Fredenburg v. Mental Health Division , 107 Or. App. 425 ( 1991 )

EDMONDS, J.

Appellants have petitioned for review of our opinion. 106 Or App 337, 807 P2d 812 (1991). We treat the petition as one for reconsideration, ORAP 9.15(1), allow it, modify our opinion and adhere to it.

Appellants assert that we erred in holding that Division’s consideration of their Social Security benefits did not violate 42 USC § 407(a).¹ They argue that we improperly relied on the present version of ORS 179.653, rather than on the version that was in effect on the date of the administrative orders relevant to this case.

Division’s orders were issued May 12, 1989, when ORS 179.653 provided:

“If any person at a state institution or the estate of the person refuses to pay for the cost of that person as ordered by the division under ORS 179.640, the amount unpaid and interest thereon shall be a hen in favor of the State of Oregon upon the property and rights to the property, whether real or personal, belonging to the person. The hen shah arise as each payment is due under the order and shall continue until the liability with interest is satisfied.”

On June 13,1989, that provision was amended to provide, in part:

“ (1) If any person or authorized representative refuses to pay for the cost of care as ordered by the division under ORS 179.640, the amount unpaid plus interest shah be a hen in favor of the State of Oregon. The hen shall arise as each payment is due under the order and shah continue until the liability with interest is satisfied. * * *

“(2) * * * [T]he hen shall only be valid against:

# if; * *

“(c) Assets subject to lien held by any person or entity having actual knowledge of the abihty-to-pay order or the hen.” Or Laws 1989, ch 348, § 4. (Emphasis supphed.)

Our opinion improperly relied on the amended version of ORS 179.653. Nonetheless, we conclude that Division did not violate 42 USC § 407(a) when it considered petitioners’ Social Security benefits in calculating their ability to pay for care. As we said:

“Because Social Security benefits are exempt from ‘execution, levy, attachment, garnishment or other legal process’ under 42 USC § 407(a), they cannot be the subject of a lien under ORS 179.653. It follows that the consideration of petitioners’ Social Security benefits in determining their liability for the cost of their care cannot have the effect of transferring or assigning the benefits to Division.” 106 Or App at 342.

The same reasoning applies under the applicable version of ORS 179.653.

Petition for reconsideration allowed; opinion modified and adhered to as modified.

1 42 USC § 407(a) provides:

“The right of any person to any future [Social Security] payment under this suhchapter shall not be transferrable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment or other legal process, or to the operation of any bankruptcy or insolvency law.”