Or. Admin. Code § 407-007-0330 - Contesting a Fitness Determination
(1) An SI may contest an adverse fitness
determination pursuant to OAR
407-007-0320. In this rule, an
adverse fitness determination includes:
(a) A
final fitness determination of denied or approved with restrictions pursuant to
OAR 407-007-0320; or
(b) A mandatory exclusion pursuant to federal
law and OAR 407-007-0279 if hearing rights
are allowed by federal law.
(2) The appeal process is conducted in
accordance with OAR 125-007-0300, ORS
183.411 to
183.497, and the Attorney
General's Uniform and Model Rules of Procedure for the Office of Administrative
Hearings (OAH), OAR 137-003-0501 to
137-003-0700.
(3) During the appeal process, the final
fitness determination remains in effect.
(a)
If an SI is denied or mandatorily excluded, the SI may not hold the position,
provide services or be employed, licensed, certified, or registered, or
otherwise perform in positions covered by these rules.
(b) If an SI has an approval with
restrictions, the SI may only work under the terms of the restriction listed on
the notice of final fitness determination.
(4) A positive change does not guarantee
employment or placement. A positive change is either:
(a) A denial changing to an approval or an
approval with restrictions; or
(b)
An approval with restrictions changing to an approval.
(5) An SI may represent himself or herself or
have legal representation during the appeal process. For the purpose of this
rule, the term "SI" includes the SI's legal representative if the SI has
provided the Department with such information.
(a) An SI who is appealing an adverse outcome
regarding the position of homecare worker as defined in ORS
410.600 or personal support
worker as defined in ORS
410.600 may be represented by a
labor union representative pursuant to ORS
183.459.
(b) If the SI is a member of a bargaining
unit, the SI may be represented by the certified or recognized exclusive
representative of the bargaining unit.
(c) For all other SIs, the SI's legal
representative may be an Oregon licensed attorney.
(6) A hearing representative may represent
BCU in contested case hearings. Alternatively, BCU may be represented by the
Office of the Attorney General.
(7)
Any contested case hearing request must be received by the Department by 11:59
p.m. on the due date, or if mailed, postmarked by 11:59 p.m. on the due date.
(a) To request a contested case hearing, the
SI must complete, sign and date the Hearing Request form.
(b) The completed, signed, and dated form
must be received by the Departmenton or before the due date. The due date is 30
calendar days after the effective date of action on the notice of fitness
determination.
(c) If a contested
case hearing request is not timely, BCU must determine, based on a written
statement from the SI and available information, if there is good cause to
proceed with the appeal process.
(d) BCU may refer an untimely request to OAH
for a contested case hearing solely on the issue of the timeliness of the
contested case hearing request.
(8) After BCU receives the SI's request for a
contested case hearing, BCU may conduct an administrative review before
referring the appeal to OAH.
(a) The
administrative review is not open to the public.
(b) The SI must participate in the
administrative review.
(c) In
addition to any other method of communication, the Department must provide the
SI with written correspondence that initiates the administrative review process
("Correspondence").
(d) The
Correspondence must include a due date for the SI. Any response to the
Department's Correspondence must be received by the Department by 11:59 p.m. on
the due date, or if mailed, postmarked by 11:59 p.m. on the due date.
(e) Participation by the SI may include but
is not limited to providing additional information or additional documents
requested on or before the due date specified in the Department's
Correspondence.
(f) For the
purposes of this rule, failure to participate in the administrative review
means that the SI does not respond in any way to the Department's
Correspondence by the specified due date. Failure to participate in the
administrative review process results in a dismissal order pursuant to
paragraph (11)(b)(C) of this rule.
(g) The outcome of an administrative review
is a new fitness determination.
(A) If the
hearing representative makes a positive change to approved, BCU issues a final
order and an amended notice to the SI and the QE.
(B) If the hearing representative makes a
positive change from denial to approval with restrictions, BCU issues an
amended notice to the SI and the QE. If the SI does not continue with to a
contested case hearing, BCU issues a final order as an amended notice of
fitness determination to the SI and the QE.
(C) If the hearing representative maintains
the outcome of the final fitness determination, or changes an approval with
restrictions to a denial, BCU refers the contested case hearing request to
OAH.
