The opinion
19
Submitted August 1, 2022, affirmed March 29, 2023
SUNNY OAKS, INC.,
Petitioner,
v.
DEPARTMENT OF HUMAN SERVICES,
Respondent.
Department of Human Services
2020DHS12670; A176103
527 P3d 1063
Petitioner, who operates a residential care facility for adults with develop-
mental disabilities, seeks review of a final order issued by the Department of
Human Services (DHS) that found it committed abuse by neglect under ORS
430.735. DHS initiated an abuse investigation after a nonverbal occupant of peti-
tioner’s facility was hospitalized on multiple occasions for problems relating to
constipation. On review, petitioner contends that the investigation was not con-
ducted in accordance with two administrative rules and that those investigatory
violations materially impaired the fairness and correctness of the abuse deter-
mination. Held: Although the Court of Appeals agreed that DHS violated the
administrative rules in conducting its investigation, the violations were not suffi-
cient under the circumstances of this case to disturb the agency’s ruling. That is,
petitioner did not establish that DHS’s failure to follow the prescribed procedures
materially impaired either the fairness of the proceedings or the correctness of
the agency’s determination.
Affirmed.
Heidi W. Mason and Innova Legal Advisors PC filed the
briefs for petitioner.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
POWERS, J.
Affirmed.
20 Sunny Oaks, Inc. v Dept. of Human Services
POWERS, J.
Petitioner, who operates a residential care facility
for adults with developmental disabilities, seeks review of
a final order issued by the Oregon Department of Human
Services (DHS) that found it committed abuse by neglect
under ORS 430.735. DHS initiated an abuse investiga-
tion after LR, a nonverbal occupant of petitioner’s facility,
was hospitalized on multiple occasions for problems relat-
ing to constipation. After a contested case hearing, DHS
ultimately issued a final order concluding that there was
a preponderance of evidence establishing the abuse deter-
mination. On review, petitioner does not challenge the
abuse finding for lack of substantial evidence; rather, peti-
tioner contends that DHS’s failure to conduct the abuse
investigation in accordance with two administrative rules
was a violation of ORS 430.731 (requiring that investiga-
tions be conducted in a uniform, objective, and thorough
manner) and ORS 430.737 (requiring that investigations
be thorough and unbiased). Petitioner argues that those
investigatory violations materially impaired the fairness
and correctness of the abuse determination. As explained
below, because the violations of the administrative rules
are not sufficient under the circumstances of this case to
disturb the agency’s ruling and because we conclude that
the fairness of the hearing was not materially impaired, we
affirm.
We review an agency’s order for errors of law and
substantial evidence. ORS 183.482(8)(a), (c). Substantial evi-
dence “exists to support a finding of fact when the record,
viewed as a whole, would permit a reasonable person to
make that finding.” ORS 183.482(8)(c). If we conclude that
an agency’s exercise of discretion is inconsistent with the
agency’s own rule and that inconsistency is not explained
by the agency, we will remand the order to the agency under
ORS 183.482(8)(b)(B). In conducting our review, “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).
In accordance with those standards, we briefly recount the
uncontested facts relied on by DHS to substantiate the
abuse allegations.
Cite as 325 Or App 19 (2023) 21
LR suffers from chronic constipation and thus had a
“constipation protocol” in place whereby staff monitored and
recorded LR’s daily intake (food and drink) and elimination
(bowel movements). The protocol required that staff notify a
supervisor and LR’s physician in the event that LR had no
stool or only small stool in seven days.1 On January 14, staff
called 9-1-1 for transport to the hospital because LR had
fluctuating temperatures, looked miserable, and was shak-
ing profusely. LR’s daily intake and elimination logs written
by staff showed that between January 4 and January 14 no
bowel movements were recorded that qualified for purposes
of the protocol. In addition to the daily logs, staff completed
a report on January 14 which provided that LR had not had
a bowel movement for 11 days. The report further docu-
mented that there was nothing in LR’s daily logs to indicate
that she’d been given any constipation medications or that
her physician had been notified.
The doctor who evaluated LR on January 14 con-
firmed that she “was severely constipated but not to the
point [where] they need to do surgery.” LR was treated and
discharged. On January 15, LR was again transported to
the hospital due to vomiting and brown discharge com-
ing from her nose. An ultrasound showed no evidence of
bowel obstruction, but she was diagnosed with a urinary
tract infection. DHS investigator Keen wrote to petitioner’s
Senior, Residential, and Executive Directors on January 15:
“[Neither s]taff nor the house manager notified the doctor
or took [LR] to the hospital until it had been 11 days since
her last” bowel movement. Finally, on January 16, LR was
taken to the hospital for a third time. She was discharged
from the hospital four days later on January 20 with a prin-
cipal diagnosis of “intractable nausea and vomiting likely
due to constipation.”
Over 300 days later, DHS issued a Notice of Abuse
Determination, concluding that petitioner had committed
1
LR’s protocol had been updated on November 26, 2018, requiring notice to
a supervisor and physician after just five days of no stool and eliminating the
requirement that staff record LR’s bowel movements. Petitioner was required to
train its staff on the updated protocol by January 1, 2019. However, petitioner
failed to do so until January 17, 2019, which was after the events at issue.
22 Sunny Oaks, Inc. v Dept. of Human Services
abuse by neglect of LR under ORS 430.735.2 Petitioner
sought a contested case hearing, arguing in a prehearing
motion before an administrative law judge (ALJ) that DHS
failed to adhere to the requirements set out in two adminis-
trative rules that govern the process for investigations into
abuse of adults with disabilities. The first administrative
rule is OAR 407-045-0300, which provides, in part:
“(2) In conducting an abuse investigation, the inves-
tigator shall attempt and, when possible, complete the
following:
“(a) make in-person contact with the adult;
“(b) Interview the adult, witnesses, the AP and other
individuals who may have knowledge of the facts of the
alleged abuse or related circumstances.”
The second rule, OAR 407-045-0320, requires that the
report be submitted “[w]ithin 55 calendar days of receiving
the complaint alleging abuse.”
There is no dispute that DHS failed to adhere to
the requirements of those rules. The DHS report was not
submitted for more than 300 days after petitioner received
the complaint, and DHS investigator Shaffer did not con-
duct interviews with LR, the staff responsible for the care of
LR, or with LR’s primary care physician. Despite those vio-
lations, the ALJ denied petitioner’s motion, concluding that
evidence of the timeliness, fairness, and thoroughness of the
investigation would be considered in determining whether
DHS had shown, by a preponderance of the evidence, that
2
ORS 430.735 provides, in part:
“(1) ‘Abuse’ means one or more of the following:
“* * * * *
“(e) Neglect.
“* * * * *
“(10) ‘Neglect’ means:
“(a) Failure to provide the care, supervision or services necessary to
maintain the physical and mental health of an adult that may result in phys-
ical harm or significant emotional harm to the adult;
“(b) Failure of a caregiver to make a reasonable effort to protect an adult
from abuse; or
“(c) Withholding of services necessary to maintain the health and well-
being of an adult that leads to physical harm of the adult.”
Cite as 325 Or App 19 (2023) 23
petitioner was responsible for abuse of LR. After the con-
tested case hearing, the ALJ concluded that DHS had met
its burden and substantiated the abuse finding.
It is well established that where an administrative
rule does not specify a consequence for failing to adhere to
it, we are not authorized to impose one. See, e.g., Gleason
v. Oregon Racing Comm., 233 Or App 164, 168, 225 P3d
123 (2010) (explaining that “in the absence of some conse-
quence specified in the administrative rule for the failure
to hold a hearing within 90 days, we are not authorized to
impose one”); Guzman v. Board of Parole, 200 Or App 448,
456, 115 P3d 983 (2005), rev den, 340 Or 34 (2006) (reject-
ing the petitioner’s argument that untimeliness of a hearing
required reversal of the board’s order and explaining that
“[t]he remedy for a violation of the time requirements is an
issue of legislative intent”). A petitioner may still prevail,
however, even if there is no consequence specified in the
administrative rule or governing statutes, when the peti-
tioner demonstrates that the agency’s failure to adhere to
the rule or rules compromised the petitioner’s ability to have
a fair hearing. Gleason, 233 Or App at 169; see also ORS
183.482(7) (authorizing remand for further agency action
if “either the fairness of the proceedings or the correctness
of the action may have been impaired by a material error
in procedure”). Here, neither OAR 407-045-0300 nor OAR
407-045-0320 specify a consequence for failing to adhere to
the standards outlined in the rules. Accordingly, petitioner
can prevail only if we conclude that DHS’s delayed inves-
tigation and decision not to interview key witnesses were
material errors that impaired petitioner’s ability to have a
fair hearing.
