Oregon Administrative Rules
Chapter 414 - DEPARTMENT OF EARLY LEARNING AND CARE
Division 175 - EMPLOYMENT RELATED DAY CARE PROGRAM
Section 414-175-0095 - Hearings
Universal Citation: OR Admin Rules 414-175-0095
Current through Register Vol. 63, No. 9, September 1, 2024
(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
Disclaimer: These regulations may not be the most recent version. Oregon may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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