Or. Admin. Code § 943-007-0501 - Contesting a Final 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) An SI who is already employed
by the Authority at the time of the final fitness determination may
appeal through applicable personnel rules, policies, and collective
bargaining provisions. The SI's decision to do so is an election of
remedies as to the rights of the SI with respect to the fitness
determination and constitutes a waiver of the contested case process
described in this rule.
(3) 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.
(4) During
the appeal process, the final fitness determination remains in
effect.
(a) If an SI is denied or
mandatorily excluded, the SI may not work, volunteer, be employed,
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.
(5) 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.
(6) An SI may represent him or
herself or have legal representation during the appeal process. For
the purpose of this rule, the term "SI" shall be considered to
include the SI's legal representative if the SI has provided the
Authority with such information.
(a) An SI appealing an adverse
outcome regarding the position of 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.
(7) A hearing
representative may represent the Authority in contested case
hearings. Alternatively, the Authority may be represented by the
Office of the Attorney General.
(8) Any contested case hearing
request must be received by the Authority 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
and signed form must be received by the Department on 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 for hearing is not timely, the Authority shall determine,
based on a written statement from the SI and available information,
if there is good cause to proceed with the appeal process.
(d) The Authority may refer an
untimely request to OAH for a contested case hearing solely on the
issue of timeliness of the contested case hearing request.
(9) After the Authority
receives the SI's request for a contested case hearing, the Authority
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 Authority shall provide the SI with written
correspondence that initiates the administrative review process
("Correspondence").
(d)
The Correspondence shall include a due date for the SI. Any response
to the Authority's Correspondence must be received by the Authority
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 Authority'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 Authority's Correspondence by the
specified due date. Failure to participate in the administrative
review process shall result in a dismissal order pursuant to
paragraph (13)(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 shall issue 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,
the Authority shall issue an amended notice to the SI and the QE. If
the SI does not continue with to a contested case hearing, the
Authority shall issue 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, the Authority will refer
the contested case hearing request to OAH.
(10) 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 Authority 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.
(11) The Authority 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,
the Authority may amend the notice of fitness determination during
the appeal process while still maintaining the original hearing
rights and deadlines.
(12) An administrative law judge
from OAH conducts the contested case hearing.
(a) The contested case hearing is
not open to the public.
(b) The Authority shall 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) SIs 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 Authority must request a
protective order by motion to an administrative law judge as provided
for in OAR 137-003-0570(8) or by 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
shall be redacted prior to disclosure, except for the information
identifying the SI.
(d) The administrative law judge
shall make a new final fitness determination based on the evidence
and the contested case hearing record.
(e) The only remedy that an
administrative law judge may grant is a fitness determination that
the SI is approved, approved with restrictions (if allowed by rule),
or denied.
(f) Under no
circumstances shall the Authority or Qualified Entity (QE) be
required to place an SI in any position, nor shall the Authority or
QE be required to accept services or enter into a contractual
agreement with an SI.
(13) The result of an appeal is a
final order.
(a) In the following
situations, notice of fitness determination becomes the final order
as if the SI never requested a hearing in the following situations:
(A) The SI failed to request a
hearing in the time allotted in this rule. No other document shall be
issued after the notice of fitness determination.
(B) The SI withdraws the request
for hearing at any time during the appeal process.
(b) The Authority shall
issue an order dismissing the appeal (a "dismissal order") in the
following situations:
(A) The
Authority shall dismiss a contested case hearing request if the
administrative review results in a positive outcome. The only
exception to the Authority 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
Authority or OAH. The SI may cancel the withdrawal in writing within
14 calendar days after the date of withdrawal.
(C) The Authority shall 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 Authority mails the dismissal
order.
(ii) The Authority
shall review a good cause request to reinstate hearing rights if
received in writing by the Authority within 14 calendar
days.
(c) After a contested case hearing,
the administrative law judge shall issue a proposed and final order.
(A) If no written exceptions are
received by the Authority within 14 calendar days after the service
of the proposed and final order, the proposed and final order shall
become the final order.
(B) If timely written exceptions to
the proposed and final order are received by the Authority, the
Authority's 's Director or designee shall 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.
(14) Final
orders, including dismissal and default orders, are subject to
reconsideration or rehearing petitions within 60 calendar days after
the final order is served, pursuant to OAR 137-003-0675.
Notes
Statutory/Other Authority: ORS 181.534, 181.537 & 413.042
Statutes/Other Implemented: ORS 181.534, 181.537 & 183.341
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