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Dempsey v. Senior Servs. Div. - 92 Or. App. 163, 758 P.2d 367 (1988)

Rule:

Rules of the Senior Services Division (SSD) (Or. Admin. R. 410-05-080 to 410-05-100), which implement Or. Rev. Stat. § 410.040 et seq., establish a scheme whereby different residential facilities are provided for persons with different kinds of "primary service needs." Generally, facilities for persons suffering from mental retardation and certain other problems come within the jurisdiction of the Mental Health Division (MHD), and facilities which serve the infirm elderly are under SSD's jurisdiction. A mentally retarded person can qualify for an "exception" and obtain placement in an SSD facility only by establishing that no appropriate MHD facility is available and that the SSD facility is "capable of serving his needs."

Facts:

Petitioner, a mentally retarded young adult, requested the Senior Services Division (SSD) to place at SSD’s Mt. Scott Residential Care Facility (Mt. Scott). SSD denied the petitioner’s request, basing its decision on OAR 410-05-080 to 410-05-100, administrative rules that establish a scheme whereby different residential facilities were provided for persons with different kinds of "primary service needs." Generally, facilities for persons suffering from mental retardation and certain other problems come within the jurisdiction of the Mental Health Division (MHD) and facilities which serve the infirm elderly were under SSD's jurisdiction. Furthermore, according to the rule, a mentally retarded person can qualify for an "exception" and obtain placement in an SSD facility only by establishing that no appropriate MHD facility was available and that the SSD facility was capable of serving that person’s needs. On appeal, petitioner argued that the SSD’s rules were inconsistent with the applicable statutes in effect at the time of its order. As asserted by the petitioner, SSD was created by Oregon Laws 1981, chapter 784, and was charged with responsibilities for the handicapped as well as the elderly.

Issue:

Were the SSD’s rules inconsistent with the relevant Oregon statutes in effect at the time of its order?

Answer:

No.

Conclusion:

The Court held that there was no inconsistency between the relevant Oregon statutes and the rules of the SSD; it was consistent with statutory objectives to make the placement of a person in a facility that did not normally serve his primary needs contingent upon the unavailability of one that did. As such, the Court affirmed the decision of SSD.

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