OAR 411-318-0025: Contested Case Hearings for Reductions, Suspensions, Terminations, or Denials

(1) An individual or an individual's representative 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) A 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) An individual or the representative of an 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 and a copy of the Notification of Planned Action, if applicable, to eXPRS no later than one business day of receiving the request for a hearing. A copy of the DD Administrative Hearing Request must be provided to the individual and the individual's representative. (B) WRITTEN HEARING REQUESTS. (i) An individual or an individual's representative 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 and a copy of the Notification of Planned Action, if applicable, to eXPRS no later than one business day of receiving the request for a hearing. A copy of the DD Administrative Hearing Request must be provided to the individual and the individual's representative. (c) The Department processes late hearing requests as described in OAR 411-001-0520. (3) If a Notification of Planned Action identifies records used in a decision that is the subject of a hearing request, the records must be submitted to the Department within three business days from the date of the hearing request. (4) 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 claimant's representative may request continuing services for the claimant during the hearing process. To receive continuing services, a claimant or the claimant's representative 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 shall grant a late request for continuing services when the Department determines a claimant or the claimant's representative has good cause for the late request. (c) A claimant may be required to pay back any benefits received during the hearing process if the Final Order is not in the claimant's favor. (5) 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 from the date the Office of Administrative Hearings (OAH) receives the 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. (6) INFORMAL CONFERENCE. (a) The Department staff, Department hearing representative, and the claimant or the claimant's representative may have an informal conference, without the presence of an administrative law judge, to discuss the action that is the subject of a hearing request. An informal conference may also be used to: (A) Provide an opportunity for the Department and the claimant or the claimant's representative to settle the matter. (B) Ensure the claimant or the claimant's representative understands the reason for the action that is the subject of the hearing request. (C) Give the claimant or the claimant's representative 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 claimant's representative 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 claimant's representative the chance to correct any misunderstanding of the facts. (F) Give the claimant or the claimant's representative an opportunity to provide additional information to the Department. (G) Give the Department an opportunity to review the action that is the subject of the hearing request with the claimant or the claimant's representative. (b) At any time prior to the hearing date, the claimant or the claimant's representative may request an additional informal conference with a Department hearing representative. A Department hearing representative may grant, at their discretion, 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. (7) 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 the Department's behalf during an informal conference and hearing. (8) HEARINGS NOT OPEN TO THE PUBLIC. Non-participants may attend a hearing only with the consent of the claimant or the claimant's representative and the Department hearing representative. (9) WITHDRAWAL OF HEARING REQUEST. A claimant or the claimant's representative 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 claimant's representative may cancel the withdrawal up to 10 business days following the date the order of withdrawal is issued. (10) DISMISSAL FOR FAILURE TO APPEAR. A hearing request is dismissed by order when neither the claimant nor the claimant's representative 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 claimant's representative upon a showing that the claimant or the claimant's representative has good cause for not attending the hearing or requesting a postponement. (11) 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. (12) FINAL ORDER. A Final Order is the final action expressed in writing by OAH or the Department as described in OAR 137-003-0665. A Final Order is issued: (a) Within 90 calendar days from the request for a hearing; or (b) Within 90 calendar days from the receipt of a Proposed Order or a Proposed and Final Order from OAH. (13) PROPOSED ORDERS. After OAH issues a Proposed Order, the Department shall issue a Final Order unless the Department authorizes OAH to issue the Final Order as described in OAR 137-003-0655 and section (11)(a) of this rule. (14) PROPOSED AND FINAL ORDERS. A Proposed and Final Order becomes a Final Order 21 calendar days after OAH issues the Proposed and Final Order unless: (a) The claimant or the claimant's representative has filed written exception and written argument as described in section (15) of this rule; (b) The Department has issued a revised order; or (c) The Department has notified OAH and the claimant or the claimant's representative that the Department shall issue the Final Order. (15) EXCEPTIONS. (a) Once OAH has issued either a Proposed Order or a Proposed and Final Order, a claimant or a claimant's representative may file a written exception and written argument for the Department to consider. 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 according to section (11)(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 and section (11)(a) of this rule. (16) PETITION OF FINAL ORDER. A claimant or a claimant's representative 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.