414-175-0095 Hearings (1) Definitions. For the purposes of this rule, the following definitions apply unless the context clearly indicates otherwise: (a) “Claimant" means a person who has requested a hearing or who is scheduled for an Intentional Program Violation (IPV) hearing. (b) “Department” means the Department of Early Learning and Care. References in this rule to Department include the Oregon Department of Human Services performing functions delegated to it by the Department pursuant to ORS 327.274 . (c) ”Department representative" means a person authorized by section (4) of this rule to represent the Department in the hearing, including the Oregon Department of Human Services performing functions delegated to it by the Department pursuant to ORS 327.274 . (d) "Good cause" means a circumstance beyond the control of the claimant and claimant's representative. (e) “Oregon Department of Human Services” or “ODHS” means the Oregon Department of Human Services performing functions delegated to it by the Department pursuant to ORS 327.274 . (f) “Request for hearing" is a clear written expression by an individual or representative that the person wishes to appeal a Department decision or action. (2) Hearings Requests (a) A claimant has the right to a contested case hearing in the following situations upon the timely completion of a request for hearing: (A) The Department has not approved or denied a request or application within 45 days of the application. (B) The Department acts to deny, reduce, or close ERDC benefits. (C) The Department has sent a decision notice that the claimant is liable for an overpayment (see OAR 414-175-0098 and 461-195-0501). (D) The claimant asks for a hearing to determine if the waiver of an Intentional Program Violation hearing was signed under duress. (E) The right to a hearing is otherwise provided by statute or rule. (b) A request for hearing is complete for a caretaker when: An Administrative Hearing Request form (form DHS 443) is: (A) Completed; (B) Signed by the claimant, the claimant's attorney, or the claimant's authorized representative; and (C) Received by the Oregon Department of Human Services. OAR 137-003-0528(1)(a) (which allows hearing requests to be treated as timely based on the date of the postmark) does not apply to hearing requests contesting a decision notice. The Department has adopted the exception to the Attorney General's model rules set out in this paragraph due to operational conflicts. (c) In the case of a provider of child care challenging an overpayment or intentional program violation, when a written request for hearing from the provider is received by the Oregon Department of Human Services. (d) In the event a request for hearing is not timely, the Oregon Department of Human Services may issue an order of dismissal if there is no factual dispute about whether subsections (2)(g) and (i) of this section provide a right to a hearing. The Oregon Department of Human Services may refer an untimely request to the Office of Administrative Hearings for a hearing on the question of timeliness. (e) In the event the claimant has no right to a contested case hearing on an issue, the Oregon Department of Human Services may enter an order accordingly, subject to appeal pursuant to ORS 183.484, or may refer the hearing request to the Office of Administrative Hearings for a hearing on the question of whether the claimant has the right to a contested case hearing. (f) To be timely, a completed hearing request with respect to eligibility for ERDC benefits, an IPV, or an overpayment, must be received by the Oregon Department of Human Services not later than the 45th day following the date of the decision notice. In a case described in subsection (2)(a)(D) of this rule, the request must be made within 90 days of the date the waiver was signed. (g) When the Oregon Department of Human Services receives a completed hearing request that is not filed within the timeframe required by subsection (2)(f) of this section but is filed no later than 120 days after a decision notice became a final order: (A) The Oregon Department of Human Services refers the hearing request to the Office of Administrative Hearings for a contested case hearing on the merits of the Department's action described in the notice: (i) If the Oregon Department of Human Services finds that the claimant and claimant's representative did not receive the decision notice and did not have actual knowledge of the notice; or (ii) If the Oregon Department of Human Services finds that the claimant did not meet the timeframe required by subsection (2)(f) of this section due to excusable mistake, surprise, excusable neglect (which may include neglect due to significant cognitive or health issues), good cause, reasonable reliance on the statement of a Department or Oregon Department of Human Services employee relating to procedural requirements, or due to fraud, misrepresentation, or other misconduct of the Department or Oregon Department of Human Services. (B) The Oregon Department of Human Services refers the request for a hearing to the Office of Administrative Hearings for a contested case proceeding to determine whether the claimant is entitled to a hearing on the merits if there is a dispute between the claimant and the Oregon Department of Human Services about either of the following paragraphs. (i) The claimant or claimant's representative received the decision notice or had actual knowledge of the decision notice. At the hearing, the Oregon Department of Human Services or Department must show that the claimant or claimant's representative had actual knowledge of the notice or that the Oregon Department of Human Services or Department mailed or