodate them. Id. at 1485-86.

      . Braun v. Alaska Commercial Fishing & Agrie. Bank, 816 P.2d 140, 145 (Alaska 1991) (reasoning that issue which has been insufficiently briefed need not be addressed by this court).


text:
    Timothy DENUPTIIS, Appellant, v. UNOCAL CORPORATION and the Alaska Workers’ Compensation Board, Appellee.
    No. S-10098.
    Supreme Court of Alaska.
    Jan. 31, 2003.

      Joseph A. Kalamarides, Randall S. Cava-naugh, Kalamarides & Lambei't, Inc., Anchorage, for Appellant.

      Richard L. Wagg, Russell, Tesehe, Wagg, Cooper & Gabbert, Anchorage, for Appellee Unocal Corporation.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

The main question presented is whether the Workers’ Compensation Board erred in applying a clear and convincing standard of proof to an employer’s claim for reimbursement of benefits based on fraud. We conclude that it did. Alaska Statute 44.62.460(e) directs that the standard of proof in administrative hearings be by a preponderance of the evidence, unless applicable law specifies a different standard. As no statute or rule relating to reimbursement claims addresses the issue of what standard of proof is appropriate, the default standard of this section applies.

I. FACTS AND PROCEEDINGS

Timothy DeNuptiis was injured while working for Unocal in September 1996. An accident on an oil platform left him unable to work for several periods in 1996 and 1997 due to pain in his neck, wrist, and lower back. Unocal paid $700 per week in temporary total disability benefits from September 9 to October 13, 1996; December 13 to December 15, 1996; and May 12 to October 19, 1997.

In November 1997 Unocal filed a contr-oversion notice with the Alaska Workers’ Compensation Board, claiming that it had collected evidence on several surveillance videotapes “that [DeNuptiis] is exaggerating his claims to obtain benefits.” Unocal further explained that “[DeNuptiis] has been determined able to return to work as of 6-8-97 based on the report of Dr. Brockman,” an orthopedic surgeon who examined DeNuptiis at Unocal’s request. Unocal stated that it was “pursuing recovery pursuant to AS 23.30.250.”

Alaska Statute 23.30.250(a) imposes civil liability and criminal penalties for knowing false statements in workers’ compensation cases. Subsection .250(b) authorizes the board to order reimbursement of fraudulently obtained benefits and costs and fees incurred in obtaining reimbursement and in defending any claim for benefits:

If the board, after a hearing, finds that a person has obtained compensation, medical treatment, or another benefit provided under this chapter by knowingly making a false or misleading statement or representation for the purpose of obtaining that benefit, the board shall order that person to make full reimbursement of the cost of all benefits obtained. Upon entry of an order authorized under this subsection, the board shall also order that person to pay all reasonable costs and attorney fees incurred by the employer and the employer’s carrier in obtaining an order under this section and in defending any claim made for benefits under this chapter. If a person fails to comply with an order of the board requiring reimbursement of compensation and payment of costs and attorney fees, the employer may declare the person in default and proceed to collect any sum due as provided under AS 23.30.170(b) and (e).

Neither subsection specifies a standard of proof. Unocal argued before the board that it should apply the preponderance standard. DeNuptiis advocated the higher clear and convincing standard.

The board concluded that clear and convincing was the appropriate standard to be used in section .250 claims. Noting that Unocal’s charge was essentially that DeNup-tiis was malingering to obtain benefits, the board quoted and agreed with Professor Larson’s recommendation that malingering should be found “only upon positive and convincing evidence”:

[A] heavy burden should be upon the party that alleges malingering.... There are several reasons for such a rule. One is that a mistaken inference here works a particularly severe hardship, for if the claimant is in fact genuinely disabled, he or she suffers the double blow of being deprived of compensation and of being publicly labeled a liar and a cheat. Another is the pervading remedial character of [workers’ compensation] legislation. Still another is the imperfect state of medical knowledge in many of the fields here involved, in spite of spectacular advances in recent decades.

