OAR 582-020-0035: Mediation and Hearing Requests

(1) A client who is dissatisfied with a Program action may request mediation, a hearing, or both. The client may also simultaneously request informal dispute resolution. (2) The client shall use the Program-approved Mediation and Hearing Request form to request mediation, a hearing, or both. (3) To be timely a mediation, hearing or both requests shall: (a) Be received by the Program's Dispute Resolution Coordinator within 60 calendar days following the date of the Program's written Notice of Proposed Action or alleged Program delay in making a decision, except as otherwise provided in this rule. (b) Clients who are notified that the Program is unable to locate or contact the individual must submit the request within 30 calendar days following the date of the Program's written Notice of Proposed Action. (c) The Program shall withdraw the Notice of Proposed Action if it successfully contacts the client during the 30-day Notice of Proposed Action period, if the only justification for file closure is "unable to locate or contact the individual." (d) The client's hearing request is also considered timely if the Program's Dispute Resolution Coordinator: (A) Receives a timely request for mediation under section (3)(a-b) of this rule; and (B) Receives a completed request for hearing within 60 calendar days following the date of the Program's written Notice of Proposed Action declining to participate in or ending mediation under OAR 582-020-0045, or (C) Receives a completed request for hearing within 60 calendar days following the date of the Program's written Notice of Proposed Action declining to participate in or ending mediation under OAR 582-020-0045, unless the underlying basis of the Notice of Proposed Action is that the office is unable to locate or contact the individual, or (D) Receives a completed request for hearing within 30 calendar days following the date of the Program's written Notice of Proposed Action declining to participate in or ending mediation under OAR 582-020-0045, and the underlying basis of the Notice of Proposed Action is that the office is unable to locate or contact the individual. (4) Process for handling untimely mediation or hearing request: (a) If the request for mediation or hearing is not timely under section (3) of this rule, the Program may issue an order dismissing the request accordingly. (b) If the client believes that there is good cause for failure to timely request mediation or hearing, the client may send a written request to the Program's Dispute Resolution Coordinator requesting that the Program consider the client's untimely request. The client's request shall be supported with a written statement explaining why the request was late and why this qualifies as good cause. The Program shall review this information and determine whether the client demonstrated that they had good cause for the untimely request. (A) The Program may conduct further inquiry, including requesting supporting documentation from the client. The client must cooperate with this inquiry and within the timeframes set by the Program. (B) If the Program finds that the client has good cause for the untimely request, the Program may accept the request as timely and proceed as if the request was timely. (5) If there is a factual dispute about whether there is good cause for an untimely filing, the Program shall refer the matter to the Impartial Hearing Officer for a hearing to determine whether: (a) The hearing request was received timely; (b) The client received the Notice of Proposed Action; and (c) The information included in the client's statement demonstrates good cause. (6) The following are non-hearable issues: (a) A client does not have a right to mediation or a hearing if the client fails to allege that they are dissatisfied by a Program action, as that term is defined in OAR 582-020-0010(1) or the same action has already been resolved through the dispute resolution process and no further appeal rights are available under these rules. (b) If the Program determines that the client's mediation or hearing request does not identify a Program action that gives the client the right to mediation or a hearing, the Program shall contact the client or client's representative in writing to identify the deficiencies in the request and to give the client the opportunity to provide a corrected mediation or hearing request within 14 calendar days. (c) In order for the corrected mediation or hearing request under subsection (b) of this rule to be considered timely, the Dispute Resolution Coordinator shall receive a complete request identifying a hearable issue within: (A) The original deadline to request mediation or a hearing as described in section (3) of this rule; or (B) 14 calendar days following the date the Program notified the client or client's representative of the deficiencies in the Notice of Proposed Action. (d) If the client submits a corrected request identifying a hearable issue within the timeframes described in section (5)(c), the Program shall use the date of the corrected request, not the original request, for purposes of calculating the 60 -day deadline to hold the mediation or hearing as described in section (10) of this rule. (e) If the client does not submit a corrected request identifying a hearable issue that gives the client the right to mediation or a hearing under these rules, the Program may: (A) Decline to participate in mediation; (B) Enter an order to that effect; or (C) Refer the matter to an Impartial Hearing Officer for a hearing on the question of whether the client has a right to an impartial due process hearing. (7) When the Program has issued a Notice of Proposed Action and the client fails to request mediation or a hearing within required timeframes, the Program's Notice of Proposed Action is final, and the Program shall issue no further order. The Program file, including all materials submitted by a party, shall be considered the record of the matter, and the record shall constitute a prima facie case supporting the Program's action. The only exception is if the client demonstrates that there was good cause, under section (4) of this rule, for the untimely request. (8) After the client requests a hearing, the Program or the Impartial Hearing Officer shall dismiss the request for hearing, and the Program's Notice of Proposed Action becomes the final order in the case, as if the client never requested a hearing, if: (a) The client withdraws the request for hearing; (b) The client abandons the request for hearing by failing to respond to the Program's or Impartial Hearing Officer's attempts to schedule a prehearing conference, hearing or other hearing-related proceeding; or (c) The client was notified about the scheduled prehearing conference, hearing, or other hearing related proceeding and: (A) The client fails to appear at the prehearing conference, hearing or other hearing-related proceeding without good cause; (B) The client informs the Program or Impartial Hearing Officer that the client will not appear at the prehearing conference, hearing or other hearing-related proceeding. (9) If the client fails to appear at the scheduled prehearing conference, hearing or other hearing-related proceeding or appears to abandon the hearing request and before dismissing the request for hearing, the Impartial Hearing Officer finds that the client had good cause, the Impartial Hearing Officer may not dismiss the request for hearing under section (8) of this rule. In this case, the Impartial Hearing Officer shall schedule a new prehearing conference, hearing or other hearing - related proceeding. If the reasons for the client's failure to appear are in dispute, the Impartial Hearing Officer shall schedule a hearing on the reasons for the client's failure to appear. (10) The client may withdraw a request for hearing at any time before the Impartial Hearing Officer issues an order. (a) If the request for hearing is withdrawn before the case is assigned to an Impartial Hearing Officer, the Program shall issue the order dismissing the request for hearing. (b) After the case is assigned to an Impartial Hearing Officer, the Impartial Hearing Officer shall issue the order dismissing the request for hearing. (11) The hearing or mediation shall be held within 60 calendar days from the date the Program's Dispute Resolution Coordinator received the client's timely request for hearing or mediation, unless: (a) Informal dispute resolution successfully resolves the matter within the 60-day deadline; (b) A final mediation agreement is agreed to and signed by the parties within the 60-day deadline; (c) The hearing request was made pursuant to section (3)(b) of this rule, and the hearing occurs within 60 days following the date of the hearing request; or (d) The parties agree to an extension of the deadline for a specific period. Extensions of the timeline shall be documented in writing. (12) For purposes of these rules when a rule describes: (a) A deadline in calendar days and the last calendar day of a specified time period falls on a Saturday, Sunday, a legal holiday or the Program's Central Administrative Office is closed, the deadline shall be extended until the next working day. (b) All requests or other documents must be sent to the Program's Dispute Resolution Coordinator at the Program's Central Administrative Office in Salem. (13) The Program shall offer assistance to help clients request mediation or a hearing and shall inform them that they may also request the assistance of the Client Assistance Program in making these requests.