Anderson v. Background Check Unit 286 Or App 27 (2017)

Under OAR 407-007-00330(7)(a): “The [subject individual] must participate in the administrative review. Participation may include, but is not limited to, providing additional information or additional documents requested by the BCU with a specified amount of time.”

On appeal Petitioner sought review of an order of the Background Check Unit (BCU) of the Department of Human Services (DHS). Petitioner filed a timely request for a hearing which was subsequently denied by BCU. On appeal Petitioner assigned error to BCU’s dismissal of her request for a hearing, based on petitioner’s failure to participate in an administrative review after the request had been received per OAR 407-007-00330(7). DHS argued that although OAR 407-007-00330(12)(b) does not define “failure to participate,” the meaning of the phrase is simply the opposite of “participation”. DHS further contended that Petitioner was required to provide all of the additional information or documents requested and because the petitioner had failed to provide answers to all of the questions asked and all of the documents requested, she failed to participate. “The [subject individual] must participate in the administrative review. Participation may include but is not limited to providing additional information or additional documents requested by the BCU with a specified amount of time.” OAR 407-007-00330(7)(a). This court rejected DHS’s interpretation of the rule, reasoning that “failure” is non-participation in the process, not incomplete participation, as suggested by literal definitions of the term “failure” and the Model Rules that govern the hearing. Thus, the Court of Appeals held that the petitioner did not fail to participate in the administrative review process and therefore, BCU’s dismissal of Petitioner’s request for a hearing before an ALJ was improper. Reversed and remanded.