Hearings

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_400/oar_461/461_025.html
Published: 2015

The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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DEPARTMENT OF HUMAN SERVICES, SELF-SUFFICIENCY PROGRAMS












DIVISION 25
HEARINGS

461-025-0300
Contested Case Hearings
(1) The rules in
division 25 of this chapter of rules apply to contested case hearings of the Department
authorized by OAR 461-025-0310(1). 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:
(A) When
a party or claimant is not represented by an attorney:
(i) Upon
request of the party or claimant, the Department provides work contact information
— telephone number and address — for any Department employees expected
to testify at the hearing as witnesses, except rebuttal witnesses.
(ii) Except
as provided in subparagraph (i) of this paragraph, the Department 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.
(B) The Department
does not provide the telephone number and addresses of a witness if the Department
has concerns that the release of the information may affect the safety of the witness.
(2) When
a Department employee represents the Department in a contested case to which this
division of rules applies, requests for admission and written interrogatories are
not permitted.
(3) The Department's
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.
(4) The Department
has adopted the exceptions to the Attorney General's model rules set out in subsection
(1)(b) and section (2) of this rule due to its caseload volume and because these
discovery procedures would unduly complicate or interfere with the hearing process.
Stat. Auth.: ORS
409.050, 411.060, 411.404, 411.816, 412.014 & 412.049

Stats. Implemented:
ORS 183.452, 409.010, 411.060, 411.404, 411.816, 412.014 & 412.049

Hist.: AFS
80-1989, f. 12-21-89, cert. ef. 2-1-90; AFS 4-1995, f. & ef. 2-1-95; AFS 26-1996,
f. 6-27-96, cert. ef. 7-1-96; AFS 16-1999, f. 12-29-99, cert. ef. 1-1-00; AFS 17-2000,
f. 6-28-00, cert. ef. 7-1-00; AFS 6-2001, f. 3-30-01, cert. ef. 4-1-01; AFS 27-2001,
f. 12-21-01, cert. ef. 1-1-02; SSP 14-2006, f. 9-29-06, cert. ef. 10-1-06; SSP 4-2012(Temp),
f. & cert. ef. 1-31-12 thru 7-29-12; SSP 25-2012, f. 6-29-12, cert. ef. 7-1-12;
SSP 32-2012(Temp), f. & cert. ef. 10-5-12 thru 4-3-13; SSP 8-2013, f. &
cert. ef. 4-1-13
461-025-0301
Lay Representation
in Contested Case Hearings
(1) Subject to the approval of the Attorney
General, an officer or employee of the Department of Human Services (Department)
is authorized to appear on behalf of the Department in the following types of hearings
conducted by the Office of Administrative Hearings:
(a) Public assistance, including
but not limited to eligibility for services available through a waiver or state
plan or other benefits, the level and amount of services or benefits, effective
date, and the termination, suspension, reduction, or denial of services or benefits;
(b) Medical assistance, including
but not limited to eligibility for services available through a waiver or state
plan for medical assistance or other medical benefits, the level and amount of services
or benefits, effective date, prior authorizations, medical management decisions,
and the termination, suspension, reduction, or denial of services or benefits;
(c) Employment Related Day
Care, including child care provider overpayments and intentional program violations;
(d) Eligibility for Supplemental
Nutrition Assistance Program (SNAP), the level and amount of benefits, effective
date, and the termination, suspension, reduction, or denial of benefits;
(e) Client overpayments and
intentional program violations, related to public assistance or medical assistance,
SNAP, waivered service benefits or medical benefits or services;
(f) Provider enrollment or
denial of enrollment, provider overpayments, audits, and audit sanctions; and
(g) Estate administration
hardship waivers.
(2) The Department's representative
may not make legal argument on behalf of the Department.
(a) "Legal argument" includes
arguments on:
(A) The jurisdiction of the
Department to hear the contested case;
(B) The constitutionality
of a statute or rule or the application of a constitutional requirement to the Department;
and
(C) 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:
(A) The application of the
statutes or rules to the facts in the contested case;
(B) Comparison of prior actions
of the Department in handling similar situations;
(C) The literal meaning of
the statutes or rules directly applicable to the issues in the contested case;
(D) The admissibility of
evidence; and
(E) The correctness of procedures
being followed in the contested case hearing.
(3) When an officer or employee
appears on behalf of the Department, the administrative law judge shall advise the
Department'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.
(4) If the administrative
law judge determines that statements or objections made by the Department representative
appearing under section (1) 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.
(5) 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
(1) of this rule must read and be familiar with it.
Stat. Auth.: ORS 409.050, 411.060, 411.404,
411.816, 412.014 & 412.049
Stats. Implemented: ORS 183.452,
409.010, 411.060, 411.404, 411.816, 412.014 & 412.049
Hist.: SSP 32-2012(Temp),
f. & cert. ef. 10-5-12 thru 4-3-13; SSP 8-2013, f. & cert. ef. 4-1-13; SSP
15-2014, f. & cert. ef. 7-1-14
461-025-0305
Definitions
For the purposes of this division of rules, the following definitions apply unless the context clearly indicates otherwise:
(1) "Claimant" means a person who has requested a hearing or who is scheduled for an IPV hearing.
(2) "Department representative" or "Division representative" means a person authorized by OAR 461-025-0300 to represent the Department in the hearing.
(3) "Good cause" means a circumstance beyond the control of the claimant and claimant's representative.
(4) A "request for hearing" is a clear expression, oral or written, by an individual or representative that the person wishes to appeal a Department decision or action or, in the SNAP program, wishes to have the decision considered by a higher authority.
Stat. Auth.: ORS 411.060, 411.816 & 412.049

