Or. Admin. R. 411-318-0025 - Contested Case Hearings for Reductions, Suspensions, Terminations, or Denials
(1) An
individual or the representative of the individual may request a hearing, as
provided in ORS chapter 183, if the individual experiences a denial, reduction,
suspension, or termination of a developmental disabilities service or in
instances when a timely Notification of Planned Action has not been provided.
(2) HEARING REQUESTS.
(a) The request for a hearing must be made
within 90 calendar days from the date on a Notification of Planned Action.
(b) The request for a hearing may
be made orally, in writing, or by completing the DD Administrative Hearing
Request (form 0443DD).
(A) ORAL HEARING
REQUESTS.
(i) The individual or the
representative of the individual may orally express a desire for a hearing to
the local program or Department staff.
(ii) Upon receipt of an oral request for a
hearing, the local program or Department staff must complete the DD
Administrative Hearing Request and submit the form to the Central Office of the
Department within three business days of receiving the request for a hearing. A
copy of the form must be mailed to the individual and the representative of the
individual.
(B) WRITTEN
HEARING REQUESTS.
(i) The individual or the
representative of the individual may provide a written request for a hearing to
the local program or Department staff.
(ii) Upon receipt of a written request for a
hearing, the local program or Department staff must complete the DD
Administrative Hearing Request and submit the form to the Central Office of the
Department within three business days of receiving the request for a hearing. A
copy of the form must be mailed to the individual and the representative of the
individual.
(c) The Department processes late hearing
requests as described in OAR 411-001-0520.
(3) CONTINUING SERVICES PENDING A FINAL
ORDER.
(a) In the event of a reduction,
suspension, or termination of a developmental disabilities service, a claimant
or the representative of the claimant may request continuing services for the
claimant during the hearing process. To receive continuing services, a claimant
or the representative of the claimant must either:
(A) Request a hearing before the effective
date of action; or
(B) Within 10
business days after the effective date of action identified on the Notification
of Planned Action, request a hearing and continuing services.
(b) The Department grants a late
request for continuing services when the Department determines a claimant or
the representative of a claimant has good cause for the late request.
(c) The claimant may be required
to pay back any benefits received during the hearing process if the Final Order
is not in the favor of the claimant.
(4) EXPEDITED HEARINGS.
(a) An individual or the individual's
representative may request an expedited hearing when:
(A) The time otherwise permitted for a
hearing may jeopardize the individual's life, health, or ability to attain,
maintain, or regain maximum function; or
(B) An individual receiving a notice of exit
from a residential setting is not allowed to remain in the setting.
(b) An expedited hearing must be
held within five business days of the Office of Administrative Hearings
receiving a request for an expedited hearing that meets the criteria of
subsection (A) or (B) of section (a).
(c) A written decision shall be issued within
three business days after the hearing record is closed.
(5) INFORMAL CONFERENCE.
(a) The Department staff, Department
representative, and the claimant or the representative of the claimant may have
an informal conference, without the presence of an administrative law judge, to
discuss the action that is the subject of the hearing request. An informal
conference may also be used to:
(A) Provide
an opportunity for the Department and the claimant or the representative of the
claimant to settle the matter;
(B)
Ensure the claimant or the representative of the claimant understands the
reason for the action that is the subject of the hearing request;
(C) Give the claimant or representative of
the claimant an opportunity to review the information that is the basis for the
action that is the subject of the hearing request;
(D) Inform the claimant or the representative
of the claimant of the rules that serve as the basis for the action that is the
subject of the hearing request;
(E) Give the Department and the claimant or
the representative of the claimant the chance to correct any misunderstanding
of the facts;
(F) Give the
claimant or the representative of the claimant an opportunity to provide
additional information to the Department; and
(G) Give the Department an opportunity to
review the action that is the subject of the hearing request.
(b) At any time prior to the
hearing date, the claimant or the representative of the claimant may request an
additional informal conference with a Department representative. At the
discretion of the Department representative, the Department representative may
grant an additional informal conference to facilitate the hearing process.
(c) The Department may provide a
claimant the reprieve sought at any time before a Final Order is issued.
(6) REPRESENTATION.
(a) A representative may be chosen by a
claimant to represent the interests of the claimant during an informal
conference and hearing.
(b)
Employees for the Department, CDDP, and Brokerage are authorized to appear as a
witness on behalf of the Department during an informal conference and hearing.
(7) HEARINGS NOT OPEN
TO THE PUBLIC. Non-participants may attend a hearing only with the consent of
the claimant or the representative of the claimant and the Department
representative.
(8) WITHDRAWAL OF
HEARING REQUEST. A claimant or the representative of a claimant may withdraw a
hearing request at any time prior to the issuance of a Final Order. The
withdrawal is effective on the date the request for the withdrawal is received
by OAH. The Department shall issue an order of withdrawal to the last known
address of the claimant. The claimant or the representative of the claimant may
cancel the withdrawal up to 10 business days following the date the order of
withdrawal is issued.
(9)
DISMISSAL FOR FAILURE TO APPEAR. A hearing request is dismissed by order when
neither the claimant nor the representative of the claimant appears by phone or
in person at the hearing. The dismissal order is effective on the date
scheduled for the hearing. The Department may cancel the dismissal order on
request of the claimant or the representative of the claimant upon a showing
that the claimant or the representative of the claimant has good cause for not
attending the hearing or requesting a postponement.
(10) When the Department refers a hearing
under these rules to OAH, the Department shall indicate on the referral:
(a) Whether the Department is authorizing OAH
to issue a Final Order, a proposed order, or a proposed and Final Order; and
(b) If the Department is
establishing an earlier deadline for written exceptions and argument because
the hearing request is being referred for an expedited hearing.
(11) FINAL ORDER. A Final Order is
the final action expressed in writing by OAH as described in OAR 137-003-0665.
A Final Order is issued within 90 calendar days of the request for a hearing or
within 90 calendar days from the receipt of a proposed order or a proposed and
Final Order from OAH.
(12)
PROPOSED ORDERS. The Department issues a Final Order after OAH issues a
proposed order unless the Department authorizes OAH to issue the Final Order
under OAR 137-003-0655.
(13)
PROPOSED AND FINAL ORDERS. A proposed and Final Order becomes a Final Order 21
calendar days after OAH issues a proposed and Final Order unless:
(a) The claimant or the representative of the
claimant has filed written exception and written argument as described in
section (14) of this rule;
(b) The
Department has issued a revised order; or
(c) The Department has notified OAH and the
claimant or the representative of the claimant that the Department shall issue
the Final Order.
(14)
EXCEPTIONS.
(a) The claimant or the
representative of the claimant may file a written exception and written
argument to be considered by the Department once OAH has issued either a
proposed order or a proposed and Final Order. The written exception and written
argument must be postmarked to the location indicated in the OAH order no later
than 20 calendar days after service of the proposed order or proposed and Final
Order unless an earlier deadline has been established pursuant to section
(10)(b) of this rule.
(b) Unless
the Department receives a timely written exception and written argument as
described above, the Department shall issue the Final Order unless the
Department authorizes OAH to issue the Final Order in compliance with OAR
137-003-0655.
(15)
PETITION OF FINAL ORDER. A claimant or the representative of the claimant may
file a petition for reconsideration or rehearing up to 60 calendar days after a
Final Order is served. The petition must be filed with the entity that issued
the Final Order unless stated otherwise on the Final Order.
Notes
Statutory/Other Authority: ORS 409.050 & 427.107
Statutes/Other Implemented: ORS 183.411-183.471, 409.010, 427.107 & 427.109
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