The board also supported its conclusion with a number of reasons:

[W]e find a § 250 petition is criminal in nature. The statute provides for punishment under AS 11.46.180, theft by deception. Second, the implications of our finding a § 250 petition violation has severe and serious financial implications under § 250(b). Third, a stigma is associated with an individual being labeled a “malingerer]” or “liar” or the like. Next, from a policy perspective, proving a mere preponderance of evidence to terminate all benefits under a § 250 petition does not strike a chord of fairness; employers have much greater resources with which to investigate. Finally, the elements of a § 250 petition should be more difficult to prove to avoid the use of § 250 as a sword to coerce an employee every time a minor inconsistency in the evidence is found.

The board then proceeded to evaluate the evidence based on the clear and convincing standard. It concluded that Unocal had failed to prove that DeNuptiis had made knowingly false statements in support of his benefits claim and denied Unocal’s request for reimbursement. But two of the three board members filed a separate statement indicating that if the preponderance of the evidence standard had been used they would have found in favor of Unocal.

Unocal petitioned for reconsideration on the standard of proof issue. The board granted reconsideration but reaffirmed its earlier ruling:

Having granted reconsideration, we now consider whether our decision in DeNupti-is II adopting the “clear and convincing” standard of proof was proper. For the reasons detailed below, we reaffirm our decision that the standard should be “clear and convincing” evidence. We have considered the employer’s argument and reviewed the applicable caselaw. Nevertheless, we continue to find the criminal sanctions provided under a § 250 petition, and the ramifications therein, mandate a higher standard of proof than “preponderance of the evidence.” The caselaw on which the employer relies is civil and does not have criminal sanctions intertwined.
Furthermore, an employee enjoys the presumption of compensability. AS 23.30.120. Therefore, we find it would be inconsistent .to authorize an employer to unilaterally cease payments of benefits on an alleged violation of § 250, based on a preponderance of evidence. Utilizing such a standard would run contrary to the provisions of AS 23.30.120 which protect an injured worker from having his or her benefits terminated. Therefore, we find a higher standard of proof is required.

Unocal appealed to the superior court. On appeal, Superior Court Judge Karen L. Hunt ruled that the board should have used a preponderance of the evidence standard of review. Judge Hunt reasoned that subsection (b) of section .250 is a civil remedial provision and that while it contains no indieation as to what standard of proof should be used, civil fraud in Alaska, in the absence of statute, has traditionally been proved using a preponderance of the evidence standard. Judge Hunt also relied on AS 44.62.460(e), a subsection of the Administrative Procedure Act, that calls for a preponderance of the evidence standard of proof “unless a different standard of proof is stated in the applicable law.” Judge Hunt found that reimbursement claims were governed by this provision.

On remand from the superior court’s decision, the board concluded by a two-to-one margin that Unocal had shown by a preponderance of the evidence that DeNuptiis “knowingly made false and misleading statements to obtain benefits.” On appeal to the superior court, Judge Fred Torrisi ruled that Judge Hunt’s earlier decision on the standard of proof was the law of the case. He found that the board’s decision was supported by substantial evidence and affirmed it. This appeal followed.

II. DISCUSSION

A. The Standard of Proof To Be Used in Reimbursement Claims Is the Preponderance of the Evidence Standard.

The question of what standard of proof applies to a given issue in a given case is a question of law. Ordinarily we use our independent judgment on questions of law unless the “issue involves agency expertise or the determination of fundamental policy questions on subjects committed to the agency.” If the issue involves agency expertise or fundamental policy questions, we review under the reasonable basis standard and defer to the agency if its interpretation is reasonable. We believe that the board’s decision to apply a clear and convincing standard of proof is a policy decision that should be reviewed deferentially. The board found that the clear and convincing standard was necessary to prevent the threat of a reimbursement suit from being used for coercive purposes against an employee. In effect, the board decided that the heightened standard of proof was necessary to maintain a fair balance between the interests of employees and those of employers. This is a policy determination.

Further, the board has been delegated broad powers to administer the Workers’ Compensation Act. “The Board is authorized to formulate policy, interpret statutes, adopt and enforce regulations.” Specifically, the Department of Labor may adopt, subject to approval by a majority of the board, “rules for all panels; and ... regulations to carry out the provisions of [the Workers’ Compensation Act].” In conducting a hearing, “the board is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by [the act].” Further, the board has been delegated the authority to “conduct its hearings in the manner by which it may best ascertain the rights of the parties.” Since the board’s decision to use a clear and convincing standard of proof was policy-based and concerned a subject that is within the general authority of the board, we will uphold the decision of the board if it can be said to be a reasonable interpretation of governing law.

