IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 152

B.C., by and through his

parent Michelle Cox, Appellant

v.

North Dakota Department

of Human Services, Appellee

No. 20220100

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable Pamela A. Nesvig, Judge.

REVERSED.

Opinion of the Court by VandeWalle, Justice.

Mandy R. Dendy, Bismarck, ND, for appellant.

Jane G. Sportiello, Assistant Attorney General, Bismarck, ND, for appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

AUGUST 4, 2022 

STATE OF NORTH DAKOTA
1

B.C. v. NDDHS

No. 20220100

VandeWalle, Justice.

[¶1] B.C., by and through his parent Michelle Cox, appealed from a district 

court judgment affirming the Department of Human Services (“Department”) 

decision to deny autism voucher program funding for a gazebo. B.C. argues the 

Department’s rationale for rejecting the Administrative Law Judge’s (ALJ) 

recommendation is insufficient, its interpretation of its regulation is 

unreasonable, and its conclusions of law are not supported by its findings of 

fact. We conclude the agency unreasonably interpreted the regulation and its 

conclusions of law are not supported by its findings of facts. We reverse the 

judgment of the district court affirming the Department’s denial of the autism 

voucher program funding for the gazebo.

I

[¶2] B.C. is a child who participates in the autism spectrum voucher program. 

Cox, on behalf of B.C., requested, among other things, a garden gazebo and 

outdoor misting system through the program. In support of his request, B.C.’s 

therapist submitted a letter explaining that B.C. has issues with regulating 

body temperature and overheats easily due to his autism. The letter explained 

that B.C. has an extreme fear of flying insects. The therapist recommended the 

gazebo with mosquito netting and a misting hose to enable him to spend time 

outdoors without overheating. The Department denied the request for the 

gazebo reasoning that voucher funds may not be used for items or services that 

are a parental responsibility and that the Department viewed a gazebo the 

same as a fence. The Department approved the outdoor misting system.

[¶3] B.C. appealed the denial to the ALJ and a hearing was held. B.C.’s 

therapist testified that she has diagnosed B.C. with generalized anxiety and 

autism spectrum disorder. The therapist explained that the gazebo would allow 

B.C. to spend time outside and the netting would help address his phobia of 

flying insects.
2

[¶4] Cox testified that the gazebo requested was not a permanent gazebo that 

would be fixed to the property. She explained that she rents her current home

and she did not intend to leave the gazebo but would take it with her if she 

moved.

[¶5] The State Autism Coordinator testified that the Department denied the 

gazebo because it was an item viewed as a parental responsibility. The 

Coordinator explained that the Department views the gazebo the same as a 

fence, meaning that it’s the parents’ responsibility to have items within their 

home that add improvement. The Coordinator stated “a fence is an 

improvement. A fence is around the house, part of the house, and so, therefore, 

the gazebo would be seen as the same thing as being part of the house, not just 

for the child.” The Coordinator testified that the misting system was approved 

because it was unique to B.C. and that not everybody needs a misting system, 

therefore, B.C. actually needs the system to regulate his temperature. The 

Coordinator stated that the gazebo was a home improvement because it could 

be used by the whole family, was not tied specifically to an autism diagnosis, 

and was tied to the fact that it is an enhancement to the environment.

[¶6] The ALJ issued findings of fact and conclusions of law for the 

Department to consider. The ALJ determined it was improper for the 

Department to deny the gazebo on the grounds that it was equivalent to a fence 

without additional explanation because such a practice would cause the 

appearance of being disingenuous and create a motive for applicants to appeal. 

The ALJ also stated that the Department’s rule does not define parental 

responsibility and that it did not know what parental responsibility meant 

because it had not been adequately explained. The ALJ found that parental 

responsibilities are what the autism voucher program will not pay for because 

the items or services do not address a deficit created by the autism disorder. 

The ALJ determined the gazebo should be covered because the gazebo 

compensates for B.C.’s particular deficits created by his autism spectrum 

disorder by providing for his safety and treatment.

