407-007-0080 Contesting a Final Fitness Determination (1) An SI may contest a final fitness determination of denied or approved with restrictions pursuant to OAR 407-007-0070 . (2) An SI who is already employed by the Department 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 appeal process described in this rule . (3) This 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, then the SI may not work, volunteer, be employed, or otherwise perform in positions covered by these rules . (b) If an SI has a n approval with restrictions , then the SI may only work under the terms of the restriction listed on the notice of final fitness determination during on the appeal . ( 5 ) A positive change of the final fitness determination at any time during the appeal process 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) A n approval with restrictions changing to an approval . ( 6 ) The SI may represent himself or herself or have legal representation during the appeal process. In this rule, the term “SI” includes the SI’s legal representative if the SI has provided the Department with such information . (a) If the SI is a member of a bargaining unit, the SI may represented by the certified or recognized exclusive representative of the bargaining unit. (b) For all other SIs, the SI’s legal representative may be an Oregon licensed attorney. (7) A hearing representative may represent BCU in contested case hearings. Alternatively, BCU may be represented by the Office of the Attorney General. (8 ) 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 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 request for a contested case hearing is not timely, the Department 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) The Department 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 Department receives the SI’s request for a contested case hearing, t he Department may conduct an administrative review before referring the SI’s request for a contested case hearing 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 (“ C orrespondence”). The Correspondence must include a due date for the SI. ( d ) 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 . ( e ) 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. (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 ( 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 must issue an amended notice to the SI and Human Resources . (B) If the hearing representative makes a positive change from denial to approval with restrictions, BCU must issue an amended notice to the SI and Human Resources . If the SI does not continue with a contested case hearing, BCU must issue a final order. (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. (10) The SI may not challenge a finding of 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. ( 11 ) The Department may conduct additional criminal records checks during the appeal process to update or verify the SI’s criminal records. If needed, the Department must amend the notice of fitness determination during the appeal process while still maintaining the original hearing rights and deadlines as far as allowed under the Model Rules of Procedure for OAH . ( 12 ) An administrative law judge from OAH conducts the contested case hearing. (a) The administrative law judge must make a new fitness determination based on the evidence in the contested case hearing record. (b) The only remedy that may be awarded is a new fitness determination of approved; denied; or if allowed pursuant to OAR 407-007-070(1)(b), approval with restrictions . ( c ) Under no circumstances is the Department required to place an SI in any position, or 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, the notice of fitness determination becomes the final order by default as if the SI never requested a hearing: (A) Failure to request a hearing in the time allotted in this rule. No other document may be issued after the notice of fitness determination. (B) Withdrawal of the request for hearing at any time during the appeal process. ( b ) The Department issues a n 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 a 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 ( 9 )( f ) of this rule must 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 to reinstate hearing rights if received in writing by the Department within 14 calendar days from the date of the dismissal order . ( D ) The Department must dismiss a hearing request when the SI fails to appear at the time and place specified for the contested case hearing. ( i ) The dismissal order is effective on the date scheduled for the hearing. (ii) The Department must review a good cause request 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 designee must 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. (15) All final orders are subject to judicial review under ORS 183.482 in the Court of Appeals. Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050 Statutes/Other Implemented: ORS 181A.195, ORS 443.008, 181A.200, 183.341 & 409.010 History: DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021 DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021 DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020 DHSD 32-2018, amend filed 11/28/2018, effective 12/01/2018 DHSD 12-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018 DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16 DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16 DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10 DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08 DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08