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Kuhn v. Department of Human Services

Court of Appeals of Oregon

February 15, 2017

Khrizma KUHN, acting by and through Renee Kuhn and Gary Kuhn, Legal Guardians, Petitioner,
v.
DEPARTMENT OF HUMAN SERVICES, Respondent.

          Argued and submitted January 15, 2016.

         Offce of Administrative Hearings 20140643

          Margaret H. Leek Leiberan argued the cause for petitioner. With her on the briefs was Jensen & Leiberan.

          Michael A. Casper, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary:

         Petitioner is a developmentally disabled person who receives benefits from the Department of Human Services (DHS) on account of her disability. She seeks review of a final order of DHS that upheld the reduction of transportation service benefits under former OAR 411-330-0110(6)(a)(B) (Dec 28, 2013). The order, issued by an Administrative Law Judge (ALJ) from the Office of Administrative Hearings, concluded that certain trips were not reimbursable because they were not “social benefits, ” defined by rule to mean a service “solely intended” to assist a disabled individual to function in society. The ALJ ruled that trips do not qualify as a social benefit if they benefit someone in addition to the disabled individual.

         Held:

         The ALJ's interpretation of “social benefit, ” which DHS neither advocated nor ratified, is not entitled to deference. Based on the text of the rule, a social benefit may confer an incidental benefit to another person so long as it is solely intended to assist the disabled individual. The ALJ should determine in the first instance whether, under the correct definition of “social benefit, ” DHS was justified in reducing petitioner's transportation mileage benefit.

         Reversed and remanded.

          LAGESEN, J.

         This case is before us on a petition for review of a final order of the Department of Human Services (DHS). ORS 411.095(6); ORS 183.482. The order on review, which was issued by an administrative law judge (ALJ) of the Office of Administrative Hearings (OAH), upheld DHS's reduction of transportation service benefits provided to petitioner, a developmentally disabled adult woman, under former OAR chapter 411, division 330 ("Comprehensive In-Home Support for Adults with Intellectual or Developmental Disabilities").[1] The primary issue presented is whether, in concluding that petitioner's transportation services benefits should be reduced, the ALJ erroneously interpreted DHS's "social benefit" rule, OAR 411-330-0020(81), to prohibit the expenditure of funds for transportation that also benefits petitioner's friends or family members. We conclude that the ALJ erroneously interpreted the rule in reaching his decision and reverse and remand for reconsideration.

         The parties dispute the extent to which in-home support (IHS) funds may be used to pay for mileage for trips made to visit petitioner's family and friends. Under the rules, eligible individuals may receive IHS funds for those services authorized in their individual support plans (ISPs), if certain conditions are met.[2] See OAR 411-330-0060(1). Among other things, a service must constitute a "social benefit" to qualify for payment with IHS funds. OAR 411-330-0060(2) ("Goods and services purchased with IHS funds must be provided only as a social benefit as defined in OAR 411-330-0020."). A "social benefit" is "a service or financial assistance solely intended to assist an individual with an intellectual or developmental disability to function in society on a level comparable to that of a person who does not have an intellectual or developmental disability." OAR 411-330-0020(81).

         Community transportation services, which are transportation services "that enable an individual to gain access to community services, activities, and resources that are not medical in nature, " are among the services that an ISP may authorize. OAR 411-330-0020(19). Community transportation services may include "Reimbursement on a per-mile basis for transporting an individual to accomplish an ISP goal related task." OAR 411-330-0110(6)(a)(B). If such transportation services otherwise meet the definition of a "social benefit"-that is, are "solely intended" to assist a disabled individual to function in society comparably to a nondisabled individual-then IHS funds can be used to pay for them. OAR 411-330-0060(2). As DHS's expenditure guidelines elaborate, "Trips must be related to recipient service plan needs and goals, are not for ...


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