Stats. Implemented: ORS 411.060, 411.816 & 412.049

Hist.: AFS 80-1989, f. 12-21-89, cert. ef. 2-1-90; AFS 4-1995, f. & ef. 2-1-95; AFS 26-1996, f. 6-27-96, cert. ef. 7-1-96; AFS 13-1997, f. 8-28-97, cert. ef. 9-1-97; AFS 16-1999, f. 12-29-99, cert. ef. 1-1-00; AFS 27-2001, f. 12-21-01, cert. ef. 1-1-02; SSP 14-2006, f. 9-29-06, cert. ef. 10-1-06
461-025-0310
Hearing Requests
(1) A claimant (see OAR 461-025-0305)
has the right to a contested case hearing in the following situations upon the timely
completion of a request for hearing:
(a) Except as provided in
subsection (o) of this section, the Department has not approved or denied a request
or application for public assistance or medical assistance within 45 days of the
application.
(b) The Department has not
acted timely on an application as follows:
(A) An application for SNAP
program benefits — within 30 days of the filing date.
(B) An application for a
JOBS support service payment — within the time frames established in OAR 461-115-0190(3).
(c) The Department acts to
deny, reduce, close, or suspend SNAP program benefits, a grant of public assistance,
a grant of aid, a support service payment authorized in the JOBS program by OAR
461-190-0211, medical assistance, or child care benefits authorized under Division
160 or 165 of this chapter of rules in the ERDC or TANF child care programs. When
used in this subsection, grant of public assistance and grant of aid mean the grant
of cash assistance calculated according to the client's need.
(d) The Department has sent
a decision notice (see OAR 461-001-0000) that the claimant is liable for an overpayment
(see OAR 461-195-0501).
(e) The Department modifies
a grant of public assistance or a grant of aid; or the claimant claims that the
Department previously underissued public assistance, medical assistance, or SNAP
program benefits and the Department denies, or denies in part, that claim.
(f) The household disputes
its current level of SNAP program benefits.
(g) The filing group (see
OAR 461-110-0370) is aggrieved by any action of the Department that affects the
participation of the filing group in the SNAP program.
(h) The claimant asks for
a hearing to determine if the waiver of an Intentional Program Violation hearing
was signed under duress.
(i) The Department establishes
or changes the client's premium for the Oregon Health Plan.
(j) In the Pre-TANF program,
the Department denies payment for a basic living expense (see OAR 461-135-0475)
or other support service payment in the JOBS program (see subsection (c) of this
section).
(k) In the TA-DVS program,
when OAR 461-135-1235 provides a right to a hearing.
(l) A service re-assessment
of a client conducted in accordance with OAR division 411-015 has resulted in a
reduction or termination of nursing facility services or home and community-based
care (see OAR 461-001-0030).
(m) The claimant's benefits
are changed to vendor, protective, or two-party payments.
(n) Department has issued
a notice seeking repayment under ORS 411.892 to an employer participating in the
JOBS program.
(o) In the OSIP and OSIPM
programs, when the Department has not approved or denied an application within the
time frames established in OAR 461-115-0190.
(p) The right to a hearing
is otherwise provided by statute or rule.
(2) A client is not entitled
to a hearing on the question of the contents of a case plan (defined in OAR 461-190-0151)
unless the right to hearing is specifically authorized by the Department's rules.
For a dispute about an activity in the JOBS program, the client is entitled to use
the Department's re-engagement process (see 461-190-0231). In the TA-DVS program,
a dispute about the contents of a TA-DVS case plan (see 461-135-1205) is resolved
through re-engagement if there is no right to a hearing under 461-135-1235.
(3) A request for hearing
is complete:
(a) In public assistance
and SNAP programs, when the Department's 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 (see OAR 461-115-0090);
and
(C) Received by the Department.
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 (see 461-001-0000). The Department has adopted the exception to the Attorney
General's model rules set out in this paragraph due to operational conflicts.
