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Hodges v. Adult and Family Services Division3/11/1992
COURT OF APPEALS OF OREGON
CA A68912
1992.OR.42047 ; 826 P.2d 1056; 112 Or. App. 130
Decided: March 11, 1992.
MARY HODGES, PETITIONER,
v.
ADULT AND FAMILY SERVICES DIVISION, RESPONDENT
Judicial Review from Adult and Family Services Division. No. 2-2101-AY9490-6.
Arthur P. Klosterman, Salem, argued the cause for petitioner. With him on the brief was Whitehead & Klosterman, Salem.
Diane S. Lefkow, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Richardson, Presiding Judge, and Deits and Durham, Judges.
Durham
Petitioner seeks review of an order of the Adult and Family Services Division (AFSD) denying her request for a hearing to contest its lien on settlement proceeds that she had received. We review for errors of law, ORS 183.482(8), and affirm.
Petitioner received public assistance from July, 1987, until October, 1989. She was injured in an automobile accident on July 27, 1988. AFSD paid her medical and other expenses. On October 19, 1989, she settled a personal injury claim against the other driver. AFSD asserted an $11,589.18 lien on the settlement proceeds. ORS 416.540. Petitioner proposed that AFSD reduce the lien, ORS 416.600, and it agreed. She paid the reduced amount, and AFSD canceled the lien. She then asked it to refund the amount that she had paid, but it refused.
Petitioner sought a hearing. She argued that AFSD should repay her in order to allow her to become selfemployed, to pay travel expenses for therapy and to purchase child care. The hearings officer ruled that petitioner had no
statutory right to a hearing to contest the refusal to repay and concluded that it had no jurisdiction to conduct a hearing.
Petitioner argues that she was entitled to a contested case hearing, because AFSD rules provide for one. ORS 183.310. She asserts that AFSD must provide a hearing, because it provides one when it reduces public assistance or food stamp grants, OAR 461-25-310(1)(c), when it fails to act on an application for public aid or denies, modifies or cancels it, former ORS 418.425, and when it affects a household's participation in a public assistance program. Former OAR 461-88-010. None of those applies here. Petitioner also argues that she is entitled to a contested case hearing because, under federal law, the lien affects her public assistance payments. 45 CFR ยง 205.10(5). She is wrong. AFSD asserted its lien after her public assistance payments had ceased. It did not modify the amount of her payments.
Petitioner also asserts that the refusal to provide a hearing denies her due process under Article I, section 10, and the Fourteenth Amendment. After AFSD asserted its lien, petitioner negotiated a settlement of it. She claims that she still had a right to be heard "regarding her argument seeking release of the entire lien * * *." We disagree. Any due process claim she might have had regarding the assertion of the lien was waived when she voluntarily settled with AFSD.
Affirmed.
Disposition
Affirmed.
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