Ceaser v. Dept. of Human Services

702

Submitted March 12, affirmed May 26, 2021

Nicole CEASER

and Happy Valley Children’s Garden, LLC,

Petitioners,

v.

DEPARTMENT OF HUMAN SERVICES,

Respondent.

Department of Human Services

TJS00015; A171908

493 P3d 66

Petitioners, child-care providers for low-income families, seek judicial review

of a Department of Human Services (DHS) final order. In its order, DHS sus-

pended petitioners from receiving employment related day care subsidy pay-

ments for a period of six months, pursuant to former OAR 461-165-0180(3)(c)

(Jan 24, 2019), renumbered as OAR 461-165-0180(3)(d) (Oct 1, 2019), after deter-

mining that petitioners had failed to comply with a condition of eligibility under

OAR 461-165-0180(8)(h)(B). On judicial review, petitioners raise four assign-

ments of error. First, they argue that DHS erred in concluding that they had been

provided proper notice of the suspension. Second, they assert that DHS erred in

concluding that a Notice of Awareness that DHS sent to petitioners following the

initial suspension did not waive DHS’s suspension rights. Third, they argue that

relevant provisions of OAR 461-165-0180 are unconstitutionally vague. Lastly,

they request plain-error review of their argument that OAR 461-165-0180(8)(h)(B)

exceeds DHS’s rule-making authority. Held: DHS did not err when it adopted

the administrative law judge’s proposed order in full, concluding that petition-

ers had been provided with adequate notice of the suspension, that DHS had

not waived its suspension rights when it sent the Notice of Awareness, and that

various provisions of OAR 461-165-0180 were not unconstitutionally vague. The

Court of Appeals declined to exercise its discretion to consider petitioners’ plain-

error argument.

Affirmed.

Vivien Lyon filed the briefs for petitioners.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Inge D. Wells, Assistant Attorney

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and

Powers, Judge.

SHORR, J.

Affirmed.

Cite as 311 Or App 702 (2021) 703

SHORR, J.

Petitioners, child-care providers for low-income

families, seek judicial review of a Department of Human

Services (DHS) final order. In its order, DHS suspended peti-

tioners from receiving employment related day care (ERDC)

subsidy payments for a period of six months, pursuant to

former OAR 461-165-0180(3)(c) (Jan 24, 2019), renumbered

as OAR 461-165-0180(3)(d) (Oct 1, 2019),1 after determining

that petitioners had failed to comply with a condition of eligi-

bility under OAR 461-165-0180(8)(h)(B). On judicial review,

petitioners raise four assignments of error. First, they argue

that DHS erred in concluding that they had been provided

proper notice of the suspension. Second, they assert that

DHS erred in concluding that a Notice of Awareness that

DHS sent to petitioners following the initial suspension did

not waive DHS’s suspension rights by providing a 60-day

period for petitioners to “come into compliance.” Third, they

argue that relevant provisions of OAR 461-165-0180 are

unconstitutionally vague. Lastly, they request plain-error

review of their argument that OAR 461-165-0180(8)(h)(B)

exceeds DHS’s rule-making authority. For the reasons that

follow, we reject all of petitioners’ assignments of error, and

therefore affirm.

Under the Administrative Procedures Act, ORS

183.310 to 183.690, “[r]eview of a contested case shall be

confined to the record, and the court shall not substitute

its judgment for that of the agency as to any issue of fact or

agency discretion.” ORS 183.482(7). We review an agency’s

order to determine if it is “supported by substantial evidence

in the record.” ORS 183.482(8)(c). Accordingly, we recite

the relevant facts from DHS’s final order, which adopted

an administrative law judge’s (ALJ’s) proposed order in its

entirety, and the relevant evidence from the record.