(b) In the SNAP program,
when the Department receives an oral or written statement from the claimant, the
claimant's attorney, or the claimant's authorized representative that the claimant
wishes to appeal a decision affecting the claimant's SNAP program benefits to a
higher authority.
(c) In the case of a provider
of child care, when a written request for hearing from the provider is received
by the Department.
(d) For medical assistance,
when a hearing request is made in a manner permitted under OAR 410-200-0145 or this
section.
(4) In the event a request
for hearing is not timely, the Department may issue an order of dismissal if there
is no factual dispute about whether sections (7) and (10) of this rule provide a
right to a hearing. The Department may refer an untimely request to the Office of
Administrative Hearings for a hearing on the question of timeliness.
(5) In the event the claimant
has no right to a contested case hearing on an issue, the Department may enter an
order accordingly. The Department may refer a 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.
(6) For medical assistance,
to be timely, a hearing request must be received by the Department, the OHP Customer
Service, or Cover Oregon in the time frame set out in OAR 410-200-0015 and 410-200-0145.
In other programs, to be timely, a completed hearing request must be received by
the Department not later than:
(a) Except as provided in
subsection (b) of this section, the 45th day following the date of the decision
notice (see OAR 461-001-0000) in public assistance programs.
(b) The 90th day following
the effective date of the reduction or termination of benefits in a public assistance
program if the reduction or termination of aid is a result of a JOBS disqualification
(see OAR 461-130-0330) or a penalty for failure to seek treatment for substance
abuse or mental health (see OAR 461-135-0085).
(c) The 90th day following
the date of the decision notice in the SNAP program, except:
(A) A filing group may submit
a hearing request at any time within a certification period (see OAR 461-001-0000)
to dispute its current level of benefits.
(B) A filing group may submit
a hearing request within 90 days of the denial of a request for restoration of benefits
if not more than twelve months has expired since the loss of benefits.
(d) The 30th day following
the date of notice from the Oregon Department of Revenue in cases covered by ORS
293.250.
(e) In a case described in
subsection (1)(h) of this rule, the request must be made within 90 days of the date
the waiver was signed.
(7) When the Department receives
a completed hearing request that is not filed within the timeframe required by section
(6) of this rule but is filed no later than 120 days after a decision notice became
a final order:
(a) The Department 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:
(A) If the Department finds
that the claimant and claimant's representative did not receive the decision notice
and did not have actual knowledge of the notice; or
(B) If the Department finds
that the claimant did not meet the timeframe required by section (6) of this rule
due to excusable mistake, surprise, excusable neglect (which may include neglect
due to significant cognitive or health issues), good cause (see OAR 461-025-0305),
reasonable reliance on the statement of a Department employee relating to procedural
requirements, or due to fraud, misrepresentation, or other misconduct of the Department.
(b) The Department 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 Department about either
of the following paragraphs.
(A) The claimant or claimant's
representative received the decision notice or had actual knowledge of the decision
notice. At the hearing, the Department must show that the claimant or claimant's
representative had actual knowledge of the notice or that the Department mailed
or electronically mailed the notice to the correct address of the claimant or claimant's
representative, as provided to the Department.
(B) The claimant qualifies
for a contested case hearing on the merits under paragraph (a)(B) of this section.
(c) The Department 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:
(A) The undisputed facts
show that the claimant does not qualify for a hearing under this section; and
(B) The decision notice was
served personally or by registered or certified mail.
(8) In computing the time
periods provided by this rule, see OAR 461-025-0300(1).
(9) In the REF and REFM programs,
a client is not eligible for a contested case hearing when assistance is terminated
because the eligibility time period imposed by OAR 461-135-0900 has been reached.
If the issue is the date of entry into the United States the Department provides
for prompt resolution of the issue by inspection of the individual's documentation
issued by the US Citizenship and Immigration Services (USCIS) or by information
obtained from USCIS, rather than by contested case hearing.
(10) If the Department receives
a hearing request more than 120 days after an overpayment notice became a final
order by default:
(a) The Department 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 Department
will send the claimant a decision notice or a contested case notice.
(c) If the Department 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 Department may dismiss
a request for hearing as untimely if the claimant does not qualify for a hearing
under this section.
(11) If the Department 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 Department may dismiss
a request for hearing as untimely if the claimant does not qualify for a hearing
under subsection (a) of this section.
(12) Notwithstanding sections
(7), (10), and (11) of this rule, for medical assistance, the time frame is the
same as the one in OAR 410-200-0146 instead of 120 days.
[ED. NOTE: Forms referenced are available
from the agency.]
Stat. Auth.: ORS 411.060,
411.095, 411.404, 411.408, 411.816, 411.892, 412.014, 412.049
Stats. Implemented: ORS 411.060,
411.095, 411.103, 411.117, 411.404, 411.408, 411.816, 411.892, 412.009, 412.014,
412.049, 412.069
Hist.: AFS 80-1989, f. 12-21-89,
cert. ef. 2-1-90; AFS 4-1995, f. & ef. 2-1-95; AFS 26-1996, f. 6-27-96, cert.
ef. 7-1-96; AFS 3-2000, f. 1-31-2000, cert. ef. 2-1-00; AFS 17-2000, f. 6-28-00,
cert. ef. 7-1-00; AFS 25-2000, f. 9-29-00, cert. ef. 10-1-00; AFS 22-2001, f. &
cert. ef. 10-1-01; AFS 23-2002(Temp), f. 12-31-02, cert. ef. 1-1-03 thru 6-30-03;
SSP 16-2003, f. & cert. ef. 7-1-03; SSP 21-2004, f. & cert. ef. 10-1-04;
SSP 10-2006, f. 6-30-06, cert. ef. 7-1-06; SSP 14-2006, f. 9-29-06, cert. ef. 10-1-06;
SSP 4-2007, f. 3-30-07, cert. ef. 4-1-07; SSP 7-2007, f. 6-29-07, cert. ef. 7-1-07;
SSP 11-2007(Temp), f. & cert. ef. 10-1-07 thru 3-29-08; SSP 5-2008, f. 2-29-08,
cert. ef. 3-1-08; SSP 8-2008, f. & cert. ef. 4-1-08; SSP 17-2008, f. & cert.
ef. 7-1-08; SSP 38-2009, f. 12-31-09, cert. ef. 1-1-10; SSP 25-2011, f. 9-30-11,
cert. ef. 10-1-11; SSP 4-2012(Temp), f. & cert. ef. 1-31-12 thru 7-29-12; SSP
25-2012, f. 6-29-12, cert. ef. 7-1-12; SSP 17-2013(Temp), f. & cert. ef. 7-1-13
thru 12-28-13; SSP 24-2013, f. & cert. ef. 10-1-13; SSP 32-2013(Temp) f. &
cert. ef. 10-2-13 thru 3-31-14; SSP 9-2014, f. & cert. ef. 4-1-14
461-025-0311
Continuation of Benefits
(1) This rule explains who may receive continuing benefits until a final order is issued in a contested case.
(2) Except as provided otherwise in this rule, a client who is entitled to a continuing benefit decision notice under a rule in division 175 of this chapter of rules may, at the option of the client, 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.
(3) The continuing benefits are subject to modification based on additional changes affecting the client's eligibility or level of benefits.
(4) In determining timeliness under section (2) of this rule, delay caused by circumstances beyond the control of the claimant is not counted.
(5) In the ERDC program, if benefits are reduced or closed to reflect a mass change, continuing benefits are not available.
(6) In the REF and REFM programs, individuals are not entitled to continuing benefits when the issue in question is regarding the termination of benefits because the eligibility time period imposed by OAR 461-135-0900 has been reached.
Stat. Auth: ORS 409.010, 409.050, 411.060, 411.404, 411.408, 411.816, 412.014, 412.049

