Sunny Oaks, Inc. v. Dep’t of Hum. Servs.

The court may remand for further agency action only “when the petitioner demonstrates that the agency’s failure to adhere to the rule or rules compromised the petitioner’s ability to have a fair hearing.” Gleason v. Oregon Racing Comm., 233 Or App 164, 169, 225 P3d 123 (2010).

Petitioner appealed a Dep’t of Hum. Servs. (DHS) final order finding that their residential care facility committed abuse by neglect. Petitioner assigned error to DHS’s violation of their own administrative rules. On appeal, Petitioner argued that DHS’s investigatory violations “materially impaired the fairness and correctness of the abuse determination.” The court may remand for further agency action only “when the petitioner demonstrates that the agency’s failure to adhere to the rule or rules compromised the petitioner’s ability to have a fair hearing.” Gleason v. Oregon Racing Comm., 233 Or App 164, 169, 225 P3d 123 (2010). The Court acknowledged that DHS failed to follow their own rules. However, the Court reasoned that, because DHS stated that their investigative delay was caused by staff turnover, they were able to explain the discrepancy between their investigation and their own rules. The Court further reasoned that Petitioner did not show that “the fairness of the hearing was materially impaired” or that Petitioner was harmed by DHS’s rule violations. Thus, DHS’s failure to follow its own rules did not result in an unfair hearing, and a remand was not warranted.  AFFIRMED.