FILED: December 6, 2000

JONI NICHOLS,

Petitioner,

v.

OFFICE OF MEDICAL ASSISTANCE PROGRAMS,

Respondent.

Judicial review from Office of Medical Assistance Programs.

Argued and submitted April 21, 2000.

Karen Berkowitz argued the cause for petitioner. With her on the briefs were Julia Olsen and Legal Aid Services of Oregon.

Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Deits, Chief Judge, and Armstrong, Judge.

EDMONDS, P. J.

Reversed and remanded.

EDMONDS, P. J.

Petitioner is an incomplete quadriplegic as the result of a progressive spinal cord disease. She receives medical benefits from the Oregon Health Plan (OHP) through Regence HMO (Regence), a health maintenance organization that has a contract with the OHP. Because of her condition, petitioner spends long periods of time in bed, which among other things makes her susceptible to decubitus ulcers, commonly called "bed sores." Petitioner seeks review of final orders of the Office of Medical Assistance Programs (OMAP) in two cases in which OMAP determined that Regence's decisions to change the bed and mattresses that it provided were not "actions" that entitle her to prior notice and a hearing under the applicable state and federal rules. (1) We reverse and remand.

We state the facts as OMAP found them, supplemented by other evidence in the record on which there does not appear to be any dispute. In 1996, petitioner developed a decubitus ulcer on her coccyx that grew progressively worse despite treatment. In March 1997, her physicians recommended a Synergy Dynamic bed, which is an air flotation bed with 16 adjustable sections that can be programmed to adjust pressure and to rotate the patient at regular intervals. Under OAR 410-122-0400, the Synergy Dynamic is a category E0193 bed, which is a group 2 pressure reducing support surface. (2) Petitioner's ulcer, along with her general comfort and ability to sleep, improved with her use of that bed. On June 18, 1997, Regence replaced the Synergy Dynamic bed with a TriCell air-powered pressure reducing mattress. As the name implies, the TriCell mattress has three manually adjustable air-filled cells and is a category E0277 mattress. Although it lacks the 16 adjustable sections and programmable feature of the Synergy Dynamic bed, it also is classified as a category 2 surface. According to petitioner, the TriCell mattress did not provide her with the same level of comfort and ability to sleep as did the Synergy Dynamic. Nevertheless, her ulcer continued to improve while she used it. On October 28, 1997, Regence notified petitioner that it would replace the TriCell mattress with a GeoMatt mattress at the end of November. The GeoMatt is a category E0199 mattress and a group 1 surface. Petitioner was using a GeoMatt mattress when she developed the ulcer, and she believes that the GeoMatt mattress helped to cause it.

Petitioner sought hearings under the applicable administrative rules in which she sought to challenge each of these changes in surfaces. (3) However, in the orders that are presently on judicial review OMAP held that each change was not an "action" on which petitioner had a right to a hearing. The orders therefore dismissed the requests for hearing. The issue in this case is whether OMAP correctly concluded that petitioner did not have a right to a hearing and correctly refused to reach the merits of her arguments about the changes in surfaces.

Deciding the issue requires examining the relevant state and federal rules. The Oregon administrative rules that establish petitioner's right to a hearing are designed to comply with federal regulations that describe what is necessary for the state to qualify for participation in the Medicaid program. In the orders in these cases, OMAP stated that it construes its own rules as providing for a hearing whenever federal Medicaid law requires one. We will do the same, and therefore we focus primarily on petitioner's right to a hearing under federal law. See Don't Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994) (a court cannot overrule an agency's interpretation of its own rule if the interpretation is plausible and not inconsistent with wording of the rule or another principle of law); see also Salem College & Academy, Inc. v. Employment Division, 298 Or 471, 476-78, 494-95, 695 P2d 25 (1985) (a state law designed to meet federal standards will ordinarily be interpreted to comply with requirements of the federal program); Rubio v. Employment Div., 66 Or App 525, 674 P2d 1201 (1984) (construing state unemployment compensation statute to be consistent with federal requirements).

OAR 410-141-0000(1) defines an "Administrative Hearing" as a "hearing related to a denial, reduction, or termination of benefits[.]" OAR 410-141-0264 provides that the hearings will be governed by OAR 461-25-0300 et seq., which regulate hearings that the Adult and Family Services Division conducts. These provisions are consistent with the federal rules. 42 CFR