OAR 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.