Adams v. Colorado Dept. of Social Services

• Decision Date: 29 August 1991
• Docket Number: No. 90CA0988,90CA0988
• Citation: 824 P.2d 83
• Parties: Lula ADAMS, Avelino Alvarez, Isabelle Archuletta, Julian Baker, Donna Barger for Lori Barger, Emily Bell, David Bennett, Clara Bonger, Paul Boston, Jessie Boyd for Bonnie Boyd, Pinya Breyman, Jeanette Buttz, Constance Carey, Mary Cleveland, Annie Chilcote, Pearl Colegrove, Marjorie Collard, Carl Courts, Imogene Davis, Lois Davis, Charles DiDuglielmo, Gladys Ellis, Alfred Feeruz, Anna L. Fisher, Edna Fisher, Gilbert Gallegos, Annie Garcia, Roberta Garrett, Elizabeth Goff, Viola Goldsmith, Angela Griffie, Carol Gunderson, Silvina Guzman, Jeffrey Lee Ham, Mary Harrison, Kyo Ho, Marie Horchem, Luanne Hudson, Charles Hutto, Martha Lenhart for Carl Jabs, Macolee Jackson, May Jenberg, Edward T. Johnson, Zenobia Juniel, Rosetta Kellum, Mary E. Kirsch for Karen Ann Kirsch, Peter Lavender, Stephen S. Law, Marvin Lovette for Angela and Laura Lovette, Mary Lummie, Dominic Macaluso, Corina Maestas, Deena Mansfield, Sandra Manzanares for Jose Manzanares, Lilly Manzanares, Connie Martinez, Jennie Martinez, Mary Hermisillo for John Martinez, Shirley Maynard, Mitchell P. McAndrews, Colleen McCrum, Ruby McElroy, Leslie Mejia, Lillian Mendelsohn, Jerry Merseal, Ethel Millspaw, Marie Moreno, Linda Morris for Brenda Morris, Mary M. Nichols, Larry Nitsch, Dora Ortiz, Ralph Osborne, Vivian Pappas for Leah Pappas, Gordon Paulson, Tracy Peterson, Jimmie Phelps, Patricia Roem for Cathy Prescott, Jack Provenzano, Elizabeth Reckerd, Frances Reed, Dorothy Phillips Roach, Harold Rollins, Pauline Sanchez, Claire Sanwick, Lucille Schreiber, Mary Simon, Brian R. Stanley, Avelina Starr, Zalmon Stranzanski, Walter Taschner, Gertrude Tatum, William Troppmann, Lillie Tynes, Lou Etta Vaganka, Walter Weingarten, Mrs. Cecilia White for Julia C. White, Robert White, Helen Zink, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. COLORADO DEPARTMENT OF SOCIAL SERVICES, Colorado State Board of Social Services, The Division of Administrative Hearings, Department of Administrat
• Court: Colorado Court of Appeals

