Ulrich v. Senior & Disabled Services Division

921 P.2d 982, 142 Or. App. 290, 1996 Ore. App. LEXIS 1036

• Court: Court of Appeals of Oregon
• Decided: July 24, 1996
• Docket: 4-0312-AZ0603; CA A86249
• Status: Published

Opinions

HASELTON, J.

Petitioner seeks review of the Senior and Disabled Services Division’s (SDSD) denial of her claim for benefits under the Spousal Pay Program. ORS 411.803; OAR 411-30-080. We affirm.

Eligibility for Spousal Pay benefits is circumscribed by one statute and two regulations. ORS 411.803 provides:

“When a married recipient of public assistance provided under ORS chapter 412 or 413 requires in-home care, the Adult and Family Services Division or the Senior and Disabled Services Division, as appropriate, shall provide that such care be compensated even though provided by the spouse, in the manner and to the extent specified by rule of the appropriate division based on the extent of need and the availability of funds therefor.” (Emphasis supplied.)

OAR 411-30-080(1) provides, in part:

“(a) In-home care provided by the spouse of an OSIP/ Title XIX client is compensable by the Division under ORS 411.803 only when the following conditions are met:

“(A) The client requires full assistance in at least four of the six activities of daily living, as determined by the assessment, and would require nursing facility placement without in-home services[.]” (Emphasis supplied.)

OAR 411-30-020 provides, in part:

“As used in these rules:

“(1) ‘Activities of Daily Living’ (ADL) means those personal functional activities required by an individual for continued well-being, health, and safety. This includes eating, dressing/grooming, bathing/personal hygiene, mobility, bowel and bladder management, and cognition.

“(14) ‘Full Assistance’ means the client is unable to do any part of the activity of daily living or task; i.e., it must be done entirely by someone else.”1 (Emphasis supplied.)

The material facts, as found in SDSD’s second amended final order, are not in dispute: Petitioner lives with her husband and three children. She suffers from various mental illnesses or disorders, including panic disorder with agoraphobia,² post-traumatic stress disorder, anxiety disorders, multiple personality disorder, and Xanax dependence.³

As a result of her various mental impairments, petitioner is unable to leave her home and requires personal and housekeeping services, which her husband provides. Moreover, petitioner becomes panic stricken and is unable to function if her husband is not visibly present.

In particular, without her husband’s visible presence, petitioner experiences panic and is unable to eat, dress or groom herself, bathe or undertake basic personal hygiene, move even within her own home, exercise bladder or bowel control, or think rationally, including orienting herself to time and place and protecting herself from common dangers.⁴ Conversely, when her husband is visibly present, petitioner’s panic lessens⁵ and she is generally able to perform each of those functions.

In January 1994, petitioner applied for Spousal Pay benefits, by which her husband would be compensated for his provision of personal care and housekeeping services. In its second amended final order, SDSD denied that application, concluding that petitioner did not require “full assistance” in performing at least four of the six activities of daily living:

“Although [petitioner] needs [her husband’s] visible presence and often needs prompting or encouragement from him to perform the activities of daily living, [petitioner] physically is able to do all or part of each of the activities of daily living, except cognition. Therefore, in the activities in which [petitioner] needs assistance, she needs only minimal or substantial assistance. In no area except cognition does she require full assistance.”

On review, petitioner challenges SDSD’s order on two grounds: (1) The agency’s findings do not support its determination that she does not require “full assistance” in at least four of the six activities of daily living. (2) SDSD’s interpretation and application of OAR 411-30-020 and OAR 411-30-080(1) to deny benefits violates the Americans With Disabilities Act, 42 USC § 12132, by impermissibly discriminating against claimants with mental, rather than physical, impairments. The second assignment was not raised and preserved below and does not present error apparent on the face of the record. Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991). Accordingly, we limit our discussion to petitioner’s first assignment of error.

