585-030-0030 Request for Formal Mediation or Impartial Fair Hearing (1) A client who is dissatisfied with an action taken by Commission that affects their rights to, or eligibility for vocational rehabilitation services, may, after receiving a Notice of Action, request to participate in collaborative dispute resolution as set forth in OAR 137-003-0565. Collaborative dispute resolution shall consist of formal mediation. A client may also request an impartial fair hearing. (2) To be timely, a request for mediation or hearing shall be received by Commission’s Director of Rehabilitation Services within 60 calendar days following the date of the Notice of Action, except as otherwise provided in this rule. (3) The client’s hearing request is also considered timely if Commission’s Director of Rehabilitation Services: (a) Receives a timely request for mediation under section (2) of this rule; and (b) Receives a completed request for hearing within 60 calendar days following the date of Commission’s written notice that it has either declined to participate in formal mediation or that the formal mediation process has ended. (4) If the request for mediation or hearing is not timely under sections (2) or (3) of this rule, the client waives their right to a hearing, except as otherwise provided in this rule. (a) 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 Commission’s Director of Rehabilitation Services requesting that Commission 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. Commission shall review this information and determine whether the client demonstrated that they had good cause for the untimely request. (b) Commission may conduct further inquiry, including requesting supporting documentation from the client. The client must cooperate with this inquiry and within the timeframes set by Commission. (c) If Commission finds that the client has good cause for the untimely request, Commission may accept the request as timely and proceed as if the request was timely. (5) When Commission has issued a Notice of Action and the client fails to request mediation or a hearing within required timeframes, Commission’s Notice of Action is final and Commission shall issue no further order. Commission’s 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 Commission’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. (6) After the client requests a hearing, Commission or the ALJ shall dismiss the request for hearing, and Commission 's Notice of 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 Commission’s or ALJ’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 Commission or ALJ that the client will not appear at the prehearing conference, hearing or other hearing-related proceeding. (7) 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 ALJ finds that the client had good cause, the ALJ may not dismiss the request for hearing. In this case, the ALJ 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 ALJ shall schedule a hearing on the reasons for the client’s failure to appear. (8) The client may withdraw a request for hearing at any time before the ALJ issues an order. (a) If the request for hearing is withdrawn before the case is assigned to an ALJ, Commission shall issue the order dismissing the request for hearing. (b) If the request for hearing is withdrawn after the case is assigned to an ALJ, the ALJ shall issue the order dismissing the request for hearing. (9) The impartial fair hearing shall be held within 60 calendar days of the date Commission’s Director of Rehabilitation Services received the client’s timely request for formal mediation or hearing pursuant to 34 CFR § 361.57(e)(1), unless a formal mediation agreement is achieved prior to the 60th day or the parties agree to a specific extension of time. (10) 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 Commission’s central office is closed, the deadline shall be extended until the next working day. (b) All requests or other documents must be sent to Commission’s Director of Rehabilitation Services at Commission’s central office. (11) Commission 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. Statutory/Other Authority: ORS 346.150, ORS 183.341 & ORS 183.502 Statutes/Other Implemented: ORS 183.341 & ORS 183.502 History: CFTB 2-2021, adopt filed 02/23/2021, effective 02/24/2021