electronically mailed the notice to the correct address of the claimant or claimant's representative, as provided to the Oregon Department of Human Services. (ii) The claimant qualifies for a contested case hearing on the merits under paragraph (2)(g)(A)(ii) of this section. (C) The Oregon Department of Human Services may only dismiss such a request for hearing as untimely without a referral to the Office of Administrative Hearings if the following requirements are met: (i) The undisputed facts show that the claimant does not qualify for a hearing under this section; and (ii) The decision notice was served personally or by registered or certified mail. (h) The time periods provided by this rule are computed in part pursuant to OAR 414-175-0050. (i) If the Oregon Department of Human Services receives a hearing request more than 120 days after an overpayment notice became a final order by default: (A) The Oregon Department of Human Services verifies whether its records indicate that the liable adult requesting the hearing was sent the overpayment notice. (B) If no overpayment notice was sent to that liable adult, the overpayment hearing request is timely. The Oregon Department of Human Services will send the claimant a decision notice or a contested case notice. (C) If the Oregon Department of Human Services determines that an overpayment notice was sent to the liable adult, there is no hearing right based on the issue of whether or not the overpayment notice was received. (D) Any hearing request is treated as timely when required under the Servicemembers Civil Relief Act. (E) The Oregon Department of Human Services may dismiss a request for hearing as untimely if the claimant or liable adult does not qualify for a hearing under this section. (j) If the Oregon Department of Human Services receives a hearing request more than 120 days after a decision notice (other than an overpayment notice) became a final order by default: (A) Any hearing request is treated as timely when required under the Servicemembers Civil Relief Act. (B) The Oregon Department of Human Services may dismiss a request for hearing as untimely if the claimant or liable adult does not qualify for a hearing under subsection (2)(i) above. (3) Contested Case Hearings (a) This rule applies to contested case hearings of the Department authorized by section (2)(a) of this rule. The hearings are conducted in accordance with the Attorney General's model rules at 137-003-0501 and following, except to the extent that Department rules are permitted to and provide for different procedures. (A) The method described in OAR 137-003-0520(11) is used in computing any period of time prescribed in this division of rules. (B) In any contested case to which this division of rules applies: (i) When a party or claimant is not represented by an attorney: (I) Upon request of the party or claimant, the Department or Oregon Department of Human Services provides work contact information — telephone number and address — for any Department or Oregon Department of Human Services employees expected to testify at the hearing as witnesses, except rebuttal witnesses. (II) Except as provided in subparagraph (a)(B)(i) of this paragraph, the Department or the Oregon Department of Human Services and any party or claimant in the contested case are not required to provide the telephone numbers and addresses of witnesses prior to the hearing. (ii) The Oregon Department of Human Services does not provide the telephone number and addresses of a witness if the Oregon Department of Human Services has concerns that the release of the information may affect the safety of the witness. (b) When a Department or Oregon Department of Human Services employee represents the Department in a contested case to which this division of rules applies, requests for admission and written interrogatories are not permitted. (c) The Oregon Department of Human Services' contested case hearings governed by this division of rules are not open to the public and are closed to nonparticipants, except nonparticipants may attend subject to the parties' consent and applicable confidentiality laws. (d) The Department has adopted the exceptions to the Attorney General's model rules set out in subsection (3)(b) and section (2) due to its caseload volume and because these discovery procedures would unduly complicate or interfere with the hearing process. (4) Lay Representation in Contested Case Hearings (a) Subject to the approval of the Attorney General, an officer or employee of the Department is authorized to appear on behalf of the Department, and an officer or employee of the Oregon Department of Human Services is authorized to appear on behalf of the Oregon Department of Human Services performing functions delegated to it by the Department pursuant to ORS 329A.500, for hearings related to: (A) the Employment Related Day Care, including child care provider overpayments and intentional program violations. (B) Client overpayments and intentional program violations, related to public assistance, including ERDC child care assistance. (b) The State's representative may not make legal argument on behalf of the Department. (A) "Legal argument" includes arguments on: (i) The jurisdiction of the Department to hear the contested case; (ii) The constitutionality of a statute or rule or the application of a constitutional requirement to the Department; and (iii) 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: (i) The application of the statutes or rules to the facts in the contested case; (ii) Comparison of prior actions of the Department in handling similar situations; (iii) The literal meaning of the statutes or rules directly applicable to the issues in