Petitioner argues that SDSD’s “full assistance” conclusion is wrong because the uncontroverted facts demonstrate that, unless her husband is present, she “is unable to do any part of’ any activity of daily living. OAR 411-30-020(14). She reasons that SDSD’s denial of benefits was ultimately premised on its assessment of her capacity when her husband was present and that that analysis improperly “shifted the focus from Mrs. Ulrich’s level of function * * * to Mr. and Mrs. Ulrich’s ability to perform the [Activities of Daily Living] as a ‘team.’ ”

SDSD responds that petitioner’s reading of the definition of “full assistance” in OAR 411-30-020(14) is impermissibly selective. In particular, the agency asserts that petitioner ignores the definition’s express qualification, i.e., “the activity of daily living or task * * * must be done entirely by someone else.” SDSD contends that the record demonstrates that, although her husband’s presence may facilitate petitioner’s performance of various activities, her husband does not perform any, much less all, of an activity or task himself. In that sense, SDSD contends, petitioner’s situation is directly analogous to that of a person who is unable to climb into a bathtub but, once so assisted, can bathe herself:

“Under the OAR 411-30-020(14) definition, that person would not require ‘full assistance’ with bathing because the task is not ‘done entirely by someone else.’ Notwithstanding the fact that the person could not take a bath at all without preliminary assistance, he could not use that as a basis for obtaining spousal pay benefits. Similarly, petitioner’s husband testified that petitioner ‘would never get into the bathroom to bathe’ if he were not there. However, once he has motivated petitioner to bathe, he does not have to wash her, as she is able to bathe herself. * * * Nothing in the SDSD regulations suggests that petitioner’s situation should be treated differently from that of a physically disabled person who also requires the enabling presence of an assistant to bathe or perform other ADLs.”

There is merit in each party’s position. Petitioner is caught in a classic “catch-22”: She is generally incapable of performing daily living activities and tasks — an inability that would ordinarily qualify her for Spousal Pay benefits. However, because the single exception to her general incapacity is that she is able to perform such tasks in her husband’s presence, and without his physical assistance, she is deemed ineligible for Spousal Pay benefits.

Given petitioner’s singular circumstances — circumstances SDSD almost certainly did not contemplate in promulgating the Spousal Pay Program rules — the agency could have construed and applied those rules to provide benefits in this case. SDSD could, for example, have determined that, because petitioner is incapable of performing any part of any living task except when her husband is present, her condition, on balance, requires “full assistance,” triggering an entitlement to benefits.⁶ But SDSD did not opt to so construe its rules. The construction that SDSD did adopt and apply is “plausible” and is neither “inconsistent with the wording of the rule itself, [nor] with the rule’s context, [nor] with any other source of law.” Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994). Accordingly, we are constrained to sustain SDSD’s interpretation of its own rule. Id.

The dissent argues forcefully that SDSD’s interpretation and application of its rules is not “plausible.” In particular, the dissent asserts that “[t]he rule provides a means for the spouse to act as a substitute care provider and thereby to avoid the need for nursing home care,” 142 Or App at 300, and that SDSD’s decision in this instance cannot be reconciled with that purpose.

We agree with the dissent’s assessment of the purposes of the Spousal Pay Program but not with its conclusion. ORS 411.803 permits SDSD to condition eligibility for spousal benefits as it sees fit, and SDSD has narrowly circumscribed that entitlement. Thus, under OAR 411-30-080(1)(a)(A), the fact that the client “would require nursing facility placement without in-home services” does not, by itself, trigger an entitlement to benefits. Instead, the claimant must also require “full assistance” — not “minimal” or “substantial” assistance — in at least four of the six ADLs. “Full assistance” means that the ADLs “must be done entirely by someone else.”

Viewed in its entirety, the Spousal Pay Program as defined and conditioned in OAR 411-30-080 is designed to compensate spouses who act as substitute care providers by providing “full assistance” services to their disabled husbands or wives. Thus, entitlement depends on a spouse actually performing the same tasks that a third-party care provider would — i.e., actually performing at least four of the six activities of daily living for the client.

