Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Boatwright v. Department of Human Services

Court of Appeals of Oregon

August 15, 2018

Brenda BOATWRIGHT, Petitioner,
v.
DEPARTMENT OF HUMAN SERVICES, Respondent.

          Argued and submitted April 20, 2017

         Department of Human Services TFU14

          William J. Macke argued the cause and fled the briefs for petitioner.

          Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary: Claimant seeks review of an order of the Department of Human Services (DHS) determining that DHS is entitled to recover an overpayment of funds paid to claimant for child care services that she provided to parents while listed as a provider for DHS's Employment Related Day Care program (ERDC). Claimant contends that DHS erred in determining that she was overpaid when she received payments for child care after failing to report her husband's DUII but before she had been determined by DHS to be ineligible for listing as a care provider.

         Held:

         Under the only plausible interpretation of the agency's administrative rule, OAR 461-165-0180, when a child care provider has become eligible to be listed as a provider for ERDC, the provider can become ineligible for payments only after a determination of ineligibility under OAR 461-165-0180(2).

         Reversed.

         [293 Or.App. 302] EGAN, C. J.

         Claimant seeks judicial review of an order of the Department of Human Services (DHS) determining that DHS is entitled to recover an overpayment of funds paid to claimant for child care services that she provided to parents enrolled in DHS's Employment Related Day Care program (ERDC). Claimant challenges DHS's determination that she was ineligible to receive payments for child care and therefore incurred an overpayment. We agree with claimant and therefore reverse.

         The facts are largely undisputed. In October 2012, claimant applied to be listed as a child care provider with ERDC, a program that assists low-income working families to pay the cost of child care. OAR 461-1012-0010(7). Only providers who are listed with the program as "eligible" may serve ERDC clients, and DHS pays those providers directly. Former OAR 461-165-0160 (July 1, 2011).[1] DHS determined, after conducting criminal background checks of the adults in claimant's home, that claimant was approved to receive ERDC payments and included her on a list of eligible child care providers.

         DHS's administrative rules required ERDC-approved providers to meet the requirements set forth in former OAR 461-165-0180 (Oct 1, 2012). At the relevant time, DHS's rules required that a day care provider notify DHS within 10 days of any arrest of a family member in the provider's household who was age 16 or older. OAR 461-165-0180 (7)(h)(A). Claimant was made aware of that requirement. On her application, claimant signed a statement agreeing with requirements of DHS's Child Care Provider Guide, which describes the provider's obligation to report arrests within 10 days.[2] Claimant also attended an orientation, which included a review of the requirement that arrests or convictions of provider household members be reported within 10 days.

         [293 Or.App. 303] In January 2013, claimant's husband was arrested for driving under the influence of intoxicants (DUII), and he was subsequently convicted. Unbeknownst to claimant, by that time, DHS had completed its background check of claimant's household members and had determined that claimant was "approved." Because claimant thought that DHS would learn of her husband's arrest through the criminal background check, she did not notify DHS of the arrest as required by DHS's rules.

         Beginning in March 2013, claimant provided child care services to three ERDC clients over a period of almost two years, for which she received payments from DHS totaling $21, 476.07. When claimant applied to renew her ERDC listing in November 2014, she reported her husband's January 2013 DUII arrest and conviction. DHS denied claimant's request to be listed because of the DUII conviction. Claimant did not challenge that determination.

         Then, in May 2015, DHS notified claimant that, as a result of her failure to report her husband's January 2013 DUII arrest or conviction within 10 days, claimant had been overpaid for the period of March 2013 through December 2014. DHS sought repayment of $21, 476.07. After a hearing, an administrative law judge (ALJ) for the Office of Administrative Hearings upheld DHS's determination of an overpayment, concluding that, as a result of claimant's failure to report her husband's January 2013 DUII within 10 days, she had become ineligible for payments after that date.

         On judicial review, claimant contends that the ALJ erred. Claimant asserts that, after she had been approved for payment by ERDC, ineligibility could occur only after a determination of DHS through a contested case hearing. DHS responds that claimant's failure to comply with the requirement of OAR 461-165-0180 to report arrests resulted in automatic ineligibility.

         DHS administers the ERDC program under the requirements of its administrative rules. OAR 461-165-0160(1) provides:

         "[DHS] makes payments on behalf of eligible clients to the providers they select for their children. The payments

         [293 Or.App. 304] are made directly to the provider[.] To be eligible for payment, a provider must:

"(a) Charge [DHS] clients at a rate no higher than the rate charged other customers;
"(b) Provide [DHS] his or her social security number (SSN) or IRS identification number; and "(c) Meet the requirements of OAR 461-165- 0180."

(Emphasis added.) Most of the requirements for ERDC providers are stated in OAR 461-165-0180, a lengthy rule set out in the appendix to this opinion. With exceptions not applicable here, OAR 461-165-0180(1) provides that DHS "must approve a child care provider to receive payment for child care if information available to [DHS] provides no basis for denying eligibility." It is undisputed that claimant applied in October 2012 to be listed as a provider, and that she was approved to receive payments from ERDC by March 2013.

         DHS contends that, because OAR 461-165-0160 provides that a provider is entitled to receive payments only when the provider meets all of the requirements of OAR 461-165-0180, claimant automatically became ineligible for payment after she failed to report her husband's arrest as required by OAR 461-165-0180(7)(h)(A). DHS notes that under former OAR 461-195-0501(1)(c)(A) (Oct 1, 2012), an overpayment is defined as a payment made to "an ineligible provider." In DHS's view, subsequent to claimant's failure to report her husband's arrest, she became ineligible, and any payments made after that time were overpayments.

         The interpretation of the DHS's administrative rules presents a question of law that we review for legal errOr.App. State v. McFerrin, 289 Or.App. 96, 99, 408 P.3d 263 (2017), rev allowed, 362 Or.App. 794 (2018). In interpreting the administrative rules, we apply the same analytical framework that applies to the construction of statutes. State v. Hogevoll, 348 Or.App. 104, 109, 228 P.3d 569 (2010). When, as here, an agency's interpretation of its own rule is challenged, we give significant deference to that interpretation and are required to affirm it if it is "plausible," that is, if it is not inconsistent with the wording of the rule itself or with the rule's context, or with any other source of law. Don't Waste Oregon Com. v. [293 Or.App. 305] Energy Facility Siting, 320 Or.App. 132, 142, 881 P.2d 119 (1994). We have reviewed the applicable administrative rules, and conclude that DHS's interpretation of them is not plausible because it is inconsistent with their texts as understood in context.

         As DHS points out, under OAR 461-195-0501(1)(c)(A), an overpayment is defined, in part, as a payment made to "an ineligible provider."[3] As relevant here, OAR 461-165-0180(2) states that ineligibility for payment "may result from any of the following:

"(a) A finding of 'denied.' A provider may be denied * * * if, after conducting a weighing test *** [DHS] finds substantial risk to the health or safety of a child[.]
"(b) A finding of 'failed.' A provider may be failed if [DHS] determines, based on a specific eligibility requirement and evidence, that a provider does not meet the eligibility requirements of this rule."[4]

         With respect to the disputed payments, DHS did not conduct an administrative process to make a finding of "denied" or "failed." It is undisputed that claimant provided child care to ERDC clients for the periods for which she was paid.[5]Thus, claimant did not become ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.