the contested case; (iv) The admissibility of evidence; and (v) The correctness of procedures being followed in the contested case hearing. (c) When an officer or employee appears on behalf of the Department or Oregon Department of Human Services performing functions delegated to it by the Department, the administrative law judge shall advise the State's 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. (d) If the administrative law judge determines that statements or objections made by the Department representative appearing under section (4)(a) of this rule involve legal argument as defined in this rule, the administrative law judge shall provide reasonable opportunity for the Department representative to consult 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 conclusion of the hearing. (e) The Department is subject to the Code of Conduct for Non-Attorney Representatives at Administrative Hearings, which is maintained by the Oregon Department of Justice and available on its website at http://www.doj.state.or.us. A Department representative appearing under section (4)(a) of this rule must read and be familiar with it. (5) Continuation of Benefits (a) This section explains who may receive continuing benefits until a final order is issued in a contested case. (b) Except as provided otherwise in this rule, a caretaker who is entitled to a continuing benefit decision notice under a rule in OAR 414-175-0055, at the option of the caretaker, receive continuing benefits, in the same manner and same amount, until a final order resolves the contested case. To be entitled to continuing benefits, the client must complete a hearing request not later than the later of: (A) The tenth day following the date of the notice; and (B) The effective date of the action proposed in the notice. (c) The continuing benefits are subject to modification based on additional changes affecting the client's eligibility or level of benefits. (d) In determining timeliness under section (5)(b) of this rule, delay caused by circumstances beyond the control of the claimant is not counted. (e) If benefits are reduced or closed to reflect a mass change, continuing benefits are not available. (6) Intentional Program Violation (IPV) Hearings (a) Notwithstanding the other rules in this division of rules and the rules at OAR 137-003-0501 and following, this rule governs intentional program violation hearings for the ERDC program. (b) An individual accused of an Intentional Program Violation may waive the right to an IPV hearing by signing a waiver on a form prescribed by the Oregon Department of Human Services. There is no further administrative appeal after the individual signs the waiver unless the individual asserts that the signature on the waiver was obtained by fraud or under duress and, within 90 days from the date the waiver was signed, requests a hearing to prove this. The individual has the burden of proving fraud or duress. If an Administrative Law Judge determines that the signature on the waiver was obtained by fraud or under duress, the waiver may be nullified and the Department may thereafter initiate an Intentional Program Violation hearing. (c) If an IPV is not established by waiver or in court, the Oregon Department of Human Services may initiate the IPV hearing. The individual is entitled to an Advanced Notice of Intentional Program Violation Hearing at least 30 days in advance of the scheduled hearing. The notice includes the specific charge(s) alleged by the Oregon Department of Human Services. (d) Within 90 days of the date the individual is notified in writing of the disqualification hearing, the Office of Administrative Hearings will conduct the hearing and serve a final order on the individual. (e) The individual is entitled to a postponement of the scheduled hearing, if the request for postponement is made at least 10 days before the date of the scheduled hearing. The hearing will not be postponed for more than a total of 30 days, and the Office of Administrative Hearings may limit the postponements to one. (f) When the individual fails to appear for the scheduled IPV hearing, the hearing may be conducted without the individual if: (A) The individual refused the notice of hearing; (B) The individual refused to claim the notice of hearing; (C) The individual received the notice of hearing; or (D) The notice of hearing was sent to the address last reported by the individual to the Oregon Department of Human Services and was returned as undeliverable. (g) An individual who received notice of the scheduled IPV hearing has 10 days from the date of the scheduled hearing to present reasons indicating a "good cause" for failure to appear. An individual who did not receive notice of the scheduled IPV hearing must present reasons indicating "good cause" for failure to appear as part of a petition for reconsideration or rehearing of the final order within 30 days of the date of the final order. (A) For purposes of this section, "good cause" means the individual was unable to attend the hearing and unable to request a postponement for reasons beyond his or her control. (B) "Good cause" will be determined on the record by the Office of Administrative Hearings. If the individual shows "good cause", the Office of Administrative Hearings will schedule another IPV hearing for the individual. (h) The officer or employee of the Oregon Department of Human services will request that the Administrative Law Judge advise the individual that the individual may refuse to answer questions during the hearing. (i) The standard for proving that an individual has committed an Intentional Program Violation is clear and convincing evidence. (j) There is no administrative appeal of