Current through Register Vol. 63, No. 9, September 1, 2024
(1) A client who
is dissatisfied with a Program action may request mediation, a hearing, or
both. The client may also simultaneously request informal dispute
resolution.
(2) The client shall
use the Program-approved Mediation and Hearing Request form to request
mediation, a hearing, or both.
(3)
To be timely a mediation and hearing request shall:
(a) Be received by the Program's Dispute
Resolution Coordinator within 60 calendar days following the date of the
Program's written Notice of Action or alleged Program delay in making a
decision, except as otherwise provided in this rule.
(b) The client's hearing request is also
considered timely if the Program's Dispute Resolution Coordinator:
(A) Receives a timely request for mediation
under section (3)(a) of this rule; and
(B) Receives a completed request for hearing
within 60 calendar days following the date of the Program's written notice
declining to participate in or ending mediation under OAR
582-020-0045.
(4) Process for handling untimely mediation
or hearing request:
(a) If the request for
mediation or hearing is not timely under section (3) of this rule, the Program
may issue an order accordingly or refer the issue to the IHO for a
determination on the issue of timeliness.
(b) 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 the Program's Dispute Resolution Coordinator requesting that
the Program 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. The Program shall review this information and
determine whether the client demonstrated that they had good cause for the
untimely request.
(A) The Program may conduct
further inquiry, including requesting supporting documentation from the client.
The client must cooperate with this inquiry and within the timeframes set by
the Program.
(B) If the Program
finds that the client has good cause for the untimely request, the Program may
accept the request as timely and proceed as if the request was
timely.
(5)
If there is a factual dispute about whether there is good cause for an untimely
filing, the Program shall refer the matter to the IHO for a hearing to
determine whether:
(a) The hearing request was
received timely;
(b) The client
received the Notice of Action; and
(c) The information included in the client's
statement demonstrates good cause.
(6) The following are non-hearable issues:
(a) A client does not have a right to
mediation or a hearing if the client fails to allege that he or she is
dissatisfied by a Program action, as that term is defined in OAR
582-020-0010(1) or the same action has already been resolved through the
dispute resolution process and no further appeal rights are available under
these rules.
(b) If the Program
determines that the client's mediation or hearing request does not identify a
Program action that gives the client the right to mediation or a hearing, the
Program shall contact the client or client's representative in writing to
identify the deficiencies in the request and to give the client the opportunity
to provide a corrected mediation or hearing request within 14 calendar
days.
(c) In order for the
corrected mediation or hearing request under subsection (b) of this rule to be
considered timely, the Dispute Resolution Coordinator shall receive a complete
request identifying a hearable issue within:
(A) The original deadline to request
mediation or a hearing as described in section (3) of this rule; or
(B) 14 calendar days following the date the
Program notified the client or client's representative of the deficiencies in
the notice.
(d) If the
client submits a corrected request identifying a hearable issue within the
timeframes described in section (5)(c), the Program shall use the date of the
corrected request, not the original request, for purposes of calculating the 60
day deadline to hold the mediation or hearing as described in section (10) of
this rule.
(e) If the client does
not submit a corrected request identifying a hearable issue that gives the
client the right to mediation or a hearing under these rules, the Program may:
(A) Decline to participate in
mediation;
(B) Enter an order to
that effect; or
(C) Refer the
matter to an IHO for a hearing on the question of whether the client has a
right to an impartial due process hearing.
(7) When the Program has issued a Notice of
Action and the client fails to request mediation or a hearing within required
timeframes, the Program's Notice of Action is final and the Program shall issue
no further order. The Program 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 the Program'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.
(8) After the client requests a hearing, the
Program or the IHO shall dismiss the request for hearing, and the Program'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 the Program's or IHO'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 the Program or IHO that the client will not appear at the prehearing
conference, hearing or other hearing-related proceeding.
(9) 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 IHO finds that the client had good cause, the IHO may
not dismiss the request for hearing under section (8) of this rule. In this
case, the IHO 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 IHO shall schedule a hearing on the reasons for the
client's failure to appear.
(10)
The client may withdraw a request for hearing at any time before the IHO issues
an order.
(a) If the request for hearing is
withdrawn before the case is assigned to an IHO, the Program shall issue the
order dismissing the request for hearing.
(b) After the case is assigned to an IHO, the
IHO shall issue the order dismissing the request for hearing.
(11) The hearing or mediation
shall be held within 60 calendar days from the date the Program's Dispute
Resolution Coordinator received the client's timely request for hearing or
mediation, unless:
(a) Informal dispute
resolution successfully resolves the matter within the 60-day
deadline;
(b) A final mediation
agreement is agreed to and signed by the parties within the 60-day
deadline;
(c) The hearing request
was made pursuant to section (3)(b) of this rule, and the hearing occurs within
60 days following the date of the hearing request; or
(d) The parties agree to an extension of the
deadline for a specific period of time. Extensions of the timeline shall be
documented in writing.
(12) 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 the Program's Central Administrative Office is closed, the
deadline shall be extended until the next working day.
(b) All requests or other documents must be
sent to the Program's Dispute Resolution Coordinator at the Program's Central
Administrative Office in Salem.
(13) The Program 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 344.530 & 344.590
Statutes/Other Implemented: ORS 344.511 -
344.690