Petitioners Happy Valley Children’s Garden, LLC

(Happy Valley) and its owner Nicole Ceaser are child-care

providers licensed by the DHS Office of Child Care. They

1

At the time petitioners were first suspended, the provision of OAR 461-165-

0180 pertaining to suspended providers was contained in paragraph (3)(c). That

provision has since been renumbered to (3)(d). All subsequent references to the

suspended provider provision refer to the January 24, 2019, version, which was

in effect when petitioners were first placed on suspended status.

704 Ceaser v. Dept. of Human Services

operate two separate facilities in Portland. In October 2017,

Happy Valley applied for listing with ERDC as an approved

child care provider.2 That application process was completed

by a then-director at one of the Happy Valley sites, and

required that petitioners agree to various terms, including

the requirement that petitioners report any involvement

with Child Protective Services (CPS) to the Direct Pay Unit

(DPU) within five days of that involvement. Happy Valley

was approved for ERDC listing, and petitioners subsequently

enrolled ERDC-eligible children and received ERDC sub-

sidy payments directly from DPU. All of the nearly 110 chil-

dren enrolled at the Stark Street location received ERDC

subsidies as of April 2019.

DHS’s administrative rules require ERDC-approved

providers to report to DPU within five days “[a]ny involve-

ment of any subject individual or individual described

in section (5) of this rule with CPS or any other agencies

providing child or adult protective services.” OAR 461-165-

0180(8)(h)(B). The term “subject individual” is defined to

mean any individual who is subject to a criminal record

check by an administrative agency. OAR 125-007-0210(10).

All Happy Valley employees are subject to a background

check requirement.

In January 2018, DHS mailed petitioners a Child

Care Provider Notice of Awareness, informing them that

they had failed to report two instances of CPS contact in

August and December 2017 to the DPU within five days of

those occurrences. That notice explained the DPU reporting

requirements and warned that failure to report such con-

tacts “may result in a suspend[ed] status [for] a minimum of

six months and [ineligibility] for subsidy payments from the

ERDC program.” DHS did not impose any sanction at that

time. Ceaser claims to have never received that notice.

On November 5, 2018, CPS began investigating

petitioners in response to an allegation of abuse at the Stark

Street facility. CPS spoke to a director at that facility as

part of the investigation, and ultimately determined that

the allegation was “unfounded.” Petitioners did not report

2

ERDC is a DHS program that helps low-income working families pay the

cost of child care. See OAR 461-101-0100(8).

Cite as 311 Or App 702 (2021) 705

that involvement with CPS to DPU within five days, in

violation of ERDC program requirements. On January 25,

2019, DHS sent petitioners a notice via regular mail plac-

ing Happy Valley in suspended status and immediately

suspending its ERDC child care provider payments for a

six-month period for violating that DPU reporting require-

ment. However, shortly after the suspension was initiated,

petitioners requested a contested-case hearing, and DHS

agreed to reinstate petitioners’ eligibility for payments

pending that hearing and final resolution of the matter. On

February 15, 2019, DHS sent petitioners another Child Care

Provider Notice of Awareness, which stated, in part:

“The purpose of this letter is to provide additional clarify-

ing information regarding the DHS Child Care Provider

suspended status rule. Information previously shared

by the Direct Pay Unit (DPU) may not have accurately

conveyed the parameters of [former] OAR 461-165-0180

(3)(c)(B)(i) to (iii). After reviewing with DPU, we wanted to

ensure you are aware of the rule and associated param-

eters of a suspended provider. DHS is allowing a 60-day

window to support compliance with this rule.”

The notice went on to clarify the provisions of former OAR

461-165-0180(3)(c)(B)(i) to (iii), including that, when a pro-

vider is in suspended status, DHS will not pay “any other

child care provider” for child care at the suspended site,

and that DHS will not pay for child care at a suspended

provider’s second location unless DHS determines that the

reasons for the suspension are unrelated to the second loca-

tion. One week later, on February 22, 2019, DHS issued an

amended notice of suspension, delaying petitioner’s place-

ment in suspended status until April 15, 2019, after the

scheduled contested-case hearing.3 That notice informed

petitioners that they were “being placed in a suspended sta-

tus as a Department of Human Services (DHS) child care

provider starting 04/15/2019, and will no longer [be] eligible

for subsidy payments for providing child care.” (Boldface in

original.)