A subsection of the Administrative Procedure Act, AS 44.62.460(e)(1), calls for a default standard of proof by a preponderance of the evidence in cases where another standard of proof is not set by applicable law: “Unless a different standard of proof is stated in applicable law the (1) petitioner has the burden of proof by a preponderance of the evidence .... ”

This section applies to hearings before the Workers’ Compensation Board. Alaska Statute 44.62.330(a)(15) includes the Alaska Workers’ Compensation Board within the coverage of the Administrative Procedure Act “where procedures are not otherwise expressly provided by the Alaska Workers’ Compensation Act.” In a number of cases we have recognized the application of other rules specified in AS 44.62.460 to workers’ compensation proceedings.

Based on the board’s delegated rule-making authority, the board could adopt a rule that the standard of proof in reimbursement proceedings should be by clear and convincing evidence. Such a rule could reasonably fall within the excepting language of AS 44.62.460(e) as “a different standard of proof ... stated in applicable law.” But no such rule exists and in its absence subsection .460(e)(1) governs. We therefore conclude that the board’s application of the clear and convincing standard in the present case was not a reasonable interpretation of governing law.

B. The Preponderance Standard Is Not Unconstitutional.

DeNuptiis argues that applying a preponderance of the evidence standard is unconstitutional on due process and equal protection grounds. His premise as to both grounds is that AS 23.30.260(b) remedy is penal, and that because of this, a heightened standard of proof is required. But this premise is incorrect, as subsection .250(b) only requires restitution of benefits that were fraudulently obtained and reimbursement of the employer’s expenses occasioned by the fraud.

Due process does require a heightened standard of proof in certain categories of civil cases. Thus in Santosky v. Kramer the United States Supreme Court held that a standard at least as demanding as clear and convincing evidence was necessary in termination of parental rights cases. Similar elevated standards are necessary in involuntary civil commitments, deportation proceedings, and denaturalization proceedings. Each of these categories involves sensitive liberty interests and each involves attempts by the government to deprive individuals of such interests. By contrast, the United States Supreme Court has held that the preponderance of the evidence standard is adequate in paternity cases where the main interest of the putative father is avoiding the “serious economic consequences” that flow from a court order establishing paternity. The United States Supreme Court has also observed that in a civil case between private parties involving a monetary dispute a preponderance of the evidence standard is adequate: “The typical civil case involves a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiffs burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.”

Due process does not require an elevated standard of proof in every civil proceeding involving non-monetary liberty interests. We held in Disciplina/ry Matter of Walton that employing a preponderance standard in attorney disciplinary proceedings satisfied due process: “[W]e are unwilling to hold that the risk of an incorrect factual determination in a bar disciplinary proceeding should be placed primarily on the public. Because there are substantial interests on both sides, the risk of error should be borne equally.”

The usual construct for determining whether a standard of proof is appropriate is that suggested by Mathews v. El-dridge. Three factors are considered:

the private interest affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

In considering these factors a strong presumption of validity must be afforded to the legislature’s choice as to the appropriate standard.

The Mathews factors are directly aimed at cases involving litigation between the government and a private individual. Adapting them to this case, they do not point to a conclusion that the preponderance standard is unconstitutional. The interest of the litigants on both sides is primarily monetary. It is not fundamentally unfair that they share the risks of an erroneous decision roughly equally. Of course substitute safeguards might be applied. A more demanding standard could be imposed on the employer. While as a matter of policy this might be a wise choice, we are unable to say that it is constitutionally required. The parties’ main interests are economic and their interests are equal in the eyes of the law. Further, a worker’s economic interests do not stand on a higher footing than the economic interests of any litigant against whom a civil fraud claim is brought. As noted, in civil fraud cases we have applied a preponderance standard. There are at least two governmental interests involved. The first is the interest that underlies the workers’ compensation system: making adequate compensation available to injured workers expeditiously and without undue cost. The second is to deter and redress fraud. In the context of this dispute these goals point in opposite directions; they are sufficiently balanced as not to dictate any particular conclusion on the question before us.

