Martin v. STUTSMAN COUNTY SOCIAL SERVICES

• Decision Date: 22 June 2005
• Docket Number: No. 20050019.,20050019.
• Citation: 698 N.W.2d 278,2005 ND 117
• Court: North Dakota Supreme Court
• Parties: Judith MARTIN, Petitioner and Appellant v. STUTSMAN COUNTY SOCIAL SERVICES and the Department of Human Services for the State of North Dakota, Respondents and Appellees.

698 N.W.2d 278

2005 ND 117

Judith MARTIN, Petitioner and Appellant v. STUTSMAN COUNTY SOCIAL SERVICES and the Department of Human Services for the State of North Dakota, Respondents and Appellees.

No. 20050019.

Supreme Court of North Dakota.

June 22, 2005.

Anita A. Flatt (argued), Legal Services of North Dakota, Fargo, N.D., and Richard R. LeMay (appeared), Legal Services of North Dakota, Minot, N.D., for petitioner and appellant.

Jean R. Mullen, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondents and appellees.

SANDSTROM, Justice.

[¶ 1] Judith Martin appeals a district court judgment affirming an administrative order that she is not eligible to receive home- and community-based services, because she lives in an environment that is a threat to her health and safety. We affirm.

I

[¶ 2] Martin is disabled and receives medicaid benefits through Stutsman County Social Services ("Social Services"). After Martin broke her leg on June 10, 2003, she was admitted to a nursing center from which she was later discharged on October 1, 2003. Prior to her discharge, she applied for home-based services under the Medicaid Waiver for the Aged and Disabled Program. The home-based services program is designed to help aged and disabled persons who are at risk of being institutionalized, and it would pay for services Martin would receive at home to help her cope with her disabilities. She requested funding for personal care services to assist her during the day from the time she wakens until she goes to bed at night. She requires the use of a lift and personal assistance to transfer in and out of bed and to and from her wheelchair. Home-based services would pay a maximum of $2,400 for a 30-day month.

[¶ 3] Social Services ruled that Martin was not eligible for home-based services, because it estimated the cost would be more than $2,400, and it ruled the services would be provided under conditions that were a threat to her health and safety. Martin appealed, and an administrative law judge ("ALJ") recommended to the executive director of the Department of Human Services ("Department") that home-based services should not be provided to Martin. The Department adopted the ALJ's proposed findings of fact, conclusions of law, and order. The Department found that Martin's care would cost less than the $2,400 allowed by home-based services, but ordered that Martin be denied services because she and her husband smoke in a home in which an oxygen tank is being used. The Department found that Social Services overestimated the cost of Martin's care, but held that Social Services correctly found there were "safety concerns due to Judith Martin and Harold Martin, as well as Ms. Jung, the caregiver, smoking in the apartment as Mr. Martin used oxygen in the home." The Department affirmed Social Services' denial of home-based services, concluding Martin was not eligible for the services because she and her husband smoked in her apartment while her husband used an oxygen tank for breathing. On petition for reconsideration, the Department acknowledged that Martin, but not her husband, smoked in her apartment, and the Department reaffirmed the rest of its order.

[¶ 4] Martin appealed the Department's ruling to the district court. The district court affirmed the denial of benefits, holding that smoking in a house where someone is using oxygen is dangerous. It held the act of smoking near an oxygen tank is a "contraindicated practice" as defined in the North Dakota Administrative Code, requiring the Department to deny services to Martin. Martin appeals the district court judgment.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 28-32-42. Martin's appeal to this Court is timely under N.D.C.C. § 28-32-49 and N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. Art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 6] Martin argues the Department erred in adopting the ALJ's recommendations finding that Martin's husband was a smoker and concluding that Martin's smoking creates a threat to her health and safety because her husband uses an oxygen tank to breathe. Martin argues there was no evidence presented as to the amount of oxygen that would be present in the apartment nor was evidence produced regarding the likelihood of a fire or an explosion occurring if she smoked in her bedroom while her husband used oxygen in a separate room. Martin claims, especially because she is not the person using the oxygen tank, the Department impermissibly concluded it is common knowledge that smoking around oxygen is dangerous.