[¶7] The Department adopted in part and rejected in part the ALJ’s 

recommendation. The Department determined that its decision to deny the 
3

autism voucher request for the gazebo was proper. The Department’s final 

order provides that “[i]t is more likely than not that the gazebo would allow 

[B.C.] to safely be outside and would compensate for two of [B.C.]’s major 

deficits: temperature regulation and phobia of flying insects. Both of the 

deficits are created by his autism spectrum disorder.” The Department 

concluded that it denied the gazebo because the requested item was a parental 

responsibility. The Department likened a gazebo to a fence because both are 

home improvements and both are additions to property for convenience rather 

than necessity.

[¶8] B.C. appealed the Department’s decision to the district court. The district 

court affirmed the Department’s decision.

II

[¶9] When an administrative agency’s decision is appealed from the district 

court, this Court reviews the agency’s decision and the record before the agency 

in the same manner as the district court reviewed the decision. Bleick v. N.D. 

Dep’t of Human Servs., 2015 ND 63, ¶ 10, 861 N.W.2d 138. This Court will 

affirm an agency’s decision unless:

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. 
4

N.D.C.C. § 28-32-46. “In reviewing the agency’s findings of fact, we do not make 

independent findings or substitute our judgment for the agency’s judgment.” 

Sloan v. N.D. Workforce Safety & Ins., 2011 ND 194, ¶ 5, 804 N.W.2d 184. This 

Court instead decides “whether a reasoning mind reasonably could have 

determined the findings were proven by the weight of the evidence from the 

entire record.” Id. “Questions of law, including statutory interpretation, are 

fully reviewable on appeal.” Id.

III

[¶10] B.C. argues the Department’s rationale for rejecting the ALJ’s 

recommendation is insufficient, its interpretation of its regulation is 

unreasonable, and its conclusions of law are not supported by its findings of 

fact.

[¶11] This Court interprets regulations in the same manner as statutes:

Administrative regulations are derivatives of statutes and are 

construed under rules of statutory construction. Statutory 

interpretation is a question of law, fully reviewable on appeal. The 

objective in interpreting regulations is to determine the drafter’s 

intent by first looking at the language itself. Words are given their 

plain, ordinary, and commonly understood meaning, unless 

defined or unless a contrary intent plainly appears. Regulations 

are construed as a whole and are harmonized to give meaning to 

related provisions. If the relevant language is clear and 

unambiguous, the letter of it is not to be disregarded under the 

pretext of pursuing its spirit.

Blue Appaloosa, Inc. v. N.D. Indus. Comm’n, 2022 ND 119, ¶ 8, 975 N.W.2d 578 

(quoting Gadeco, LLC v. Indus. Comm’n, 2013 ND 72, ¶ 10, 830 N.W.2d 535). 

“An administrative agency’s reasonable interpretation of a regulation is 

entitled to deference, and an agency’s decision in complex or technical matters 

involving agency expertise is entitled to appreciable deference.” Ennis v. N.D. 

Dep’t of Human Servs., 2012 ND 185, ¶ 7, 820 N.W.2d 714 (citations and 

quotations omitted).
5

[¶12] The Department argues it reasonably interpreted the word “parental 

responsibilities” to include a gazebo and its interpretation of its administrative 

rule is entitled to deference.

[¶13] The Department is tasked with establishing a voucher program “to assist 

in funding equipment and general educational needs related to autism 

spectrum disorder” for individuals meeting certain requirements. N.D.C.C. § 

50-06-32.1(1). The Department must adopt rules addressing management and 

establish eligibility requirements and exclusions for the autism spectrum 

disorder voucher program. Id. § 50-06-32.1(2). The rules governing the autism 

spectrum disorder voucher program are governed by N.D. Admin. Code ch. 75-

03-38.

[¶14] At the time the Department issued its decision, section 75-03-38-04(7), 

N.D.A.C.,1 provided that voucher funds may not be used for:

a. Items or services that are parental responsibilities, including 

daily clothing, upkeep of residence, fences, internet, or utilities.

b. Duplicate items or services that address identical deficit goals, 

except for disposable items;

c. Items or services that are not age appropriate;

d. Items or services that are not connected to the child;

e. Items or services covered by insurance;

f. Items or services if the voucher is terminated;

g. Items or services that put the health and safety of the child at 

risk;

h. Replacement items, except for disposable products, such as 

sensory or tactile stimulation items;

i. Items that are restricted within property rental agreements or 

are the responsibility of landlords, tenants, or the homeowner;

j. Items that would cause a parent, custodian, or legal guardian to 

have additional or recurring costs; and

k. Service animals or emotional support animals and related items.

