411-375-0080 Hearing Rights (1) EXCLUSIONS. The following are excluded from the hearings process described in this rule: (a) Terminations based on a background check. The independent provider has the right to a hearing in accordance with OAR 407-007-0200 through 407-007-0370. (b) Termination based on being excluded or debarred by the Office of the Inspector General. (c) Termination based on a conviction for fraud according to 42 CFR 455.23. (d) Standard inactivation as described in OAR 411-375-0070. (e) Independent providers that are denied a provider enrollment number at the time of initial application. (2) EMERGENCY INACTIVATION. (a) If an independent provider files a timely hearing request as described in OAR 411-375-0070, the matter shall be referred to the Office of Administrative Hearings, a hearing on the emergency inactivation shall be held, and a final order shall be issued in accordance with the following timelines, unless a delay is explained in the final order as required by subsection (e) of this section: (A) Within seven calendar days of receiving a timely request for hearing, the Department shall refer the matter to the Office of Administrative Hearings to hold a hearing on the emergency inactivation order. (B) Within 30 calendar days of receiving a referral for a hearing on an emergency inactivation order, the Office of Administrative Hearings shall complete the hearing and close the evidentiary record. (C) Within 15 calendar days of the close of the evidentiary record in the hearing, the Office of Administrative Hearings shall issue a proposed order or a final order, if the Department has delegated authority to issue a final order. (D) Within 15 calendar days of receiving a proposed order from the Office of Administrative Hearings, the Department shall issue a final order. (b) The time limits established in subsection (a) of this section may be waived or extended with the agreement of the Department and the independent provider. (c) The hearing on an emergency inactivation order may be combined with any related agency proceeding affecting the provider number only with the agreement of the independent provider. (d) At the hearing regarding the emergency inactivation order, the administrative law judge shall consider the facts and circumstances including, but not limited to the following: (A) Whether the acts or omissions of the independent provider pose imminent danger to individuals; and (B) Whether circumstances at the time of the hearing justify confirmation, alteration, or revocation of the order. (e) The administrative law judge shall issue a proposed order consistent with OAR 137-003-0645 unless the administrative law judge has authority to issue a final order without first issuing a proposed order. A proposed order shall contain a recommendation whether the emergency inactivation order is confirmed, altered, or revoked. The final order shall be consistent with OAR 137-003-0665 and shall be based upon the criteria in subsection (d) of this section. If any of the deadlines specified in subsection (a) of this section are not met, the final order shall state the reason. (3) TERMINATIONS. (a) An independent provider may file a request for a hearing with the Department if the independent provider disputes the decision to terminate the provider number of the independent provider except when excluded under section (1) of this rule. If an independent provider decides to file a request for hearing, the independent provider must specify in the request, the issues or decisions being disputed and the reason for the request. (b) The request for a hearing must be filed in writing on the Department approved form with the Department within 30 calendar days from the effective date of the termination included on the notification of proposed termination. (c) INFORMAL CONFERENCE. The Department offers an informal conference for proposed terminations, as described in OAR 461-025-0325, to an independent provider within five business days from the receipt of a request for hearing. (A) The independent provider has 10 business days to respond to the offer for an informal conference with the Department. (B) If the independent provider accepts the offer of an informal conference, the informal conference must be scheduled with the independent provider and, if requested, a legal representative. The informal conference must involve the independent provider and the Department to review the facts, and explain the decision to terminate the provider enrollment. The informal conference may be held by telephone. At the discretion of the Department representative, the Department representative may grant an additional informal conference to facilitate the hearing process. (C) Participation in an informal conference by the independent provider is not required. (4) The referral of a hearing request by the Department to the Office of Administrative Hearings is subject to OAR 137-003-0515. (5) BURDEN OF PROOF. The Department has the burden of proving the decision to emergency inactivation or termination of the provider enrollment of an independent provider by a preponderance of the evidence. Evidence submitted for a hearing is governed by OAR 137-003-0610. Statutory/Other Authority: ORS 409.050 Statutes/Other Implemented: ORS 410.600, 410.606-410.619 & 427.007 History: APD 8-2019, amend filed 01/24/2019, effective 01/25/2019 APD 29-2018, temporary amend filed 08/02/2018, effective 08/03/2018 through 01/28/2019 APD 29-2016, f. & cert. ef. 6-29-16 APD 29-2015(Temp), f. 12-31-15, cert. ef. 1-1-16 thru 6-28-16 APD 48-2014, f. 12-26-14, cert. ef. 12-28-14 APD 30-2014(Temp), f. & cert. ef. 7-1-14 thru 12-28-14