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Anderson v. Department of Human Services

Court of Appeals of Oregon

June 7, 2017

Kemisha ANDERSON, Petitioner,
v.
DEPARTMENT OF HUMAN SERVICES, by and through Background Check Unit, Respondent.

          Argued and Submitted February 23, 2016

         Department of Human Services S13204627.

          Megan 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 General.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

         Case Summary:

         Petitioner 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.

         Held: 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.

         [286 Or.App. 29] SERCOMBE, P. J.

         Petitioner 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 therefore reverse.

         The 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.

         Under former ORS 181.534(14)(a), [1] 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 ...

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