Considering, then, the three Mathews factors, the presumption of statutory validity, the standard we use in civil fraud cases, and the nature of the civil cases in which a heightened standard of proof has been found to be constitutionally required, we conclude that employing a preponderance standard in subsection .250(b) cases does not violate due process.

DeNuptiis’s equal protection arguments are that persons subject to subsection .250(a) have more protection than workers subject to subsection .250(b), and that taxpayers subject to civil fraud claims have the protection of a clear and convincing evidence standard. But the premise of the argument concerning persons subject to subsection .250(a) is false, for there is no reason to think that those who are merely civilly liable under subsection .250(a) are in fact protected by a clear and convincing evidence standard. Based on our case law, we assume that the standard of proof in such cases would be by a preponderance of the evidence. Likewise, DeNuptiis’s argument that taxpayers accused of fraud are protected by a clear and convincing standard is unavailing to show a denial of equal protection. Taxpayers are subject to penalties in addition to the amount of taxes they owe, whereas the subsection .250(b) remedy is limited to restitution and reimbursement.

C. Appellant’s Other Points Lack Merit.

DeNuptiis also argues that the board’s decision is not supported by substantial evidence in general or in particular with respect to the termination date for his benefits. While there is conflicting evidence concerning whether DeNuptiis knowingly made a false statement or representation in order to obtain benefits, there is substantial evidence to support the board’s decision.

DeNuptiis’s last argument is that instead of a June 7, 1997 cut-off date for his benefits, the board should have used November 12, 1997, the date on which two doctors formally expressed their opinions that he was malingering. But the board’s use of June 7, 1997, is based on substantial evidence. That was the date that DeNuptiis was videotaped participating in various activities in which he exhibited no irregular neck posture. Dr. Brockman testified that DeNuptiis was at that point healthy enough to go back to work.

III. CONCLUSION

We conclude that Judge Hunt correctly remanded this case to the board with instructions to employ a preponderance of the evidence standard, that this standard is constitutional, and that the board’s decision on remand from Judge Hunt’s order is supported by substantial evidence. The decision of the superior court affirming that decision is therefore AFFIRMED.

BRYNER, Justice, not participating.

      . AS 23.30.250(a) provides:
      A person who ... knowingly makes a false or misleading statement, representation, or submission related to a benefit under this chapter ... is civilly liable to a person adversely affected by the conduct, is guilty of theft by deception as defined in AS 11.46.180, and may be punished as provided by [the sentencing provisions] AS 11.46.120 — 11.46.150.

      . AS 23.30.250(b).

      .The difference between the two standards is as follows:
      Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of the jurors that the asserted facts are probably true. If clear and convincing proof is required, there must be induced a belief that the truth of the asserted facts is highly probable.

        Spenard Action Comm. v. Lot 3, Block 1, Evergreen Subdivision, 902 P.2d 766, 774 n. 15 (Alaska 1995) (citations omitted).

      . 2 A. Larson, The Law of Workmen’s Compensation § 42.24(d) (1994) (citation omitted) (now 3 A. Larson, Workers’ Compensation Law § 56.05[4] (1999)).

      . Judge Hunt cited Gabaig v. Gabaig, 717 P.2d 835, 838-39 (Alaska 1986) and Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

      . O’Callaghan v. Rue, 996 P.2d 88, 94 (Alaska 2000).

      . Id,; Lakosh v. Alaska Dep't of Envtl. Conserv., 49 P.3d 1111 (Alaska 2002).

      . Wausau Ins. Cos. v. Van Biene, 847 P.2d 584, 587 (Alaska 1993).

      . AS 23.30.005(h).

      . AS 23.30.135(a).

      . Id.

      . O’Callaghan, 996 P.2d at 94; Mukluk Freight Lines, Inc. v. Nabors Alaska Dulling, Inc., 516 P.2d 408, 411-12 (Alaska 1973).

      . See Whaley v. Alaska Workers' Compensation Bd., 648 P.2d 955, 957-58 (Alaska 1982); Commercial Union Cos. v. Smallwood, 550 P.2d 1261, 1266-67 (Alaska 1976); Employers Commercial Union Ins. Group v. Schoen, 519 P.2d 819, 823-24 (Alaska 1974); Cook v. Alaska Workmen's Compensation Bd., 476 P.2d 29, 31 (Alaska 1970).