3

The amended notice of suspension made no mention of the scheduled

contested-case hearing. However, the date for the hearing had been set two days

prior, and the document scheduling that hearing had been electronically served

on a DHS representative at that time. Therefore, we infer that DHS was aware

of the scheduled hearing date when they sent the amended notice of suspension.

706 Ceaser v. Dept. of Human Services

A contested-case hearing was held on April 11, 2019,

before an ALJ from the Office of Administrative Hearings.

Petitioners raised several legal challenges but did not con-

test the allegation that they failed to report their November

CPS contact to DPU. Buss, the DHS analyst who sent the

various mailings at issue and made the decision to suspend

petitioners, testified that she considered petitioners’ “history

of failures to comply” in reaching her decision to suspend

petitioners for the November 2018 failure to report. Buss

also testified to her reasons for sending the February 15,

2019, Notice of Awareness. She stated that the purpose of

the notice was to “inform the provider about how a suspen-

sion would work when there’s multiple sites.”

“This is not meant to be a second chance of compliance.

This notice was just to inform them that if an action is

taken against one of the locations that * * * any other site

the provider is involved in in regards to care cannot be con-

ducted while in suspen[ded] status, so it’s not a secondary

chance.”

The ALJ found that petitioners had “failed to meet

the requirement of OAR 461-165-0180(8)(h)(B) when [they]

failed to report [their] involvement with CPS within five days

to the DPU.” (Footnotes omitted.) The ALJ also rejected peti-

tioners’ legal challenges to the imposition of the suspension.

First, the ALJ rejected petitioners’ arguments that DHS

had provided insufficient notice of the suspension and con-

cluded that those arguments were “unpersuasive” because

“the suspension applied to both of Claimant’s child care

provider numbers” or locations and “the Department served

notice via regular mail, which * * * is permissible per ORS

411.103(1).” Next, the ALJ rejected petitioners’ arguments

that certain sections of OAR 461-165-0180 were unconsti-

tutionally vague. The ALJ credited DHS’s interpretation of

the term “[a]ny involvement” in OAR 461-165-0180(8)(h)(B)

as meaning “any contact between a provider and CPS.” The

ALJ also rejected petitioners’ other vagueness arguments,

concluding that, “[a]lthough the regulation is broad, it does

not afford the Department any discretion in its application.

Neither does the regulation rely on ‘shifting or subjective

judgments’ of the Department, nor is it so poorly written as

to fail to provide fair warning of the conduct it prohibits.” In

Cite as 311 Or App 702 (2021) 707

regards to petitioners’ argument that the February Notice

of Awareness waived DHS’s suspension rights, the ALJ

concluded that that argument was “unpersuasive because,

although the letter afforded Claimant additional time to

become compliant with OAR 461-165-0180, nowhere in the

letter does it state that the Department would not suspend

Claimant after the 60 days expired.” Having disposed of

those legal arguments, the ALJ ruled that, “[p]ursuant to

[former] OAR 461-[165]-0180(3)(c)(B)(i), claimant is ineligible

for child care provider payments for a period of at least six

months.” Petitioners filed exceptions to that proposed order.

After considering those exceptions, DHS rejected them and

adopted the ALJ’s entire proposed order as its final order.