1 Section 75-03-38-04(7) of the North Dakota Administrative Code has since been amended in respects 

not relevant to our discussion. The amendments became effective January 1, 2022. 
6

[¶15] The Department denied B.C.’s request for the gazebo, stating:

75-03-38-04(7a) The voucher funds may not be used for (a) items 

or services that are parental responsibilities, including daily 

clothing, upkeep of residence, fences, internet, or utilities.

• The Department views a gazebo the same as a fence.

The term “parental responsibility” is not defined in the administrative rules. 

“The ordinary sense of the word ‘including’ is that it is not a word of limitation, 

but of enlargement.” Peterson v. McKenzie Cty. Pub. Sch. Dist. No. 1, 467 

N.W.2d 456, 459 (N.D. 1991). Thus, “parental responsibility” is not limited to 

daily clothing, upkeep of residence, fences, internet, and utilities. The ordinary 

meaning of “fence” is “a barrier intended to prevent escape or intrusion or to 

mark a boundary.” Merriam-Webster’s Collegiate Dictionary 461 (11th ed. 

2005).

[¶16] Here, the Department denied the gazebo because it was a parental 

responsibility. The Department likened a gazebo to a fence because both are 

home improvements and both are additions to property for convenience rather 

than necessity. However, this conclusion is not supported by its findings of fact. 

The Department’s final order states “[i]t is more likely than not that the gazebo 

would allow [B.C.] to safely be outside and would compensate for two of [B.C.]’s 

major deficits: temperature regulation and phobia of flying insects. Both of the 

deficits are created by his autism spectrum disorder.” There are no findings of 

fact which indicate that the gazebo requested by B.C. is a home improvement 

for convenience. Rather, the gazebo requested was recommended because of 

B.C.’s issue with regulating body temperature and his extreme fear of flying 

insects. At the hearing before the ALJ, the State Autism Coordinator testified 

that “a fence is an improvement. A fence is around the house, part of the house, 

and so, therefore, the gazebo would be seen as the same thing as being part of 

the house, not just for the child.” The Coordinator stated that it was a home 

improvement because it could be used by the whole family, was not tied 

specifically to an autism diagnosis, and was tied to the fact that it is an 

enhancement to the environment. The Department concedes at oral argument 

that the outdoor misting system, which was approved, is large enough to be 
7

hung on a structure for more than one person. To uphold the Department’s 

interpretation of parental responsibility would lead to inconsistent results.

[¶17] In this case, it would be unreasonable to interpret “parental 

responsibility” as broadly as suggested by the Department. The Department’s 

interpretation that “a gazebo” is like “a fence” because “both are home 

improvements” and thus excluded as a parental responsibility, was 

unreasonable. The administrative regulation is not complex or technical in 

nature, therefore we do not give the agency’s interpretation appreciable 

deference. It is appropriate and unremarkable for the Department to draw a 

parallel between the ordinary meaning of “gazebo” and “fence” to determine if 

a requested item is within the scope of the exclusion. The prototypical gazebo, 

like the prototypical fence, is a “home improvement” or an “addition[] to 

property.” But whether a generic or typical gazebo is similar to a generic or 

typical fence is not the proper question because that fails to apply the 

administrative rule to the particular item referred to here as a “gazebo.” The 

actual item requested for B.C. was described on the autism voucher purchase 

request as “Apex Garden Harmony 10’x10’ Gazebo,” available at a big box home 

improvement store for $438.96. The attached printout of the listing on the 

store’s web site shows that the “gazebo” is a square canopy supported by a steel 

leg at each corner. As depicted, it is unmistakably a member of the class of 

temporary shade structures one often sees at high-school sporting events and 

outdoor exhibition booths. Without the word temporary or pop-up in front of it, 

the word gazebo as applied to this item is simply marketing. The Department 

must measure the specific item requested against the ordinary meaning of 

“parental responsibility” in its administrative rule. There is no evidence in this 

record that the gazebo is a fence when construed within the meaning of 

“parental responsibility.” We conclude the agency unreasonably interpreted the 

regulation and its conclusions of law are not supported by its findings of facts.

IV

[¶18] The judgment of the district court affirming the Department’s denial of 

the autism voucher program funding for the gazebo is reversed.
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[¶19] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte