OAR 943-001-0009: Lay Representation in Contested Case Hearings

(1) Contested case hearings are conducted in accordance with the Attorney General’s model rules at OAR 137-003-0501 to 0700, except as otherwise specified in the program rules. Subject to the approval of the Attorney General, an officer or employee of the Oregon Health Authority (Authority) is authorized to appear on behalf of the agency in the following types of hearings conducted by the Authority: (a) Eligibility and termination determinations related to medical assistance coverage. (b) Suspension, reduction, or denial of medical assistance services, prior authorization, or medical management decisions. (c) Enrollment or disenrollment decisions related to managed care plans. (d) Eligibility for or termination of health insurance premium assistance, or determination of subsidy levels. (e) Provider issues including provider enrollment or denial of enrollment, overpayment determinations, audits, and sanctions. (f) Other administrative actions including criminal background checks, hardship waivers related to medical assistance, client overpayments related to medical assistance. (g) Oregon State Hospital’s involuntary administration of a significant procedure to a patient or resident. (h) The denial, recertification, suspension, or revocation of forensic mental health evaluator certifications. (i) Administrative commitment and transfer extension hearings of Oregon Youth Authority youth and Oregon Department of Corrections adults-in-custody to Oregon State Hospital. (2) The agency representative may not make legal argument on behalf of the agency. (a) “Legal argument” includes arguments on: (A) The jurisdiction of the agency to hear the contested case; (B) The constitutionality of a statute or rule or the application of a constitutional requirement to an agency; and (C) The application of court precedent to the facts of the particular contested case proceeding. (b) “Legal argument” does not include presentation of motions, evidence, examination and cross-examination of witnesses or presentation of factual arguments or arguments on: (A) The application of the statutes or rules to the facts in the contested case; (B) Comparison of prior actions of the agency in handling similar situations; (C) The literal meaning of the statutes or rules directly applicable to the issues in the contested case; (D) The admissibility of evidence; (E) The correctness of procedures being followed in the contested case hearing. (3) When an agency officer or employee appears on behalf of the Authority, the administrative law judge shall advise the representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection. If the administrative law judge determines that statements or objections made by an agency officer or employee involve legal argument as defined in this rule, the administrative law judge shall provide reasonable opportunity for the agency officer or employee to contact the Attorney General and permit the Attorney General to present argument at the hearing or to file written legal argument within a reasonable time after the conclusion of the hearing. (4) An agency representative appearing under this rule must read and be familiar with the most current Code of Conduct for Non-Attorney Representatives at Administrative Hearings, which is maintained by the Oregon Department of Justice and is available on the Oregon Department of Justice website.