On judicial review, petitioners first assert that DHS

failed to provide them with proper notice of the suspen-

sion. We review DHS’s legal conclusions, including the ade-

quacy of DHS’s notice, for legal error. See ORS 183.482(8)(a);

Villanueva v. Board of Psychologist Examiners, 175 Or App

345, 355-58, 27 P3d 1100 (2001), adh’d to on recons, 179 Or

App 134, 39 P3d 238 (2002). Specifically, petitioners argue

that DHS did not have jurisdiction to impose the suspension

under ORS 183.415(2) because the original suspension let-

ter failed to properly identify which of petitioners’ child-care

locations were being suspended. Although DHS concluded

that the suspension applies to both of petitioners’ locations,

petitioners assert that DHS erred in reaching that conclu-

sion. Additionally, petitioners argue that the suspension let-

ter violated ORS 183.415(2) because it was not personally

served or sent by certified or registered mail, but instead

was sent through first class mail. With regard to DHS’s con-

clusion that ORS 411.103(1) permitted notice by first class

mail, petitioners allege that DHS ignored their argument

that ORS 411.103(1) could not apply because “the notice did

not contain a short, plain statement of the matters asserted

or charged, as required by ORS 183.415(3)(d).” In response,

DHS contends that the original suspension letter provided

adequate notice and complied with ORS 183.415, and that

ORS 411.103(1) permitted notice by regular mail in this

case. DHS also claims that petitioners never advanced an

argument below that the suspension letter did not comply

with ORS 183.415(3)(d).

708 Ceaser v. Dept. of Human Services

We first address, and reject, petitioner’s argument

that the original suspension letter provided insufficient

notice because it did not clarify which facility was being

suspended. Former OAR 461-165-0180(3)(c)(B)(iii) states

that “[t]he Department does not pay a child care provider

at another site if the ‘suspended’ provider is involved in the

child care operation unless the Department determines that

the reasons the provider is in ‘suspended’ status are not

relevant to the new site.” (Emphases added.) Because the

default operation of former OAR 461-165-0180(3)(c)(B)(iii)

is that a suspension will apply to all sites a suspended

provider is involved in unless that specific determination

is made, the suspension letter in this case did not provide

deficient notice merely because it did not specify a certain

Happy Valley location or provider number. Therefore, DHS’s

letter provided sufficient notice that the suspension applied

to both locations and DHS did not err in concluding that the

suspension applied to both Happy Valley locations.

Petitioners’ other notice arguments also fail. ORS

183.415 requires that, “[i]n a contested case, all parties

shall be afforded an opportunity for hearing after reason-

able notice, served personally or by registered or certified

mail” and notice must include “[a] short and plain state-

ment of the matters asserted or charged[.]” ORS 183.415(2),

(3)(d). However, ORS 411.103(1) provides that DHS “may

serve a notice described in ORS 183.415 by regular mail.”

Contrary to DHS’s assertion, petitioners did preserve their

argument that the notice lacked “a short and plain state-

ment of the matters asserted or charged” when they raised

that argument in both their amended hearing memoran-

dum and their written closing arguments. DHS responded

to that argument in the agency’s own written closing argu-

ment. Regardless, the argument is without merit because

the suspension letter complied with ORS 183.415(3)(d)

and ORS 411.103(1). The suspension letter articulated,

“Records indicate you or a subject individual had involve-

ment with CPS or other agencies providing child or adult

protective services, on 11/05/2018, which was not reported

to DPU within five days of the occurrence.” Although that

allegation could have provided additional details, the inclu-

sion of the exact date and a description of the circumstances

Cite as 311 Or App 702 (2021) 709

alleged provides adequate information to comply with ORS

183.415(3)(d). See, e.g., Sachdev v. Oregon Medical Board,

292 Or App 778, 793, 426 P3d 118 (2018) (allegations in

Oregon Medical Board complaint were sufficient under ORS

183.415(3)(d) where complaint alleged that, on a specific

date, licensee had text-messaged a patient and clinic staff

in violation of an interim order, even though allegations did

not identify the patient or staff involved). Petitioners make

no argument that the defects they perceive in the suspension

letter prevented them from preparing an adequate defense.

See id. at 785 (explaining that the primary purpose of the

notice requirement is to allow the party an “opportunity to

prepare an adequate defense”). Absent such an argument,

we readily conclude that the suspension letter provided ade-

quate notice and complied with both ORS 183.415 and ORS

411.103(1).