Stats. Implemented: ORS 409.010, 409.050, 411.060, 411.404, 411.408, 411.816, 412.014, 412.049

Hist.: AFS 25-2000, f. 9-29-00, cert. ef. 10-1-00; AFS 22-2001, f. & cert. ef. 10-1-01; AFS 27-2001, f. 12-21-01, cert. ef. 1-1-02; SSP 28-2003(Temp), f. 10-31-03, cert. ef. 11-1-03 thru 12-31-03; SSP 33-2003, f. 12-31-03, cert. ef. 1-4-04; SSP 14-2006, f. 9-29-06, cert. ef. 10-1-06; SSP 17-2008, f. & cert. ef. 7-1-08; SSP 26-2010(Temp), f. & cert. ef. 8-16-10 thru 2-12-11; SSP 41-2010, f. 12-30-10, cert. ef. 1-1-11
461-025-0315
Expedited Hearings
(1) A claimant has the right to an expedited
hearing in each of the following situations:
(a) The Department denies
or fails to issue a timely decision on claimant's request for:
(A) Emergency assistance;
or
(B) TA-DVS (see OAR 461-135-1235).
(b) The claimant contests
the form or amount of a TA-DVS or an emergency assistance payment.
(c) The claimant has the
right to a hearing over a reduction, suspension, or closure and disagrees with the
Department's decision to deny the continuation of one or more of the following pending
a requested hearing:
(A) Cash benefits.
(B) Supplemental Nutrition
Assistance Program benefits.
(C) Medical benefits.
(D) Nursing Home services
or home and community-based care (see OAR 461-001-0030) that have been reduced or
closed as a result of a service re-assessment conducted in accordance with OAR Division
411-015.
(d) The claimant's request
for expedited SNAP service or DSNAP is denied, or the claimant is aggrieved by an
action of the Department that affects the expedited participation of the household
in the SNAP program.
(e) In the JOBS program,
the Department denies an application for a support service payment or a payment
for a basic living expense authorized by OAR 461-190-0211, or the Department reduces
or closes a support service payment authorized by 461-190-0211, or the Department
does not issue a JOBS support service payment within the time frames required under
461-115-0190.
(2) Public assistance and
medical assistance programs: An expedited hearing is a telephone hearing held within
five working days of the Department's receipt of a properly submitted hearing request,
unless the claimant requests more time. The claimant is entitled to reasonable notice
of the hearing either through personal service, by overnight mail, or if the claimant
agrees by electronic mail. The final order must be issued within three working days
from the date the hearing closes.
(3) Supplemental Nutrition
Assistance Program: An expedited hearing is a telephone hearing held within five
working days of the receipt of a verbal or written hearing request, unless the claimant
requests more time. The claimant is entitled to reasonable notice of the hearing
either through personal service, by overnight mail, or if the claimant agrees by
electronic mail. Following the expedited hearing, a final order must be issued not
later than the ninth working day after the hearing was requested.
(4) If the Office of Administrative
Hearings grants a face-to-face hearing, the hearing may be postponed or continued
as necessary to accommodate the claimant. However, the hearing must be held not
later than 21 days following the receipt by the Department of the request for hearing
if the claimant lives within 100 miles of Salem, Oregon, and not later than 35 days
in all other cases.
Stat. Auth.: ORS 411.060, 411.095, 411.404,
411.816, 412.049
Stats. Implemented: ORS 411.060,
411.095, 411.099, 411.103, 411.117, 411.404, 411.816, 412.049
Hist.: AFS 80-1989, f. 12-21-89,
cert. ef. 2-1-90; AFS 21-1990(Temp), f. 8-28-90, cert. ef. 9-1-90; AFS 2-1991, f.
1-15-91, cert. ef. 2-1-91; AFS 4-1995, f. & ef. 2-1-95; AFS 9-1999, f. &
cert. ef. 7-1-99; AFS 16-1999, f. 12-29-99, cert. ef. 1-1-00; AFS 10-2002, f. &
cert. ef. 7-1-02; AFS 22-2002, f. 12-31-02, cert. ef. 1-1-03; AFS 23-2002(Temp),
f. 12-31-02, cert. ef. 1-1-03 thru 6-30-03; SSP 16-2003, f. & cert. ef. 7-1-03;
SSP 21-2004, f. & cert. ef. 10-1-04; SSP 10-2006, f. 6-30-06, cert. ef. 7-1-06;
SSP 7-2007, f. 6-29-07, cert. ef. 7-1-07; SSP 25-2012, f. 6-29-12, cert. ef. 7-1-12;
SSP 17-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SSP 26-2013, f. &
cert. ef. 10-1-13; SSP 37-2013, f. 12-31-13, cert. ef. 1-1-14
461-025-0316
Intentional Program Violation (IPV) Hearings; SNAP Program
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 SNAP program. This rule reflects
the requirements of the U.S. Department of Agriculture for the SNAP program.
(1) 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 Department. 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 (see OAR 461-025-0310)
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.
(2) If an IPV is not established
by waiver or in court, the Department 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 Department.
(3) 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.
(4) 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.
(5) 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 SNAP program and
was returned as undeliverable.
(6) 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
rule, "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.
(7) The Administrative Law
Judge must advise the individual that he or she may refuse to answer questions during
the hearing.
(8) The standard for proving
that an individual has committed an Intentional Program Violation is clear and convincing
evidence.
(9) There is no administrative
appeal of a final order, except as provided in section (6) of this rule.
Stat. Auth.: ORS 411.060
Stats. Implemented: ORS 411.095
Hist.: AFS 4-1995, f. &
ef. 2-1-95; AFS 16-1999, f. 12-29-99, cert. ef. 1-1-00; SSP 14-2006, f. 9-29-06,
cert. ef. 10-1-06; SSP 9-2014, f. & cert. ef. 4-1-14
461-025-0325
Informal Conference
(1) The Department 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 for the Department and the claimant 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 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 Department an opportunity to review its action.
(2) The claimant may, at any time prior to the hearing date, request an additional conference with the Department representative.
(3) The Department may provide to the claimant the relief sought at any time before the Final Order is served.
(4) Notwithstanding any rule in this chapter of rules, prehearing conferences are governed by OAR 137-003-0575.
Stat. Auth.: ORS 411.060

