198 September 23, 2026 No. 885
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
OREGON EDUCATION ASSOCIATION
and Oregon School Employees Association,
Petitioners,
v.
DEPARTMENT OF HUMAN SERVICES,
Respondent.
Department of Human Services
A183962
Argued and submitted August 27, 2025.
Luke Kuzava argued the cause for petitioners. Also on
the brief were Sarah K. Drescher and Tedesco Law Group.
Inge D. Wells, Assistant Attorney General argued the
cause for respondent. Also on the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
SHORR, P. J.
Portion of OAR 419-230-0170(2)(c) stating “supervision,
protection, or nurturing” held invalid; OAR 419-230-0170(2)
(c)(C) held invalid; OAR 419-230-0170(2)(c)(D) held invalid;
OAR 419-230-0170(2)(c)(E) held invalid.
Cite as 353 Or App 198 (2026) 199
SHORR, P. J.
In this rule challenge under ORS 183.400, petitioners seek review of a number of subsections of a rule promulgated by the Oregon Department of Human Services
(ODHS), ORS 419-230-0170.1 The rule defines “abuse of a
child” for purposes of investigations in schools. ORS 419-230-0170(2). Petitioners maintain that certain portions of
the definition are invalid because they conflict with the statutory definition of abuse at ORS 419B.005(1)(a), and ODHS
therefore exceeded its statutory authority in promulgating
the definition.2 We conclude that certain portions of the rule are invalid. The remainder of petitioners’ challenge has
been rendered moot and we do not reach the moot issues.
I. STATUTORY, REGULATORY, AND PROCEDURAL
BACKGROUND
We begin with the statutory and regulatory background before turning to the procedural history and the
parties’ arguments.
In 2019, the legislature passed Senate Bill (SB)
155, which created a mandate for law enforcement or ODHS
to conduct investigations into reports of abuse involving
a child and a person who was a school employee, contractor, agent or volunteer. Or Laws 2019, ch 618, § 14; codified
at ORS 419B.019. ORS 419B.019 was added to and made
a part of the series ORS 419B.005 to 419B.050, Or Laws
2019, ch 618, § 13, and therefore is subject to the definitions in ORS 419B.005. ORS 419B.005(1)(a) consists of an extensive definition of “abuse,” which is applicable to that series
1
When petitioners initiated this rule challenge, it was directed at a previous version of the rule, OAR 407-047-0270. The rule was subsequently renumbered to OAR 419-230-0170, and has since been amended. We refer to the current numbering in this opinion.
Furthermore, as discussed below, certain portions of petitioners’ challenge have been rendered moot by the amendments. For the portion of petitioners’ challenge that is not moot, the rule has not substantively changed, and we have granted petitioner’s request to amend the petition for review to refer to the current rule.
2
Petitioners alternatively argue that portions of the rule are unconstitutionally vague. Because we resolve this matter on petitioners’ first argument, which presents a sub-constitutional statutory issue, we need not reach the vagueness argument.
200 Oregon Education Assn. v. Dept. of Human Services
of statutes, and covers a wide range of actions, the relevant
details of which will be discussed below.
As part of SB 155, ODHS was given the authority to
“adopt any rules necessary for the administration” of the new
mandate to investigate abuse in schools. ORS 419B.019(6).
ODHS promulgated rules relating to such investigations,
including actions that must be taken when reports of abuse
are received, timelines for completing such actions, the
standard of proof and possible outcomes of an abuse determination, and rules regarding confidentiality. OAR chapter
419, division 230. As part of the abuse determination process, the rules included a comprehensive definition of abuse.
Certain portions of that definition, now appearing at OAR
419-230-0170(2), are the subject of this rule challenge.
Petitioners brought this petition for review. They
challenge multiple portions of the rule, arguing that ODHS
exceeded its statutory authority by promulgating a definition of abuse that expands on and is inconsistent with the
statutory definition at ORS 419B.005(1)(a), such that the
rule makes certain actions “abuse” that would not constitute
abuse under the statute. ODHS asserts that the challenged
portions of the rule do not exceed its statutory authority
because they are consistent with the statutory definition,
and that the department acted within its discretion to carry
out the purpose of the abuse reporting statutes, namely to
protect children.
II. MOOTNESS
Following briefing on the merits in this matter, the
rule at issue was substantively amended, first in a temporary rule, and subsequently in a permanent rule. With the
enactment of the temporary rule, which altered some of the
specific language petitioners initially challenged, ODHS
moved to dismiss portions of this petition on the basis of
mootness. The motion to dismiss was denied, because the
amended rule was temporary and thus did not moot the proceeding. Following the adoption of the permanent rule, petitioners filed a response to the notice of permanent rulemaking, acknowledging that several portions of their challenge
have been rendered moot by the new permanent rule. The
following sections were affected:
Cite as 353 Or App 198 (2026) 201
• Language in the former version of the rule stated abuse
of a child “includes, but is not limited to” various acts.
OAR 419-230-0170(2) (Nov 1, 2024). Petitioners asserted
that the “not limited to” language did not appear in the
statutory definition of abuse in ORS 419B.005(1)(a) and
therefore made the rule’s definition more open-ended
than the statute and capable of being interpreted to
encompass acts that were not listed in the statute or the
rule. That language was removed in the amendment
to OAR 419-230-0170, and petitioners concede that the
current language now aligns with the statute.
• Petitioners originally asserted that OAR 419-230-0170(2)(c) (Nov 1, 2024), defining neglect in general, and
OAR 419-230-0170(2)(c)(A)(i) (Nov 1, 2024), addressing
inadequate shelter, food, and clothing, improperly omitted the statutory requirement that negligent treatment
of a child must be “likely to endanger the health or
welfare of the child.” ORS 419B.005(1)(a)(F). That language was added to the rule in the most recent amendment, and petitioners acknowledge that, in that regard,
OAR 419-230-0170(2)(c) now aligns with ORS 419B.005
(1)(a)(F).
• Petitioners argued that OAR 419-230-0170(2)(c)(A)(iii)
(Nov 1, 2024), regarding exposure of a child to substances, went beyond the statutory limitations regarding exposure to controlled substances and cannabinoids
in ORS 419B.005(1)(a)(J). Petitioners concede that the
rule has since been amended to mirror the statutory
language.
Petitioners therefore acknowledge that those three portions of their rule challenge have been rendered moot. We
agree. When a petition for review under ORS 183.400(1)
challenges a rule that has lapsed or been replaced, that
rule “is no longer in existence, and our decision would
merely resolve an abstract question without practical
effect.” McKnight v. LCDC, 69 Or App 642, 643, 687 P2d
170 (1984), rev den, 299 Or 522 (1985) (internal quotation
marks omitted).
Petitioners urge us to exercise our discretion under
ORS 14.175 to consider the moot issues. We may review a
moot challenge if we determine that:
202 Oregon Education Assn. v. Dept. of Human Services
“(1) The party had standing to commence the action;
“(2) The act challenged by the party is capable of repetition, or the policy or practice challenged by the party
continues in effect; and
“(3) The challenged policy or practice, or similar acts,
are likely to evade judicial review in the future.”
ORS 14.175. In such circumstances, we then must decide
whether to exercise our discretion to consider a moot issue,
taking into consideration, among other things, “the adversarial nature of the parties’ interests, the effect of the decision on both the parties and others not before the court,
judicial economy, and the extent of the public importance of
the issues presented.” Eastern Oregon Mining Assoc. v. DEQ,
285 Or App 821, 830, 398 P3d 449 (2017), aff’d, 365 Or 313
(2019), cert den, 590 US 992 (2020).
We conclude that the moot portions of petitioners’
challenge do not meet the statutory criteria for review of a
moot issue. Specifically, the issues identified by petitioners do not continue in effect in the current rule, and although
the rule could be amended again, we conclude that the
issues are unlikely to be repeated. See Penn v. Board of
Parole, 365 Or 607, 622, 451 P3d 589 (2019) (“We conclude
that ORS 14.175(2) requires that the act of the public body
that no longer is affecting the plaintiff or complaining party be reasonably susceptible to repetition as to someone.”). In
the Temporary Administrative Order dated December 22,
2025, that temporarily amended the rule, and then again
in the Permanent Administrative Order filed May 28, 2026,
making the amendments permanent, ODHS acknowledged
that the amendments were made in order to align the rule
with ORS 419B.005. In explaining the need for the temporary rules in the Temporary Administrative Order, ODHS
stated:
“[The Office of Training, Investigations and Safety (OTIS)]
needs to immediately amend their abuse determination
rules as described in each Rule Summary to assure certain child abuse definitions do not exceed their authority
and align with ORS 419B.005. By stating the same information, OTIS assures fair and equitable findings following
investigation.”
Cite as 353 Or App 198 (2026) 203
Although it is an abstract and technical possibility that the
rule could be amended back to its previous form, we consider
that incredibly unlikely given that ODHS has now expressly
acknowledged that the amendments were made in order to
align with the statute and to not exceed statutory authority.
Furthermore, were that unlikely event to come to pass, the
amended rule would be very likely to be challenged and not
evade judicial review.
Because the policy challenged by petitioners does
not continue in effect, is not reasonably susceptible to repetition, and is unlikely to evade judicial review, the criteria for review of a moot issue are not met. We therefore do not
reach the portions of petitioners’ challenge that have been
rendered moot by the permanent amendment of the rule.
III. MERITS OF REMAINING PROVISIONS
Having concluded that the parts of the rule that
are no longer in effect are not subject to review under ORS
14.175, we turn to the question of those challenged provisions that remain in effect. Petitioners have asked us to permit them to amend the petition to refer to the current rules,
if we find such an amendment to be necessary. We grant
that request and deem the petition amended to refer to the
current rules. Having deemed the petition amended, in the
interest of judicial economy, we do not require the filing of
an amended petition under the circumstances of this case,
or an updated record, because petitioners do not advance
any procedural challenges to the rules that might require
consideration of a different record than the one already
before us.
Petitioners challenge the validity of four distinct
parts of the abuse definition, which will be discussed in more detail below.3 Petitioners maintain that each portion expands
3
Petitioners do not challenge the entirety of the rule’s definition of abuse. We may review the validity of particular subsections, paragraphs, or subparagraphs of a rule, declaring all or a portion thereof valid or invalid. See Gilliam County v. Dept. of Environmental Quality, 319 Or 251, 254-55, 876 P2d 749 (1994) (declaring a subsection of a rule invalid only insofar as it provided for certain surcharges on waste disposal that had been declared unconstitutional under the federal Commerce Clause, and confirming that the rule was otherwise valid); Lane County v. LCDC, 140 Or App 368, 370-71, 914 P2d 1114 (1996), rev’d on other grounds, 325 Or 569, 942 P2d 278 (1997) (clarifying on reconsideration that only 204 Oregon Education Assn. v. Dept. of Human Services
upon the statutory definition of abuse in ORS 419B.005(1)(a)
to reach conduct that would otherwise not be deemed “abuse”
under the statute, and that ODHS therefore exceeded its
statutory authority in promulgating the rule. The state maintains that the rule is consistent with the statutory definition of abuse. We conclude that the language of the rule exceeds
that of the statute, and ODHS exceeded its statutory authority in enacting the rule. Therefore, the portions of OAR 419-230-0170(2)(c) identified below are held invalid.
A. Applicable Law
Petitioners brought this rule challenge pursuant to
ORS 183.400. We may hold a rule invalid only in limited
circumstances:
“(4) The court shall declare the rule invalid only if it
finds that the rule:
“(a) Violates constitutional provisions;
“(b) Exceeds the statutory authority of the agency; or
“(c) Was adopted without compliance with applicable
rulemaking procedures.”
ORS 183.400(4). Challenges to a rule’s validity under ORS
183.400 are “colloquially called ‘facial challenges,’ although that term is not used in the statute itself.” Nay v. Dept.
of Human Services, 360 Or 668, 679, 385 P3d 1001 (2016)
(internal citation omitted).
In analyzing the legality of an action taken by officials under delegated authority—here, the agency’s adoption
of the rule—we consider (1) “whether the action fell within
the reach of their authority,” i.e., within their jurisdiction; (2) “whether the action was taken by procedures prescribed by
statute or regulation”; and (3) “whether the substance of the
action, though within the scope of the agency’s or official’s
general authority, departed from a legal standard expressed
or implied in the particular law being administered,
certain designated portions of the challenged rules were invalid; and clarifying that the rules were only invalid to the extent they conflicted with a statute that only applied to certain counties, and that the opinion did not address the validity of the rules as applied to other counties not subject to the statute). We therefore only address the portions of OAR 419-230-0170(2)(c) specifically identified in petitioners’ challenge.
Cite as 353 Or App 198 (2026) 205
or contravened some other applicable statute.” Planned
Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 565,
687 P2d 785 (1984).4 Those questions are designed to determine whether the adoption of the rule at issue “in fact was
authorized by the state’s or local government’s politically
accountable policy makers.” Id. The ultimate question is
“whether the department exceeded its statutory authority,
and more specifically whether the [challenged rules] depart
from a legal standard expressed or implied in the particular law being administered.” Nay, 360 Or at 695 (internal
citations omitted). “[I]n determining the scope of an agency’s statutory authority, we seek to discern the legislature’s intent by examining the text and context of the relevant
statutes and, if useful to the analysis, pertinent legislative history.” Smith v. Board of Parole, 272 Or App 493, 496, 356
P3d 158 (2015) (internal quotation marks omitted).
B. Analysis
We thus begin with ODHS’s statutory authority.
Pursuant to ORS 419B.019(6), ODHS has the authority to
adopt rules necessary for the administration of investigations into allegations of abuse occurring in the school setting. As noted above, ORS 419B.019 is subject to the ORS
419B.005(1)(a) definition of abuse. ORS 419B.005 (definitions apply to “ORS 419B.005 to 419B.050, unless the context requires otherwise”). Nothing in ORS 419B.019 delegates the authority to ODHS to redefine what constitutes
abuse. Notably, another rule in the same division as the rule
at issue in the challenge, OAR 419-230-0110(1), states that
abuse has the same meaning as defined in ORS 419B.005,
and cross-references the definition in the rule at issue here. Indeed, ODHS does not assert that it has the authority to
expand upon the statutory definition; rather, it maintains
that the definition of abuse set forth in OAR 419-230-0170(2)
is consistent with ORS 419B.005(1)(a), and ODHS asserts
that the rule simply explains how the statutory definition
will be applied in the school investigation setting.
We agree with the parties that ODHS’s authority
does not include redefining what constitutes abuse. ORS
4
Petitioners have not raised any challenge to ODHS’s rulemaking procedures.
206 Oregon Education Assn. v. Dept. of Human Services
419B.005 clearly applies to investigations of abuse in schools, and the authority in ORS 419B.019(6) to adopt rules needed
to carry out such investigations does not include the authority to expand the conduct that is covered as abuse. Thus
framed, the only dispute before us is whether the challenged
provisions of OAR 419-230-0170(2) are in fact inconsistent
with the text of ORS 419B.005(1)(a).
As relevant to the parties’ arguments and the provisions challenged here, ORS 419B.005(1)(a) states:
“Abuse means:
“* * * * *
“(B) Any mental injury to a child, which shall include
only cruel or unconscionable acts or statements made, or
threatened to be made, to a child if the acts, statements or
threats result in severe harm to the child’s psychological,
cognitive, emotional or social well-being and functioning.
“* * * * *
“(F) Negligent treatment or maltreatment of a child,
including but not limited to the failure to provide adequate food, clothing, shelter or medical care that is likely
to endanger the health or welfare of the child.”
ORS 419B.005(1)(a).5
Petitioners challenge the following portions of OAR
419-230-0170(2) as inconsistent with ORS 419B.005(1)(a):
• OAR 419-230-0170(2)(c) states that “neglect,” as a form
of abuse, includes “failure, through action or omission,
to provide and maintain adequate food, clothing, shelter, medical care, supervision, protection, or nurturing
that is likely to endanger the health or welfare of the
child.” (Emphasis added.) Petitioners maintain that
the italicized portion of the rule is invalid because it
expands on the statutory definition of negligent treatment, which does not include inadequate supervision,
protection, or nurturing.
5
The remaining portions of the definition of abuse cover assault and nonaccidental physical injury of a child; sexual assault, abuse, or exploitation; threatened harm; buying or selling a child; exposure to methamphetamine manufacturing or other unlawful exposure to controlled substances; restraint or seclusion of a child in violation of other statutes; and the infliction of corporal punishment. ORS 419B.005(1)(a)(A) - (L). The specific text of those subparagraphs is not relevant to our discussion.
Cite as 353 Or App 198 (2026) 207
• OAR 419-230-0170(2)(c)(C) defines a specific example of
neglect: “Lack of supervision and protection, including
failure to provide supervision and protection appropriate to the child’s age, mental ability, and physical condition.” Petitioners assert that that specific example of
neglect exceeds the statutory definition of neglect.
• OAR 419-230-0170(2)(c)(D) defines a specific example of
neglect: “Desertion, which includes the respondent leaving the child with another person and failing to reclaim
the child, or respondent failure to provide information
about their whereabouts, providing false information
about their whereabouts, or failing to establish a legal
guardian or custodian for the child.” Petitioners argue
that there is no corollary in the ORS 419B.005(1)(a) definition of abuse.
• OAR 419-230-0170(2)(c)(E) defines a specific example of
neglect: “Psychological neglect, which includes serious
inattention to the child’s need for affection, support,
nurturing, or emotional development. The respondent’s
behavior must be related to the observable and severe
harm of the child’s psychological, cognitive, emotional,
or social well-being and functioning.” Petitioners assert
that there is no counterpart in ORS 419B.005(1)(a), and
that the subsection of the rule covers more conduct than
the statutory subtype of abuse called “mental injury”
that is expressly limited to cruel or unconscionable acts
that result in severe harm to a child’s psychological,
cognitive, emotional, or social well-being.
Petitioners argue that the identified sections go
beyond the conduct that is identified as “abuse” in the statute, and meaningfully alter and expand on the definition
in a way that departs from legislative intent. Petitioners
acknowledge that ORS 419B.005(1)(a)(F) regarding negligent treatment or maltreatment of a child contains an
“including but not limited to” clause but argue that the
given examples relate to physical basic needs, and that any
additional conduct covered by that subparagraph must be
relatively similar to the listed items in order to constitute
negligent treatment or maltreatment, under the principle
of ejusdem generis. Petitioners maintain that the “including but not limited to” language does not give ODHS carte
208 Oregon Education Assn. v. Dept. of Human Services
blanche to create new categories of abuse by neglect that are
unrelated to the statutory list.
ODHS maintains that the rule’s explanation and
examples of what constitutes neglect are all consistent with
the statutory definition of abuse as including negligent treatment or maltreatment of a child, given the “including but
not limited to” clause. ODHS argues that the statutory text
of “the failure to provide adequate food, clothing, shelter or medical care” is a single example of negligent treatment or
maltreatment, and that the canon of ejusdem generis does not
apply. It asserts that the rule permissibly provides multiple
additional examples of negligent treatment or maltreatment
that are consistent with legislative history expanding the
concept of neglect to include acts that result in a negative
impact on a child’s emotional or social well-being, and that
neglect is not limited to physical needs.
We are unconvinced by ODHS’s arguments and
agree with petitioners that the rule improperly expands
on the definition of abuse in ORS 419B.005(1)(a). We begin
with the text and context of the statute. State v. Gaines,
346 Or 160, 169-71, 206 P3d 1042 (2009) (noting that statutory interpretation requires examination of text, context,
and any relevant legislative history). ORS 419B.005(1)(a)
(F) gives four distinct examples of conduct that constitutes
negligent treatment or maltreatment of a child: the failure
to provide adequate food, clothing, shelter, or medical care.
The examples inform our interpretation of what the legislature intended to be included in “negligent treatment or
maltreatment.” As the Supreme Court has noted, we consider not only the dictionary definition of terms, “but also
the context in which those terms are used. When, as here,
the legislature uses a general term in a statute and also
provides specific examples, those specific examples provide
useful context for interpreting the general term.” Schmidt v.
Mt. Angel Abbey, 347 Or 389, 402, 223 P3d 399 (2009).
We reject ODHS’s contention that the list constitutes a single example of something that would qualify as
neglect. Each item is a separate basic need, the list is separated by the word “or,” and, as petitioners point out, an
individual could fail to meet one of those needs while still
Cite as 353 Or App 198 (2026) 209
providing for the others. In light of the examples given,
though non-exhaustive, we consider “negligent treatment
or maltreatment of a child” to be directed toward the body
of actions that relate to a child’s basic needs, particularly
physical and medical. Inadequate supervision, protection,
or nurturing, desertion, and psychological neglect do not
appear to fall into that category.
We further consider legislative history relating to
the statutory definition of abuse, which supports our interpretation. Gaines, 346 Or at 170-71. Prior to 1985, the definition of abuse included: “Neglect which leads to physical
harm.”6 Former ORS 418.740(1)(b) (1983), amended by Or
Laws 1985, ch 723, § 1a; Or Laws 1989, ch 65, § 1; Or Laws
1989, ch 721, §§ 9, 51; Or Laws 1991, ch 386, § 11; Or Laws
1991, ch 544, § 1; repealed by Or Laws 1993, ch 546, § 141.
In a comprehensive bill relating to child abuse reporting in
1985, House Bill (HB) 2160, the definition was amended in
multiple ways, including by removing the former section on
neglect and adding the following sections to the definition of abuse:
“(b) Any mental injury to a child, which shall include
only observable and substantial impairment of the child’s
mental or psychological ability to function caused by cruelty to the child, with due regard to the culture of the child.