Further, we reject petitioners’ argument that DHS’s

order was deficient because it purportedly did not directly

address petitioners’ argument that the suspension letter

failed to include a “short and plain statement of the matters

asserted or charged.” DHS necessarily rejected that legal

argument in concluding that the notice in this case could

be served by regular mail under ORS 411.103(1). As noted,

ORS 411.103(1) allows DHS to serve a notice by regular mail

if it is “a notice described in ORS 183.415.”

We turn to petitioners’ second assignment of

error. Petitioners argue that DHS erred in concluding

that the February 15, 2019, Child Care Provider Notice of

Awareness did not “provide an opportunity for Appellant to

come into compliance and avoid the suspension.” We review

an agency’s factual findings for substantial evidence, ask-

ing whether the record, viewed as a whole, would permit a

reasonable person to make that finding. ORS 183.482(8)(c).

Petitioners argue, as they did at the contested-case hearing,

that the Notice of Awareness afforded them a “grace period,

at the end of which, given compliance, Petitioners would

no longer face the threatened consequences of noncompli-

ance.” Petitioners contend that the notice’s statement that

DHS was “allowing a 60-day window to support compliance

with this rule” referred to petitioners’ compliance with “the

710 Ceaser v. Dept. of Human Services

broader provisions of OAR 461-165-0180, including making

timely reports related to involvement with CPS.” Petitioners

point to evidence in the record that they complied with OAR

461-165-0180 “to the best of their understanding and abil-

ity” during the 60-day period. Petitioners cite no regula-

tion, statute, or case law in support of their argument, but

contend that, “[g]iven the uniqueness of the circumstance,

there is no applicable regulation, statute or case law to cite.”

In response, DHS contends that substantial evidence in the

record supports DHS’s determination that the notice did not

waive its suspension rights, because “there was no evidence

in the record suggesting that by agreeing to delay the sus-

pension, the department intended to waive it.”

Waiver is “ ‘the intentional relinquishment of a

known right.’ ” Drews v. EBI Companies, 310 Or 134, 150,

795 P2d 531 (1990) (quoting Brown v. Portland School Dist.

#1, 291 Or 77, 84, 628 P2d 1183 (1981)). “Waiver must be

plainly and unequivocally manifested, either ‘in terms or by

such conduct as clearly indicates an intention to renounce

a known privilege or power.’ ” Wright Schuchart Harbor

v. Johnson, 133 Or App 680, 685-86, 893 P2d 560 (1995)

(quoting Great American Ins. v. General Ins., 257 Or 62, 72,

475 P2d 415 (1970)). The question of whether a waiver has

occurred is answered by examining the particular circum-

stances of each case. Wright Schuchart Harbor, 133 Or App

at 686.

Applying that law, we consider whether substantial

evidence in the record supported DHS’s conclusion that the

February Notice of Awareness did not constitute a plain and

unequivocal manifestation of DHS’s intention to relinquish

its right to suspend petitioners’ ERDC payments. The Notice

of Awareness began by saying:

“The purpose of this letter is to provide additional clarify-

ing information regarding the DHS Child Care Provider

suspended status rule. Information previously shared

by the Direct Pay Unit (DPU) may not have accurately

conveyed the parameters of [former] OAR 461-165-0180

(3)(c)(B)(i) to (iii). After reviewing with DPU, we wanted to

ensure you are aware of the rule and associated parame-

ters of a suspended provider.”

Cite as 311 Or App 702 (2021) 711

The plain and unequivocal meaning of that text is that the

notice is intended to provide information about the sus-

pended provider rule, former OAR 461-165-0180(3)(c)(B), due

to the possibility that previously communicated information

regarding that particular rule may not have been accurate.

That meaning is consistent with the testimony of Buss, who

stated that the notice “was generated to provide informa-

tion” about the mechanics of the suspended provider rule,

former OAR 461-165-0180(3)(c)(B), and, in particular, former

OAR 461-165-0180(3)(c)(B)(iii), a provision that applies to

providers like Happy Valley who receive ERDC payments at

multiple locations.

