Or. Admin. Code § 419-050-0000 - Requesting a Contested Case Hearing of Substantiated Abuse Determination
(1) This rule
applies to contested case hearings on substantiated adult abuse findings made
by the Department's Office of Training, Investigation and Safety (OTIS) or the
Department designees (Community Mental Health Programs or Community
Developmental Disabilities Programs) under OAR chapter 419, divisions 100, 110
and 120.
(2) Contested case
proceedings under this rule are conducted in accordance with the Attorney
General's model rules in OAR chapter 137, division 003, except to the extent
that OAR chapter 419, divisions 100, 110 and 120 are permitted to and provide
for different procedures.
(3) A
contested case hearing under this rule is not open to the public and is closed
to nonparticipants, except nonparticipants may attend subject to the consent of
the parties and the Department, and must adhere to applicable confidentiality
laws.
(4) An Accused Person or
Accused Provider (AP) who receives a Notice of Abuse Determination under OAR
chapter 419, divisions 100, 110 and 120 on or after March 1, 2019 may challenge
that notice by filing a written, timely request for a contested case hearing.
The request must be postmarked to the Department of Human Services, Office of
Training, Investigations and Safety, 4600 25th Ave, NE, Suite 150, Salem,
Oregon 97301 within 30 calendar days of the date of the Notice of Abuse
Determination.
(5) The Department
may dismiss a request for hearing as untimely if the AP's written explanation
for missing the hearing request deadline does not meet the criteria in OAR
137-003-0528(2) and
(3) for either a hearing on the merits or a
limited contested case hearing about the reasons for missing the
deadline.
(6) An AP or their legal
representative may withdraw a request for hearing at any time before a final
order has been issued in the contested case.
(a) The Department or the Office of
Administrative Hearings (OAH) will send an order confirming the withdrawal of a
hearing request to the last known address of the AP.
(b) The AP or their legal representative may
cancel the withdrawal if a written cancellation of the withdrawal is sent to
the Department hearing representative and postmarked no later than 10 business
days following the date of the order confirming the withdrawal.
(c) A late cancellation of a withdrawal may
be considered if the written cancellation of the withdrawal is sent the
Department hearing representative and postmarked within the deadline set out in
OAR 137-003-0675(1)
following the date of the order confirming the withdrawal.
(d) The Department will allow the late
cancellation of a withdrawal filed within the deadline set out in OAR
137-003-0675(1)
if the deadline to cancel the withdrawal was missed due to circumstances beyond
the control of the AP.
(7) The Department will refer to the Office
of Administrative Hearings (OAH) the issue of allowing the late cancellation of
a withdrawal filed within the deadline set out in OAR
137-003-0675(1)
if there is a factual dispute about whether the deadline to cancel the
withdrawal was missed due to circumstances beyond the control of the
AP.
(8) An order dismissing a
hearing request is issued when the neither the claimant or the claimant's
representative appear at the time and place specified for the hearing. The
Department may reconsider and cancel the dismissal under OAR
137-003-0675 after a timely
written request of the claimant on a showing that the claimant was unable to
attend the hearing and unable to request a postponement from OAH for reasons
beyond claimant's reasonable control. The Department may refer the
reconsideration decision to OAH.
(9) When the Department refers a contested
case under this rule to the Office of Administrative Hearings (OAH), the
Department indicates on the referral whether the Department is authorizing a
proposed order, a proposed and final order (OAR
137-003-0645(4)),
or a final order.
(a) When the Department
authorizes either a proposed order or a proposed and final order, the AP may
file written exceptions and written argument to be considered by the
Department. The exceptions and argument must be postmarked or received at the
location indicated in the OAH order not later than the 20th calendar day after
service of the proposed order or proposed and final order.
(b) When the Department authorizes proposed
and final orders, if the AP does not submit timely exceptions or argument
following a proposed and final order, the proposed and final order becomes a
final order on the 21st calendar day after service of the proposed and final
order unless the Department has issued a revised order or has notified the AP
and OAH that the Department will issue the final order. When the Department
receives timely written exceptions or argument, the Department issues the final
order, unless the Department requests that OAH issue the final order under OAR
137-003-0655.
(c) If in a contested case hearing the Office
of Administrative Hearings (OAH) is authorized to issue a final order on behalf
of the Department, the Department may issue the final order in the case of
default.
(10) The
Department has adopted the following exceptions to the Attorney General's model
rules due to caseload volume and because the model discovery procedures would
unduly complicate or interfere with the hearing process:
(a) Upon the request of the party or AP, the
Department provides work contact information -- telephone number and address --
for any Department employees expected to testify at the hearing as witnesses,
except rebuttal witnesses.
(b)
Except as provided in subsection (a) of the section, the Department and any
party or AP in the contested case are not required to provide the telephone
numbers and addresses of witnesses.
Notes
Statutory/Other Authority: ORS 183.341 & 409.050
Statutes/Other Implemented: ORS 183.411-183.471, 430.768, 430.731, 430.735-430.765 & 409.010
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