We are unpersuaded that the agency’s violations
impaired petitioner’s ability to have a fair hearing, which
would require a remand under ORS 183.482(8)(b)(B). Shaffer
testified that the investigative delay was the result of staff
turnover at DHS. Regarding his decision not to interview
witnesses when he took over the case, Shaffer explained
that “[t]he reasoning behind that was to stick with a clear
written record that was created near the time of the incident
itself rather than to attempt to talk to staff about something
24 Sunny Oaks, Inc. v Dept. of Human Services
that had occurred roughly six or seven months prior.” Thus,
the agency explained the inconsistencies between the inves-
tigation and its own rules.
Further, none of the cases petitioner cites are per-
suasive given the circumstances of this case. Those cases are
distinct from this one because, in those cases, the agencies’
violations either compromised the correctness and fairness
of the hearing in an identifiable way or were unexplained.
See, e.g., Hale v. OSP, 33 Or App 529, 532, 577 P2d 531 (1978)
(reversing where the agency’s delay, in violation of its rules,
was prejudicial because the petitioner spent additional time
in segregation); Fors v. Motor Vehicles Division, 47 Or App
447, 452-53, 615 P2d 331 (1980) (reversing where the agency
suspended the petitioner’s driver’s license without adhering
to the administrative rules, and the record contained no
indication as to why they were not followed); Glass v. AFSD,
67 Or App 319, 323, 677 P2d 1096 (1984), overruled in part
on other grounds by Pahle v. AFSD, 72 Or App 606, 696 P2d
1135, rev den, 299 Or 443 (1985) (holding that the Medical
Review Team’s failure to consider the plaintiff’s exhibits
tainted the determination and may have impaired the cor-
rectness and fairness of the decision). As explained above,
the record here contains evidence as to why the rules were
not followed and there has been no showing that the fair-
ness of the hearing was materially impaired.
Finally, we reject petitioner’s additional claims of
harm or prejudice resulting from the rule violations, such
as the impact to its public reputation and an inability to
conduct its own internal investigation under OAR 411-323-
0040.3 Neither alleged harm affected the fairness or the
3
OAR 411-323-0040 provides, in part:
“(5) When abuse is alleged or death of an individual has occurred and a
law enforcement agency, the Department, or the designee of the Department
has determined to initiate an investigation, the [certified] agency may not
conduct an internal investigation without prior authorization from the
Department. For the purposes of this section, an ‘internal investigation’ is
defined as:
“(a) Conducting interviews of the alleged victim, witness, the accused
person, or any other person who may have knowledge of the facts of the abuse
allegation or related circumstances;
“(b) Reviewing evidence relevant to the abuse allegation, other than the
initial report; or
Cite as 325 Or App 19 (2023) 25
correctness of the hearing, which would require a remand
under ORS 183.482(7). That is, petitioner did not demon-
strate that any impact on its public reputation altered—
much less impaired—the fairness or the correctness of the
proceeding. Similarly, petitioner did not demonstrate that
DHS withheld authorization for an internal investigation
to proceed under OAR 411-323-0040(5), much less that the
results of any delayed internal investigation impaired the
fairness or the correctness of the proceeding.
Accordingly, although we agree with petitioner’s
argument and DHS’s acknowledgment that an investigative
delay of more than 300 days is a violation of the applicable
administrative rules, that conclusion does not necessitate a
remand under the circumstances of this case. Petitioner has
not established that the failure to follow the prescribed pro-
cedures materially impaired either the fairness of the pro-
ceedings or the correctness of the agency’s determination.
Affirmed.
“(c) Any other actions beyond the initial actions of determining:
“(A) If there is reasonable cause to believe that abuse has occurred;
“(B) If the alleged victim is in danger or in need of immediate protective
services;
“(C) If there is reason to believe that a crime has been committed; or
“(D) What, if any, immediate personnel actions must be taken to assure
individual safety.”