a final order, except as provided in section (g) of section (6). A final order may be appealed to the Court of Appeals as provided in ORS 183.482. (7) Informal Conference (a) The State representative and the claimant may have an informal conference to discuss any of the matters listed in OAR 137-003-0575(4). The informal conference may also be used to: (A) Provide an opportunity to settle the matter; (B) Ensure the claimant understands the reason for the action that is the subject of the hearing request; (C) Give the claimant an opportunity to review the information that is the basis for that action; (D) Inform the claimant of the rules that serve as the basis for the contested action; (E) Give the claimant and the Department representative the chance to correct any misunderstanding of the facts; (F) Determine if the claimant wishes to have any witness subpoenas issued; and (G) Give the Oregon Department of Human Services an opportunity to review its action. (b) The claimant may, at any time prior to the hearing date, request an additional conference with the Department representative. (c) The Department may provide to the claimant the relief sought at any time before the Final Order is served. (d) Notwithstanding any rule in this chapter of rules, prehearing conferences are governed by OAR 137-003-0575. (8) Burden of Proof. Except in an IPV case, the claimant has the burden of proof. (9) Withdrawals of Hearing Requests (a) A claimant may withdraw a request for hearing at any time before a final order has been issued on the contested case orally or in writing. (b) The Oregon Department of Human Services will send an order confirming the withdrawal of a hearing request to the claimant's last known address. The claimant may cancel the withdrawal in writing if received by the Department hearing representative up to the tenth work day following the date such an order is served. (10) Dismissal for Failure to Appear. Except in an IPV case, a hearing request is dismissed by order when neither the party nor the party’s representative appears at the time and place specified for the hearing. The order is effective on the date scheduled for the hearing. The Oregon Department of Human Services will cancel the dismissal order on request of the party on a showing that the party was unable to attend the hearing and unable to request a postponement for reasons beyond his or her control. (11) Proposed and Final Orders (a) When the Oregon Department of Human Services refers a contested case under this division of rules to the Office of Administrative Hearings (OAH), the Oregon Department of Human Services indicates on the referral: (A) Whether the Oregon Department of Human Services is authorizing a proposed order, a proposed and final order (OAR 137-003-0645(4)), or a final order. (B) If the Oregon Department of Human Services is establishing an earlier deadline for written exceptions and argument because the contested case is being referred for an expedited hearing. (b) When the Oregon Department of Human Services authorizes either a proposed order or a proposed and final order: (A) The claimant or party may file written exceptions and written argument to be considered by the Oregon Department of Human Services. The exceptions and argument must be received at the location indicated in the Office of Administrative Hearings order not later than the 20th day after service of the proposed order or proposed and final order, unless subsection (1)(b) of this rule applies. (B) Proposed Orders. After Office of Administrative Hearings issues a proposed order, the Oregon Department of Human Services issues the final order, unless the Oregon Department of Human Services requests that Office of Administrative Hearings issue the final order under OAR 137-003-0655. (C) Proposed and Final Orders. If the claimant or party 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 day after service of the proposed and final order unless the Oregon Department of Human Services has issued a revised order or has notified the claimant or party and Office of Administrative Hearings that the Department will issue the final order. When the Oregon Department of Human Services receives timely exceptions or argument, the Oregon Department of Human Services issues the final order, unless the Oregon Department of Human Services requests that Office of Administrative Hearings issue the final order under OAR 137-003-0655. (c) If in a contested case hearing the Office of Administrative Hearings is authorized to issue a final order on behalf of the Oregon Department of Human Services, the Oregon Department of Human Services may issue the final order in the case of default. (d) A petition by a claimant or party for reconsideration or rehearing must be filed with the individual who signed the final order, unless stated otherwise on the final order. (12) Final Order; Timeliness and Effective Date. A Final Order will be issued or the case otherwise resolved not later than 90 days following the request for hearing, except for IPV cases which will be issued within 90 days of the date the claimant was notified in writing that a hearing had been scheduled. (b) Delay due to a postponement or continuance granted at claimant's request shall not be counted in computing the time limits specified in section (12)(a) of this rule. (c) The final order is effective immediately upon being signed or as otherwise provided in the order. Statutory/Other Authority: ORS 329A.500 Statutes/Other Implemented: ORS 329A.500 History: DELC 46-2023, minor correction filed 10/31/2023, effective 10/31/2023 DELC 42-2023, minor correction filed 10/31/2023, effective 10/31/2023 ELD 11-2023, adopt filed 06/28/2023, effective 07/01/2023