Oregon Bulletin

February 1, 2014

Oregon Health Insurance Exchange, Chapter 945

Rule Caption: Lay Representation in Contested Case Hearings

Adm. Order No.: OHIE 8-2013(Temp)

Filed with Sec. of State: 12-23-2013

Certified to be Effective: 12-23-13 thru 5-17-14

Notice Publication Date:

Rules Adopted: 945-040-0180

Rules Suspended: 945-040-0180(T)

Subject: Authorizes the Exchange to use lay representation in contested case hearings conducted by the Office of Administrative Hearings.

Rules Coordinator: Gregory Jolivette—(503) 373-9406


Lay Representation in Contested Case Hearings

(1) Subject to the approval of the Attorney General, an officer or employee of the Oregon Health Insurance Exchange (Exchange) is authorized to appear on behalf of the Exchange in the following types of contested case hearings conducted by the Office of Administrative Hearings:

(a) Appeals by individual applicants or enrollees, or an authorized representative of an individual applicant or enrollee, of a decision by the Exchange concerning an initial determination of eligibility or redetermination of eligibility for:

(A) Enrollment in a qualified health plan, including enrollment in a qualified health plan that is a catastrophic plan;

(B) Advance payments of the premium tax credit, including the amount of advance payments of the premium tax credit;

(C) Cost sharing reductions, including the level of cost-sharing reductions;

(D) MAGI-based Medicaid and CHIP program eligibility relevant to appeals described in subsection (a)(i)–(iii); and coordination with the Oregon Health Authority concerning appeals of MAGI-based Medicaid and CHIP eligibility decisions; or

(b) Appeals by individual applicants and enrollees, or an authorized representative of an individual applicant or enrollee, alleging failure of the Exchange to act on an application within 45 days of the filing date.

(2) The Exchange representative may not make legal argument on behalf of the Exchange.

(3) “Legal argument” includes arguments on

(a) The jurisdiction of the Exchange to hear the contested case;

(b) The constitutionality of a statute or rule or the application of a constitutional requirement to the Exchange; and

(c) The application of court precedent to the facts of the particular contested case proceeding.

(4) “Legal argument” does not include presentation of motions, evidence, examination and cross-examination of witnesses, or representation 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 Exchange 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.

(5) If the administrative law judge determines that statements or objections made by the Exchange 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 Exchange to consult with 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.

(6) For purposes of this rule, “applicant” has the meaning in OAR 945-040-0010(4)(a), and “enrollee” has the meaning in 945-040-0010(15) for qualified individuals.

Stat. Auth.: ORS 741.002

Stats. Implemented: ORS 741.002 & 183.452

Hist.: OHIE 7-2013(Temp), f. & cert. ef. 11-18-13 thru 5-17-14; OHIE 8-2013(Temp), f. & cert. ef. 12-23-13 thru 5-17-14

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