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 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 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 Department or the QE be required to place an SI in any position, nor must the Department or 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 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. (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. 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 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 31-2018, amend filed 11/28/2018, effective 12/01/2018 DHSD 13-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018 DHSD 10-2017, f. & cert. ef. 9-1-17 DHSD 6-2017, f. 6-30-17, cert. ef. 7-1-17 DHSD 3-2017(Temp), f. & cert. ef. 3-15-17 thru 9-10-17 DHSD 9-2016, f. & cert. ef. 12-1-16 DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16 DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16 DHSD 2-2014, f. & cert. ef. 12-1-14 DHSD 4-2012, f. & cert. ef. 8-1-12 DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12 DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11 DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11 DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11 DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10 DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10 DHSD 7-2009, f. & cert. ef. 10-1-09 DHSD 2-2009, f. & cert. ef. 4-1-09 DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09 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 DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0330 OMAP 22-2005, f. & cert. ef. 3-29-05 OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04