(9) The
SI may not challenge a finding of substantiated abuse or criminal conviction
that was a basis for the adverse outcome under this rule. The SI has the right
to contest the weight the Department has given to:
(a) The evidence;
(b) The factors used in the weighing test;
or
(c) Any other information used
in making the fitness determination.
(10) BCU may conduct additional research,
including abuse checks or criminal records checks (if allowed by law) during
the appeal process to update or verify the SI's potentially disqualifying
convictions or conditions and factors to consider in the weighing test. If
needed, BCU amends the notice of fitness determination while still maintaining
the original hearing rights and deadlines.
(11) An administrative law judge from OAH
conducts the contested case hearing.
(a) The
contested case hearing is not open to the public.
(b) The Department must provide the
administrative law judge and the SI a complete copy of available information
used during the criminal records checks and fitness determinations. The SI is
entitled to reasonable notice of all hearing documents through proper
service.
(c) An SI may not have
access to confidential information contained in records collected or developed
during the criminal records check process without a protective order limiting
further disclosure of the information.
(A) The
Department must request a protective order by motion to an administrative law
judge as provided for in OAR
137-003-0568(5)
or to a court of law.
(B) In
conjunction with a protective order issued pursuant to this section,
individually identifying information relating to clients, witnesses, and other
persons identified in abuse investigation reports or other records collected or
developed during the criminal records check process must be redacted prior to
disclosure, except for the information identifying the SI.
(d) The administrative law judge must make a
new final fitness determination based on evidence and the contested case
hearing record.
(e) The only remedy
an administrative law judge may grant is a final fitness determination that the
SI is approved, approved with restrictions, denied, or mandatorily excluded
pursuant to OAR 407-007-0279(1).
(f) Under no circumstances must the
Departmentor the QE be required to place an SI in any
position, nor must the Departmentor the QE be required to accept services or
enter into a contractual agreement with an SI.
(12) The result of an appeal is a final
order.
(a) In the following situations, the
notice of final fitness determination becomes the final order by default as if
the SI never requested a hearing:
(A) The SI
failed to request a contested case hearing in the time allotted in this rule.
No other document will be issued after the notice of final fitness
determination.
(B) The SI withdraws
the request for contested case hearing at any time during the appeal
process.
(b) The
Department must issue an order dismissing the appeal (a "dismissal order") in
the following circumstances:
(A) The
Department must dismiss a contested case hearing request if the administrative
review results in a positive outcome. The only exception to the Department
issuing a dismissal order is when the SI proceeds to contested case hearing
because the administrative review changed fitness determination from denial to
approval with restrictions.
(B) The
SI may withdraw a hearing request verbally or in writing at any time before the
issuance of a final order. A dismissal order due to the withdrawal is effective
the date the withdrawal is received by the Department or OAH. The SI may cancel
the withdrawal in writing within 14 calendar days after the date of
withdrawal.
(C) The Department must
dismiss a hearing request when the SI fails to participate in the
administrative review. Failure to participate as defined in (8)(f) of this rule
shall result in termination of hearing rights through a dismissal order.
(i) The dismissal order is effective on the
date the Department mails the dismissal order.
(ii) The Department must review a good cause
request from the SI to reinstate hearing rights if received in writing by the
Department within 14 calendar days from the date of the dismissal
order.
(c)
After a contested case hearing, the administrative law judge must issue a
proposed and final order.
(A) If no written
exceptions are received by the Department within 14 calendar days after the
service of the proposed and final order, the proposed and final order becomes
the final order.
(B) If timely
written exceptions to the proposed and final order are received by the
Department, the Department's Director or designeemust consider the
exceptions and serve a final order, or request a written response or a revised
proposed and final order from the administrative law judge.
(13) Final orders,
including dismissal and default orders, are subject to reconsideration or
rehearing petitions within 60 calendar days after the order is served, pursuant
to OAR 137-003-0675.
(14) All contested case hearing decisions are
subject to judicial review under ORS
183.482 in the Court of
Appeals.
(15) BCU may provide the
QED with the results of the appeal.
Notes
Statutory/Other Authority: ORS 181A.200, 183.459, 409.027, 409.050, 443.008 & 181A.215
Statutes/Other Implemented: ORS 181A.200, 183.459, 409.027, ORS 181A.195, 409.010, 443.004 & 443.008
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