Investigations of Third-Party: Contested Case Hearings
(1) This rule applies to contested case hearings on “Founded” child abuse determinations made by OTIS under OAR 407-047-0680 (Investigations of Third-Party: Abuse Determination).(2) Contested case proceedings under this rule are conducted in accordance with the Attorney General’s model rules in OAR chapter 137, division 003, except to the extent that OAR 407-047-0600 (Investigations of Third-Party: Purpose and Scope) to 407-047-0730 (Investigations of Third-Party: Lay Representative) are permitted to and provide for different procedures.(3) A contested case hearing under this rule is not open to the public and is closed to nonparticipants, except nonparticipants may attend subject to the consent of the parties (as defined in ORS 183.310 (Definitions for chapter) (7)(a) through (c)) and OTIS and must adhere to applicable confidentiality laws.(4) A respondent who receives a Notice of Abuse Determination under OAR 407-047-0700 (Investigations of Third-Party: Notifications and Report Distribution) may challenge that notice by filing a written, timely request for a contested case hearing. The request must be electronically submitted or postmarked to the Department of Human Services, Office of Training, Investigations and Safety, 201 High Street SE, Suite 500, Salem, Oregon within 30 calendar days of the date of the Notice of Abuse Determination.(5) OTIS may dismiss a request for hearing as untimely if the respondent’s written explanation for missing the hearing request deadline does not meet the criteria in OAR 137-003-0528 (Late Hearing Requests)(2) and (3). If there is a factual dispute regarding the missed deadline OTIS may refer the request for a limited contested case hearing about the reasons for missing the deadline.(6) A respondent may withdraw a request for hearing at any time before a final order has been issued in the contested case.(a) OTIS or the Office of Administrative Hearings (OAH) will send an order confirming the withdrawal of a hearing request to the last known address of the respondent.(b) The respondent may cancel the withdrawal if a written cancellation of the withdrawal is electronically submitted or postmarked to OTIS no later than 10 business days from the date of the order confirming the withdrawal.(c) A late cancellation of a withdrawal may be considered if the written cancellation of the withdrawal is sent to OTIS and electronically submitted or postmarked within the deadline set out in OAR 137-003-0675 (Reconsideration and Rehearing — Contested Cases)(1) from the date of the order confirming the withdrawal.(d) OTIS will allow the late cancellation of a withdrawal filed within the deadline set out in OAR 137-003-0675 (Reconsideration and Rehearing — Contested Cases)(1) if the deadline to cancel the withdrawal was missed due to circumstances beyond the control of the respondent.(7) OTIS will refer to OAH the issue of allowing the late cancellation of a withdrawal filed within the deadline set out in OAR 137-003-0675 (Reconsideration and Rehearing — Contested Cases)(1) if there is a factual dispute about whether the deadline to cancel the withdrawal was missed due to circumstances beyond the control of the respondent.(8) An order dismissing a hearing request is issued when neither the respondent nor the respondent’s representative appear at the time and place specified for the hearing. OTIS may reconsider and cancel the dismissal under OAR 137-003-0675 (Reconsideration and Rehearing — Contested Cases) after a timely written request of the respondent on a showing that the respondent was unable to attend the hearing and unable to request a postponement from OAH for reasons beyond respondent’s reasonable control. OTIS may refer the reconsideration decision to OAH.(9) When OTIS refers a contested case under this rule to OAH, OTIS indicates on the referral whether OTIS is authorizing a proposed order, a proposed and final order (OAR 137-003-0645 (Proposed Orders in Contested Cases)(4)), or a final order.(a) When OTIS authorizes either a proposed order or a proposed and final order, the respondent may file written exceptions and written argument to be considered by OTIS. The exceptions and argument must be electronically submitted or postmarked or received at the location indicated in the OAH order no later than the 20th calendar day after service of the proposed order or proposed and final order.(b) When OTIS authorizes proposed and final orders, if the respondent 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 calendar day after service of the proposed and final order unless OTIS has issued a revised order or has notified the respondent and OAH that OTIS will issue the final order. When OTIS receives timely written exceptions or argument, OTIS issues the final order, unless OTIS requests that OAH issue the final order under OAR 137-003-0655 (Further Hearing and Issuance of Final Order).(c) If in a contested case hearing OAH is authorized to issue a final order on behalf of OTIS, OTIS may issue the final order in the case of default.(10) OTIS has adopted the following exceptions to the Attorney General’s Model Rules due to caseload volume and because the model discovery procedures would unduly complicate or interfere with the hearing process:(a) Upon request of the party or respondent, OTIS provides work contact information (telephone number and address) for any Department employees expected to testify at the hearing as witnesses, except rebuttal witnesses.(b) Except as provided in subsection (a) of this section, OTIS and any party or respondent in the contested case are not required to provide the telephone numbers and addresses of witnesses.