Page 83

824 P.2d 83

Lula ADAMS, Avelino Alvarez, Isabelle Archuletta, Julian

Baker, Donna Barger for Lori Barger, Emily Bell, David

Bennett, Clara Bonger, Paul Boston, Jessie Boyd for Bonnie

Boyd, Pinya Breyman, Jeanette Buttz, Constance Carey, Mary

Cleveland, Annie Chilcote, Pearl Colegrove, Marjorie

Collard, Carl Courts, Imogene Davis, Lois Davis, Charles

DiDuglielmo, Gladys Ellis, Alfred Feeruz, Anna L. Fisher,

Edna Fisher, Gilbert Gallegos, Annie Garcia, Roberta

Garrett, Elizabeth Goff, Viola Goldsmith, Angela Griffie,

Carol Gunderson, Silvina Guzman, Jeffrey Lee Ham, Mary

Harrison, Kyo Ho, Marie Horchem, Luanne Hudson, Charles

Hutto, Martha Lenhart for Carl Jabs, Macolee Jackson, May

Jenberg, Edward T. Johnson, Zenobia Juniel, Rosetta Kellum,

Mary E. Kirsch for Karen Ann Kirsch, Peter Lavender, Stephen

S. Law, Marvin Lovette for Angela and Laura Lovette, Mary

Lummie, Dominic Macaluso, Corina Maestas, Deena Mansfield,

Sandra Manzanares for Jose Manzanares, Lilly Manzanares,

Connie Martinez, Jennie Martinez, Mary Hermisillo for John

Martinez, Shirley Maynard, Mitchell P. McAndrews, Colleen

McCrum, Ruby McElroy, Leslie Mejia, Lillian Mendelsohn,

Jerry Merseal, Ethel Millspaw, Marie Moreno, Linda Morris

for Brenda Morris, Mary M. Nichols, Larry Nitsch, Dora

Ortiz, Ralph Osborne, Vivian Pappas for Leah Pappas, Gordon

Paulson, Tracy Peterson, Jimmie Phelps, Patricia Roem for

Cathy Prescott, Jack Provenzano, Elizabeth Reckerd, Frances

Reed, Dorothy Phillips Roach, Harold Rollins, Pauline

Sanchez, Claire Sanwick, Lucille Schreiber, Mary Simon,

Brian R. Stanley, Avelina Starr, Zalmon Stranzanski, Walter

Taschner, Gertrude Tatum, William Troppmann, Lillie Tynes,

Lou Etta Vaganka, Walter Weingarten, Mrs. Cecilia White for

Julia C. White, Robert White, Helen Zink, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. COLORADO DEPARTMENT OF SOCIAL SERVICES, Colorado State Board

of Social Services, The Division of Administrative Hearings,

Department of Administration, Controller of the State of

Colorado, Irene Ibarra, Director of the Colorado Department

of Social Services, in her official capacity, and Robert

Bauserman, Robbie L. Bean, Feliz S. Cordova, Suzanne E.

Dosh, Sharon L. Hill, Marshall Kaplan, Mary Kyer, Robert J.

Richardson, and John P. Stone, members of the Colorado State

Board of Social Services, each individually and in his or

her official capacity, Defendants-Appellees.

No. 90CA0988.

Colorado Court of Appeals,

Div. III.

Aug. 29, 1991.

As Modified on Denial of Rehearing

Sept. 19, 1991.

Certiorari Denied Jan. 27, 1992.

Legal Aid Society of Metropolitan Denver, Peter Komlos-Hrobsky, Mary Catherine Rabbitt, Denver, for plaintiffs-appellants.

Gale Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Wade Livingston, Asst. Atty. Gen., Denver, for defendants-appellees.

Opinion by Judge DUBOFSKY.

This class action is brought on behalf of individuals who were excluded, by virtue of a new regulation adopted by defendant Colorado Department of Social Services (Department), from receiving State Home Care Allowance (HCA) benefits. One hundred seventy-two individuals were certified by the trial court as constituting a class that was adversely affected by the implementation of this new regulation. Plaintiffs appeal the trial court's summary judgment entered in favor of defendants. We reverse.

The Colorado Department of Social Services administers public assistance programs for the benefit of Colorado residents under a grant of statutory authority. See §§ 26-2-104 and 26-2-108, C.R.S. (1989 Repl.Vol. 11B). One such program, the State Home Care Allowance Program, begun in about 1963, provides payments to individuals who are already recipients under the Old Age Pension (OAP) program, Aid to the Blind (AB) program, and Aid to the Needy Disabled (AND) program. Section 26-2-114, § 26-2-120, and § 26-2-119, C.R.S. (1989 Repl.Vol. 11B). It consists of supplementary payments made to recipients for personal care which they are no longer able to provide for themselves. Section 26-2-114, C.R.S. (1989 Repl.Vol. 11B). Payments are made to assist recipients in the administration of medication, exercise, personal hygiene, and activities of daily living including preparation of meals. Section 26-2-114(2), C.R.S. (1989 Repl.Vol. 11B).

From 1963 until 1988, it appears that eligibility for HCA was determined by applying a physician's letter of recommendation to the standards under the Department regulations.

The affidavits submitted relative to the summary judgment motion reflect that the new 1988 standards significantly limited the right of individuals to obtain HCA benefits. These new regulations require a 16-point threshold score by a potential recipient on a functional impairment test before such individual is eligible for HCA. The HCA payment is based on a final "need for care" assessment by the State Department.

I.