[¶ 7] Social Services argues that smoking near an oxygen tank is dangerous and that it is explicitly considered dangerous under the North Dakota Administrative Code. It argues Martin was properly denied services, because the Administrative Code's examples of "contraindicated" client behaviors that can lead to termination of services include smoking while oxygen is being used nearby.

[¶ 8] "`When a decision of an administrative agency is appealed from the district court to this Court, we review the decision of the agency.'" Steen v. N.D. Dep't of Human Services, 1997 ND 52, ¶ 7, 562 N.W.2d 83 (quoting Walton v. N.D. Dep't of Human Services, 552 N.W.2d 336, 338 (N.D.1996)). Our review of administrative agency decisions is limited. Huff v. N.D. State Bd. of Medical Examiners-Investigative Panel B, 2004 ND 225, ¶ 8, 690 N.W.2d 221.

Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further appeal, must affirm an administrative agency decision unless one of the following is present:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

Id. In reviewing an administrative agency decision, we do not substitute our judgment for that of the agency or make independent findings. Id. We decide only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence in the entire record, and we defer to the hearing officer's opportunity to judge the credibility of witnesses. Id. An agency's decisions on questions of law are fully reviewable. Linser v. Office of Attorney General, 2003 ND 195, ¶ 6, 672 N.W.2d 643.

A

[¶ 9] Martin argues the ALJ erred in finding that her husband smokes. The ALJ's recommended findings and order provided:

Ms. Martin and her husband smoke in their home. At the time of the assessment, they also allowed Ms. Jung, Ms. Martin's care provider, to smoke in the home. Harold Martin uses oxygen in the home. It is common knowledge among reasonable and prudent persons, that lighting a match or lighter and smoking in an environment where oxygen is present is extremely dangerous as there is a risk of fire or explosion. Further, it is a contraindicated practice which is specifically spelled out in the Department's rules as an immediate threat to the health or safety of a client, and which can form the basis for denial or termination of Medicaid Waiver program services. N.D. Admin. Code § 75-03-23-11(5). The rule reads that "smoking while using oxygen" is a contraindicated practice. Id. Ms. Martin took the rather naïve approach that her behavior is not prohibited under the rule because she does not use oxygen, she only smokes in her own bedroom, and her husband leaves his oxygen out of her room; therefore, she is not smoking while using oxygen. Such an argument is simplistic and specious. It ignores the obvious, that it is dangerous and may be deadly to have open flames or smoke in an environment which is enriched with oxygen, and oxygen, being a gas, permeates the entire apartment. Clearly, the Department may deny Medicaid Waiver program services to Ms. Martin on the basis that her behavior and/or her husband's behavior in smoking in their home, in which he uses oxygen, is a threat to Ms. Martin's safety and is therefore, a contraindicated practice under the Department's rule.

(Emphasis added.)

[¶ 10] The Department adopted the ALJ's recommendations and denied Ms. Martin home-based services. It held "the evidence of record further shows that the behavior of Ms. Martin and her husband in smoking in the home, in which Mr. Martin uses oxygen, is a contraindicated practice which is an immediate threat to the health or safety of Ms. Martin, under N.D. Admin. Code § 75-03-23-11(5)." Martin requested a rehearing from the Department, arguing the ALJ erred in recommending a finding that Ms. Martin's husband smokes. In its "Order upon Petition for Reconsideration," the Department stated, "Even if Mr. Martin does not smoke, the evidence showed Mrs. Martin does smoke in the home while Mr. Martin uses oxygen. Therefore, the environment is not safe and presents an immediate threat to the health and safety of Mr. and Mrs. Martin."

[¶ 11] Martin's argument that the agency committed reversible error when it incorrectly found her husband smokes is not a factor in this case, because the Department found Martin's behavior, standing alone, was a "contraindicated practice" as defined in the North Dakota Administrative Code. We, therefore, must consider whether Martin's smoking creates a risk requiring the termination of...