The next sentence in the Notice of Awareness, “DHS

is allowing a 60-day window to support compliance with

this rule,” is admittedly potentially confusing. Former OAR

461-165-0180(3)(c)(B) outlines how DHS proceeds when a

provider is suspended; it contains no provisions that require

action or compliance on a provider’s part. However, that sin-

gle ambiguous sentence does not transform the notice into a

plain and unequivocal manifestation of DHS’s intention to

relinquish its suspension rights. The remainder of the letter

explains the provisions of former OAR 461-165-0180(3)(c)(B)

and directs the reader to the Child Care Provider Guide for

more information. The notice makes no mention whatso-

ever of the wider provisions of OAR 461-165-0180, or OAR

461-165-0180(8)(h)(B) in particular, the provision requiring

DPU reporting that had prompted petitioners’ suspension.

Buss’s testimony that the notice was “not meant to be a sec-

ond chance of compliance” and was “just to inform” petition-

ers about the provisions of former OAR 461-165-0180(3)(c)(B)

is consistent with the text of the notice itself, and indicates

that the sentence “DHS is allowing a 60-day window to sup-

port compliance with this rule” refers only to former OAR

461-165-0180(3)(c)(B) and not the wider provisions of OAR

461-165-0180.

Nothing in the wider context or circumstances of

this case leads us to view the Notice of Awareness or its

single ambiguous sentence in a different light. See Bank

of Eastern Oregon v. Griffith, 101 Or App 528, 534, 792

P2d 1210 (1990) (considering circumstantial evidence in

712 Ceaser v. Dept. of Human Services

evaluating whether a party had waived certain rights). The

notice was sent three weeks after petitioners were first sus-

pended for violating OAR 461-165-0180(8)(h)(B). Sometime

shortly after petitioners were first suspended, petitioners’

counsel and DHS agreed that the suspension would be

delayed pending the contested-case hearing. One week after

petitioners were sent the Notice of Awareness, petitioners

were sent an amended notice of suspension, which explained

that Happy Valley would be “placed in a suspended status

* * * starting 04/15/2019.” (Boldface in original.) Considering

those facts, the wider circumstances of petitioners’ com-

munications with DHS were consistent with the text of the

Notice of Awareness and indicate that DHS still intended

to suspend petitioners (pending a favorable ruling at the

contested-case hearing) and did not intend on relinquishing

its right to suspend petitioners’ ERDC payments. In light of

the above, DHS’s factual findings were supported by sub-

stantial evidence in the record. Considering the record as a

whole, it was reasonable for DHS to conclude that the letter

did not communicate DHS’s intention to waive its suspen-

sion rights.

In their third assignment of error, petitioners argue

that DHS erred in concluding that provisions of OAR 461-

165-0180 (specifically, those requiring CPS-contact report-

ing and allowing DHS to suspend providers who fail to make

those reports) are not unconstitutional in all applications.

Relying on both the Due Process Clause of the Fourteenth

Amendment to the United States Constitution and Article I,

sections 20 and 21, of the Oregon Constitution, petitioners

contend that the regulation is “so vaguely crafted as to per-

mit arbitrary or unequal application and uncontrolled dis-

cretion,” “contains unidentifiable standards or employ[s]

standards that rely on the shifting and subjective judg-

ments of the person who [is] charged with enforcing it,” and

is “so poorly written as to fail to provide fair warning of

the conduct it prohibits.” (Internal quotation marks omit-

ted.) In response, DHS contends that petitioners have not

met their burden to establish that OAR 461-165-0180 is

facially unconstitutional, because such a claim requires a

showing that the rule specifies no standard of conduct at all.