Here, Mr. Ulrich did not actually perform any of the activities of daily living. He clearly facilitated his wife’s performance of those tasks, but facilitation is not performance. Thus, it was not implausible for SDSD to read its rules as not affording any entitlement to benefits.⁷

In sustaining SDSD’s interpretation, we fully recognize that, in this case, that construction yields a poignant, arguably counterintuitive, result. As petitioner’s able counsel observed:

“[Under SDSD’s construction,] if Mr. Ulrich were to return to work, leaving Mrs. Ulrich in a nonfunctional state, she would qualify for the Spousal Pay Program and he could leave work!”

Nevertheless, the remedy, if any, lies elsewhere.

Affirmed.

1 OAR 411-30-020 also includes definitions for “minimal assistance” and “substantial assistance”:

“(23) ‘Minimal Assistance’ means the client is able to perform a majority of a task, but requires some assistance.

“(34) ‘Substantial Assistance’ means a client can perform only a small portion of a task and requires assistance with a majority of a task.”

2 The American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (Third Edition-Revised 1987) at 236 describes agoraphobia:

“Agoraphobia is the fear of being in places or situations from which escape might be difficult (or embarrassing) or in which help might not be available in the event of a panic attack. As a result of this fear, there are either travel restrictions or need for a companion when away from home, or there is endurance of agoraphobic situations despite intense anxiety.”

3 Xanax is a brand name for benzodiazepine, which is prescribed for the management of anxiety disorders. Petitioner was first given Xanax in the mid-1980’s to help relieve anxiety associated with other disorders. However, after she reached a certain tolerance level, her use of the drug exacerbated, rather than mitigated, her anxiety-related symptoms. Petitioner’s physician, Dr. Schenkel, described the effects of Xanax withdrawal:

“Severe benzodiazepine dependence and withdrawal can make heroin induced problems seem small: acute withdrawal following complete abstinence can last for several years. Withdrawal is characterized by chronic panic and anxiety, sensory overstimulation, and a need for constant reassurance.”

4 Dr. Schenkel described an illustrative instance of petitioner’s panic disorder, post-traumatic stress disorder, and Xanax dependence:

“In early August, 1994, while [petitioner] was asleep, [her husband] left the house to pick peaches and was gone for about fifty minutes. [Petitioner] awoke soon after he left and was quickly panic-stricken: she became confused, disoriented, and incontinent of urine and feces, and she was unable to breathe normally, walk, or talk. She was essentially paralyzed both physically and cognitively.”

5 Dr. Schenkel noted that, even when petitioner’s husband is present, her anxiety does not completely dissipate:

“[Petitioner] suffers from varying degrees of panic when [her husband] is present and severe episodes can last anywhere from hours to weeks. During these times [petitioner] requires [her husband’s] verbal reassurance, supervision and physical assistance to meet her basic needs. At her best [petitioner] struggles with substantial anxiety and is at no time fully functional.”

6 Such a construction would, no doubt, have been “plausible.” Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994). However, as amplified below, we disagree with the dissent that SDSD’s construction was, consequently, implausible.

7 The actual rendition of full assistance distinguishes this case from the first hypothetical posed in the dissent. See 142 Or App at 301. In that hypothetical, the client is unable to perform the ADLs except in the presence of someone other than his or her spouse. Presumably, in that scenario, the spouse would be required to render full assistance in the third person’s absence, by actually performing the ADLs for the client.

The dissent also poses a hypothetical involving assistance in eating, and posits that “the requirement of‘full assistance’ must be flexible enough to encompass any facet of the function necessary to its completion.” 142 Or App at 301-02. That approach, however commendable, cannot be reconciled with — and, indeed, obviates — -the definition of “substantial assistance” in OAR 411-30-020(34). See 142 Or App at 292 n 1.