OREGON EDUCATION ASSOCIATION v. DEPARTMENT OF HUMAN SERVICES (2026)

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 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:

• 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:

“(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.”

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 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, 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 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.

• 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 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 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 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 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.

FOOTNOTES

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.

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 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.

4.   Petitioners have not raised any challenge to ODHS's rulemaking procedures.

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.

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.

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.

SHORR, P. J.