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 a n 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. Statutory/Other Authority: ORS 181.534, 181.537 & 413.042 Statutes/Other Implemented: ORS 181.534, 181.537 & 183.341 History: OHA 1-2020, amend filed 02/10/2020, effective 02/10/2020 OHA 1-2018, temporary amend filed 07/02/2018, effective 07/02/2018 through 12/27/2018 OHA 6-2012, f. 8-9-12, cert. ef. 8-10-12 OHA 2-2012(Temp), f. & cert. ef. 5-7-12 thru 11-2-12