“* * * * *
“(e) Negligent treatment or maltreatment of a child,
including but not limited to the failure to provide adequate
food, clothing, shelter or medical care.”
Or Laws 1985, ch 723, § 1a. The Senate Judiciary Committee
had an extensive conversation regarding those two provisions, which demonstrated that the “mental injury” provision was intended to address conduct related to emotional
and psychological abuse and neglect, and that “negligent treatment or maltreatment” related to the minimum
basic requirements for life. There was significant emphasis placed on how severe emotional abuse needed to be in
order to constitute abuse that was subject to mandatory
6
The paragraph contained an exception for children who were under treatment solely through prayer in accordance with tenets of a religious denomination. That exception is not applicable to our current discussion. 210 Oregon Education Assn. v. Dept. of Human Services
reporting, including outward signs of the impact on the
child and causation between the cruelty and the impact on
the child. Tape Recording, Senate Judiciary Committee, HB
2160, June 6, 1985, Tape 174, Side B, Tape 175, Side B (discussion of committee members); see also Exhibit I, Senate
Judiciary Committee, HB 2160, June 4, 1985 (statement of
Jess Armas, Assistant Administrator, Children’s Services
Division).
The 1985 abuse definition was repealed and the text
was re-enacted as ORS 419B.005 in 1993, Or Laws 1993,
ch 546, §§ 12, 141, and has since been amended to its current form. As noted above, it now states that abuse includes:
“Any mental injury to a child, which shall include only
cruel or unconscionable acts or statements made, or threatened to be made, to a child if the acts, statements or threats
result in severe harm to the child’s psychological, cognitive,
emotional or social well-being and functioning.”
ORS 419B.005(1)(a)(B). Based on the history of the provisions, we conclude that the mental injury section is intended
to cover emotional and psychological abuse, and the negligent treatment or maltreatment section is intended to reach
deprivations relating to minimum basic needs.
In light of the text, context, and legislative history
discussed, we reject ODHS’s argument that the various
examples of neglect challenged in this petition are appropriate explanations of what constitutes negligent treatment
or maltreatment under the “including but not limited to”
clause of ORS 419B.005(1)(a)(F). There are no other corresponding portions of the statutory definition of abuse that
cover lack of supervision and protection, desertion, or psychological neglect as those acts are described in the rule.
Furthermore, with respect to OAR 419-230-0170(2)(c)(E),
addressing psychological neglect, petitioners argue that that
portion is inconsistent with the statutory provision addressing mental injury, because the rule omits any requirement
that the acts be cruel or unconscionable. We agree, and note
that the state does not argue that that section of the rule
aligns with the mental injury portion of the statute, and
only argues that it is an appropriate explanation of what
Cite as 353 Or App 198 (2026) 211
constitutes negligent treatment or maltreatment, which we
have rejected.
ODHS therefore exceeded its authority in adopting a definition of abuse that is inconsistent with the controlling statutory definition. This situation is analogous to
that in Nay. In that case, the legislature had defined the
term “estate” as it related to property that could be recovered to reimburse the state for Medicaid expenses upon an
individual’s death, and authorized recovery from certain
other transfers; ODHS had then adopted rules that allowed
the department to also recover from other kinds of property
transfers based on an unrelated set of legal criteria. Nay,
360 Or at 694. The Supreme Court noted that the legislature had not delegated the authority to ODHS to determine which property transfers could be set aside, and concluded that “[b]ecause the amended rules departed from a
legal standard expressed or implied in the particular law
being administered, the department exceeded its authority
in adopting them, and they are invalid under ORS 183.400
(4)(b).” Id. (internal quotation marks and citation omitted).
The same is true in the current matter. Because the challenged sections of the rule at issue here departed from the
statutory definition of abuse in ORS 419B.005(1)(a), they are
invalid.7
Portion of OAR 419-230-0170(2)(c) stating “supervision, protection, or nurturing” held invalid; OAR 419-230-0170(2)(c)(C) held invalid; OAR 419-230-0170(2)(c)(D) held
invalid; OAR 419-230-0170(2)(c)(E) held invalid.
7
Of course, the legislature is free to expand the definition of abuse if it wants to provide a definition as broad as that proposed by ODHS. We conclude only that, to date, it has not done so.