and Submitted February 23, 2016
of Human Services S13204627.
Dorton argued the cause for petitioner. With her on the
briefs was Legal Aid Services of Oregon.
Peenesh H. Shah, Assistant Attorney General, argued the cause
for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Anna M. Joyce, Solicitor
Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog,
seeks judicial review of an order of the Background Check
Unit (BCU) of the Department of Human Services (DHS)
dismissing her request for hearing from a determination by
the BCU that she is not ft for a position as a caregiver with
a prospective employer, based on the results of a criminal
background check. The BCU dismissed petitioner's request
for hearing because it determined that petitioner had failed
to participate in an informal administrative review by not
answering nine of 29 questions submitted to her by BCU.
The BCU's administrative rules provide that, when an
individual subject to a criminal background check requests a
hearing from an adverse determination, the BCU may conduct an
informal administrative review before referring the matter
for hearing. The rules provide that a failure to participate
in the administrative review "shall result in
termination of hearing rights." The rules state that
participation in the administrative review "may include
but is not limited to providing additional information or
additional documents requested by the BCU within a specific
amount of time." The Court of Appeals' review of
administrative rules and dictionary definitions led the court
to conclude that a "failure" to participate in an
informal administrative review is an absence of
participation, or non participation, not merely incomplete
participation. Petitioner participated in the administrative
review process in a meaningful way. In its informal [286
Or.App. 28] administrative review, BCU had authority to
adhere to its adverse determination so that the matter could
proceed to hearing, but it could not dismiss petitioner's
request for hearing based on a failure to participate.
Or.App. 29] SERCOMBE, P. J.
Kemisha Anderson seeks judicial review of an order of the
Background Check Unit (BCU) of the Department of Human
Services (DHS) dismissing her request for hearing from a
notice determining that she is not fit for a position as a
caregiver with a prospective employer, based on the results
of a criminal background check. The order is subject to
review under ORS 183.482. We conclude that BCU erred in
dismissing petitioner's request for hearing, and we
relevant facts are procedural and are not in dispute.
Petitioner applied for a position as a caregiver with an
adult care home program that was required to perform a
criminal background check. Petitioner did not disclose to her
prospective employer recent convictions for DUII and failure
to perform the duties of a driver, and they were revealed
through the background check. Petitioner received a notice
from BCU stating that she had been denied a determination of
fitness for the position, based on the convictions.
former ORS 181.534(14)(a),  DHS was required to
"establish by rule a contested case process by which a
[subject individual] may appeal the determination that the
individual is fit or not fit to hold a position." DHS
has adopted OAR 407-007-0330(6), which provides that
"[a subject individual] may contest an adverse fitness
determination by requesting a contested case hearing. The
contested hearing is conducted in accordance with ORS 183.411
to 183.497 [relating to the conduct of contested case
hearings] and the Attorney General's Uniform and Model
Rules of Procedure for the Office of ...