Stats. Implemented: ORS 411.095

Hist.: AFS 80-1989, f. 12-21-89, cert. ef. 2-1-90; AFS 4-1995, f. & ef. 2-1-95; AFS 26-1996, f. 6-27-96, cert. ef. 7-1-96; AFS 16-1999, f. 12-29-99, cert. ef. 1-1-00
461-025-0332
Burden of Proof
Except in an IPV case, the claimant has the burden of proof.
Stat. Auth.: ORS 411.060

Stats. Implemented: ORS 411.095

Hist.: AFS 17-2000, f. 6-28-00, cert. ef. 7-1-00
461-025-0350
Withdrawals of Hearing Requests
(1) A claimant (see OAR 461-025-0305) may withdraw a request for hearing (see OAR 461-025-0305) at any time before a final order has been issued on the contested case.
(a) In the DSNAP program, the withdrawal of a request for hearing must be in writing.
(b) In all programs other than the DSNAP program, a claimant may withdraw a request for hearing orally or in writing.
(2) The Department or the Office of Administrative Hearings 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.
Stat. Auth.: ORS 411.060, 411.816, 412.049

Stats. Implemented: ORS 411.060, 411.816, 412.049

Hist.: AFS 80-1989, f. 12-21-89, cert. ef. 2-1-90; AFS 4-1995, f. & ef. 2-1-95; AFS 16-1999, f. 12-29-99, cert. ef. 1-1-00; AFS 9-2001, f. & cert. ef. 6-1-01; SSP 14-2006, f. 9-29-06, cert. ef. 10-1-06; SSP 7-2007, f. 6-29-07, cert. ef. 7-1-07; SSP 16-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; SSP 8-2008, f. & cert. ef. 4-1-08
461-025-0356
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 Department 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.
Stat. Auth.: ORS 411.060, 411.070, 411.095

Stats. Implemented: ORS 411.060, 411.070, 411.095

Hist.: AFS 17-2000, f. 6-28-00, cert. ef. 7-1-00
461-025-0371
Proposed and Final Orders
(1) When the
Department refers a contested case under this division of rules (OAR 461-025) to
the Office of Administrative Hearings (OAH), the Department indicates on the referral:
(a) Whether
the Department is authorizing a proposed order, a proposed and final order (OAR
137-003-0645(4)), or a final order.
(b) If
the Department is establishing an earlier deadline for written exceptions and argument
because the contested case is being referred for an expedited hearing.
(2) When
the Department authorizes either a proposed order or a proposed and final order:
(a) The
claimant (see OAR 461-025-0305) or party may file written exceptions and written
argument to be considered by the Department. The exceptions and argument must be
received at the location indicated in the OAH 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 OAH issues a proposed order, the Department issues the final order,
unless the Department requests that OAH 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 Department has issued a revised order or has notified the claimant or party
and OAH that the Department will issue the final order. When the Department receives
timely exceptions or argument, the Department issues the final order, unless the
Department requests that OAH issue the final order under OAR 137-003-0655.
(3) If
in a contested case hearing the Office of Administrative Hearings is authorized
to issue a final order on behalf of the Department, the Department may issue the
final order in the case of default.
(4) 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.
[ED. NOTE:
Tables referenced are not included in rule text. Click here for PDF copy of table(s).]
Stat. Auth.:
ORS 183.341, 409.050, 411.060, 411.404, 411.408, 411.816, 412.014, 412.049

Stats.
Implemented: ORS 183.341, 409.050, 411.060, 411.095, 411.404, 411.408, 411.816,
412.014, 412.049

Hist.:
AFS 14-1999, f. & cert. ef. 11-1-99; AFS 16-1999, f. 12-29-99, cert. ef. 1-1-00;
AFS 17-2000, f. 6-28-00, cert. ef. 7-1-00; SSP 14-2006, f. 9-29-06, cert. ef. 10-1-06;
SSP 25-2011, f. 9-30-11, cert. ef. 10-1-11
461-025-0375
Final Order; Timeliness and Effective Date
(1) A Final Order will be issued or
the case otherwise resolved:
(a) In public assistance
and medical assistance cases not later than 90 days following the request for hearing;
(b) In cases involving only
the SNAP program not later than 60 days following the request for hearing; and
(c) In IPV cases within 90
days of the date the claimant was notified in writing that a hearing had been scheduled.
(2) Delay due to a postponement
or continuance granted at claimant's request shall not be counted in computing the
time limits specified in section (1) of this rule.
(3) The final order is effective
immediately upon being signed or as otherwise provided in the order.
Stat. Auth.: ORS 411.060
Stats. Implemented: ORS 411.095
Hist.: AFS 80-1989, f. 12-21-89,
cert. ef. 2-1-90; AFS 4-1995, f. & ef. 2-1-95; AFS 16-1999, f. 12-29-99, cert.
ef. 1-1-00; SSP 17-2008, f. & cert. ef. 7-1-08; SSP 37-2013, f. 12-31-13, cert.
ef. 1-1-14

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