Plaintiffs argue that the new regulations adopted by the Department conflict with the relevant enabling statutes and, therefore, exceed the authority granted to the Department under those statutes. Plaintiffs primarily rely on the wording of § 26-2-114(2)(a), C.R.S. (1989 Repl.Vol 11B) to support this contention. Plaintiffs also assert that § 26-2-114(2)(a) mandates that any person receiving OAP, AB, or AND benefits who is in need of home care services is eligible and therefore must be provided HCA funds. We agree with plaintiffs that the regulations cannot stand, but do not find the statute as encompassing as plaintiffs urge.

Section 26-2-114(2)(a) provides:

"The state board, with the consent of the general assembly, may provide, from funds--available pursuant to article XXIV of the state constitution, for special needs in the form of adult foster care or home care for persons eligible to receive old age pensions. For purposes of this paragraph (a), adult foster care means the care and services defined in section 26-1-111(2)(j), and home care means care provided to an eligible recipient in his own home pursuant to rules of the state department when the recipient requires personal care that he is no longer able to provide for himself. Need for home care shall be certified by the recipient's attending physician. Home care provided pursuant to state department rules includes, but is not limited to, supervision of self-administered medications, exercise, assistance in personal hygiene and activities of daily living, and preparation of meals. In making the determination of the need for home care to be provided pursuant to this paragraph (a), the county department shall first determine if personal care can be provided as authorized in section 26-4.5-104.5 or 26-4.5-109.5."

The Department asserts that the definition of "home care" in this statute does not legislatively determine who will be eligible to receive Home Care Allowance benefits. Instead, the Department relies on the language of the statute granting it the right to provide home care "pursuant to the rules of the state department." The Department further argues that, by virtue of § 26-2-114(1), C.R.S. (1989 Repl.Vol. 11B), the State Board of Social Services may opt not to allocate any HCA funds for OAP benefits. Thus, since the entitlement to HCA is not automatically granted, it argues that rules and regulations may be promulgated to administer the program based on the eligibility needs assessment as determined by the State Board of Social Services. We reject this analysis.

Section 26-2-114(2)(a) operates under the OAP program, but its HCA provision appears to be the springboard for the entire HCA program, including AND and AB. Irrespective of whether eligibility requirements for HCA arise in regard to an OAP, AB, or AND recipient, the Department has treated the eligibility requirements for HCA similarly. Furthermore, applying the § 26-2-114(2)(a) statutory definition to AND and AB cases gives a consistent effect to the legislative purpose in providing for HCA payments. See Whisler v. Kuckler, 36 Colo.App. 200, 538 P.2d 477 (1975), rev'd on other grounds, 191 Colo. 260, 552 P.2d 18 (1976). We also note that in both its pre- and post- 1988 regulations, the Department has incorporated in its eligibility criteria most of the categories stated in § 26-2-114(2)(a), i.e., assistance in personal hygiene and activities of daily living, preparation of meals, etc.

Administrative agencies are legally bound to comply strictly with their enabling statutes. Sherrerd v. Johnson, 32 Colo.App. 367, 511 P.2d 923 (1973). The authority to regulate does not include the authority to legislate. Big Top, Inc. v. Schooley, 149 Colo. 116, 368 P.2d 201 (1962). Therefore, unless expressly or impliedly authorized by statute, administrative rules and regulations are without force and effect if they add to, change, modify, or conflict with an existing statute. Flavell v. Department of Welfare, 144 Colo. 203, 355 P.2d 941 (1960); Denver v. Gibson, 37 Colo.App. 130, 546 P.2d 974 (1975).

When a court construes a statute, it must: (1) consider the statute as a whole so as to ascertain the legislative intent, R & F Enterprises, Inc. v. Board of County Commissioners, 199 Colo. 137, 606 P.2d 64 (1980); (2) construe the whole of the act to give a consistent, harmonious, and sensible effect to all of its parts, Travelers Indemnity Co. v. Barnes, 191 Colo. 278, 552 P.2d 300 (1976); and (3) consider the ends that the statute was designed to accomplish and the consequences that would follow from alternative constructions. Mooney v. Kuiper, 194 Colo. 477, 573 P.2d 538 (1978). A court is not permitted to add an important limitation or qualification to a statute. Estate of Bourquin, 84 Colo. 275, 269 P. 903 (1928).

Applying these general principles here, we conclude that the Department's regulatory scheme in determining eligibility for HCA is not in conformity with the statute. See Rodgers v. Atencio, 43 Colo.App....