      . Assuming that "applicable law” might -reasonably include a well-established decision law principle as to the applicable standard of proof, we note that there is no well-established principle in Alaska that civil fraud claims are governed by a clear and convincing standard. To the contrary, our common law decisions require only a preponderance of tire evidence. Dairy Queen of Fairbanks, Inc. v. Travelers Indent. Co. of America, 748 P.2d 1169 (Alaska 1988); Gabaig v. Gabaig, 717 P.2d 835, 838 (Alaska 1986); Saxton v. Harris, 395 P.2d 71 (Alaska 1964). Further, it seems that in the only board ruling, the board employed a preponderance of evidence standard to a reimbursement claim, although neither party argued that a higher standard should have been employed. Gourley v. Qwick Constr., AWCB Decision No. 97-0255 (December 15, 1997).

      . The caption to section .250 is "Penalties for fraudulent or misleading acts.” But captions are not part of the statute. See AS 01.05.006; Ketchikan Retail Liquor Dealers Ass'n v. State, Alcoholic Beverage Control Bd., 602 P.2d 434, 438 (Alaska 1979) ("[H]eadings are not part of the law of Alaska.”), modified on other grounds by 615 P.2d 1391 (Alaska 1980).

      . 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

      . Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).

      . Woodby v. Immigration & Naturalization Servs., 385 U.S. 276, 277, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966).

      . Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960).

      . Rivera v. Minnich, 483 U.S. 574, 580-81, 107 S.Ct. 3001, 97 L.Ed.2d 473 (1987).

      . Id. at 578 n. 5, 107 S.Ct. 3001 (quoting Ad-dington, 441 U.S. at 423, 99 S.Ct. 1804).

      . 676 P.2d 1078, 1085 (Alaska 1983) (footnote omitted).

      . 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

      . Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988).

      . Rivera, 483 U.S. at 578, 107 S.Ct. 3001.

      .A worker might suffer some degree of harm to his reputation if the board were to find that he obtained benefits fraudulently. However, a worker’s reputational interest is not so fundamental that it must be protected by a heightened standard. The potential taint to an worker’s reputation is no worse than the taint suffered by any civil litigant found liable for fraud. Additionally, the reputational interests of medical or legal professionals can be substantially harmed if they are found liable for malpractice, yet such proceedings employ a preponderance standard. See Kaiser v. Sakata, 40 P.3d 800, 805 n. 16 (Alaska 2002); Shaw v. State, Dep't of Admin., 861 P.2d 566, 572 (Alaska 1993); and Dairy Queen of Fairbanks, Inc. v. Travelers Indem. Co. of America, 748 P.2d 1169, 1171 (Alaska 1988).

      . See cases cited note 14 supra.

      . See Dairy Queen, 748 P.2d at 1172 (noting "compelling" public policy reasons for applying preponderance standard in cases of arson and false swearing).

      . DeNuptiis cites 15 Alaska Administrative Code (AAC) 05.230(d).

      . Of course, subsection .250(a) is also a criminal statute. Persons accused of the crime it defines are protected by a standard of proof beyond a reasonable doubt. This differential treatment is justified by the risk of criminal sanctions.

      . 15 AAC 05.230(b) imposes a fifty percent penalty calculated on the tax deficiency.

      . DeNuptiis argues that the evidence presented is consistent with his claim of injury. He asserts the evidence shows only that he had "good and bad days.” He points to the testimony of other witnesses at the hearing that they saw DeNuptiis in pain.
      DeNuptiis did present evidence of an injury. Dr. Kufel and Jeanette Lawson reported objective evidence of an injury to DeNuptiis’s neck. Jeannette Lawson testified that DeNuptiis's biofeedback test results were consistent with his reports of pain, and that those results would be very difficult to falsify. At the same time, however, the videotapes showed that DeNuptiis's condition changed dramatically, sometimes within only a short time after he reported worsening pain. Dr. Kufel's testimony showed, for example, that DeNuptiis represented his injury as "getting worse” just two days before he was filmed exhibiting a full range of motion. Drs. Brockman and James testified that there was no physiological reason to explain these inconsistencies between DeNuptiis's appearance at the clinics, at the deposition, and on the surveillance tapes. Dr. James opined that DeNuptiis was malingering. Dr. Brockman opined that they could only be explained by a "[m]iraculous cure.”