We review DHS’s determination that the rule in question is

Cite as 311 Or App 702 (2021) 713

constitutional for errors of law. See ORS 183.482(8)(a). As

explained below, we conclude that the particular provisions

of OAR 461-165-0180 at issue are not unconstitutionally

vague in all possible applications.

First, petitioners contend that DHS’s interpreta-

tion of the OAR 461-165-0180(8)(h)(B) requirement that

providers report “[a]ny [CPS] involvement” by any “subject

individual” is too broad, would require 30 to 50 contacts a

week from providers like Happy Valley, and should not be

entitled to deference by this court. In State v. Krueger, we

explained that a party must show that a law is unconsti-

tutionally vague in all possible applications to prevail on a

facial vagueness challenge, and articulated that, “if we can

identify conduct that the statute clearly proscribes, then it

is irrelevant that the defendant is able to identify problems

concerning how the statute might be applied to other con-

duct.” 208 Or App 166, 171, 144 P3d 1007 (2006). The same

general principles apply here. OAR 461-165-0180(8) dic-

tates, in part, that “[e]ach provider must * * * [r]eport to the

Department’s Direct Pay Unit within five days of occurrence

* * * [a]ny involvement of any subject individual or individual

described in section (5) of this rule with CPS or any other

agencies providing child or adult protective services.” The

regulation would at least apply where the director at a pro-

vider site receives a visit from CPS as part of that agency’s

investigation into an allegation of child abuse at the site.

Such are the exact circumstances at issue in this case.

Petitioners also argue that former OAR 461-165-

0180(3)(c)(A) allows DHS analysts discretion to suspend or

not suspend providers based on whatever factors the ana-

lyst chooses to consider, without the aid of written guidance,

allowing suspension decisions to be made based on an ana-

lyst’s subjective judgments. However, former OAR 461-165-

0180(3)(c)(A) is not unconstitutionally vague merely because

it states that “[a] provider may be ‘suspended,’ ” (empha-

sis added), thereby giving DHS analysts discretion in the

decision of whether to suspend a provider or merely issue a

warning, because the rule still requires that DHS determine

that the provider violated one of several specific delineated

eligibility requirements before a suspension may occur.

714 Ceaser v. Dept. of Human Services

Petitioners next contend that DHS erred by not pro-

viding sufficient factual findings or reasoning in support

of some of its legal conclusions rejecting petitioners’ con-

stitutional arguments. However, DHS considered and cor-

rectly rejected petitioners’ constitutional arguments when

it explained that the regulation does not provide DHS with

“any discretion in its application. Neither does the regulation

rely on ‘shifting or subjective judgments’ of the Department,

nor is it so poorly written as to fail to provide fair warning

of the conduct it prohibits.”

In their final assignment of error, petitioners argue

that DHS erred in enforcing OAR 461-165-0180(8)(h)(B)

because that regulation exceeds DHS’s delegated rule-

making authority and is “not necessary to ensure full

compliance with federal and state laws relating to public

assistance programs and functions administered by the

department,” due to the fact that testimony elicited at the

contested-case hearing indicated that DPU had internal

mechanisms that alerted them when ERDC child care pro-

viders had CPS involvement. Petitioners concede that the

argument is unpreserved but request in their reply brief

that we review the issue for plain error. We decline to review

that issue, because it was raised for the first time in reply

briefing. See State v. Murga, 291 Or App 462, 468, 422 P3d

417 (2018) (declining to exercise discretion to consider an

issue as plain error where that argument was raised for the

first time in the appellant’s reply brief).

In sum, we conclude that DHS did not err when it

adopted the ALJ’s proposed order in full, concluding that

petitioners had been provided with adequate notice of their

suspension from ERDC subsidy payments, that DHS had not

waived its suspension rights when it sent the February 15,

2019, Child Care Provider Notice of Awareness, and that

various provisions of OAR 461-165-0180 were not uncon-

stitutionally vague. We decline to exercise our discretion to

consider petitioners’ plain error argument. In light of the

above, we affirm DHS’s final order.

Affirmed.