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Oregon Bulletin

May 1, 2014

Department of Justice, Chapter 137

Rule Caption: To be in compliance with and maintain standards of practice within the SANE scope.

Adm. Order No.: DOJ 5-2014

Filed with Sec. of State: 4-1-2014

Certified to be Effective: 4-1-14

Notice Publication Date:

Rules Amended: 137-084-0500

Subject: As a certifying body for Oregon Sexual Assault Nurse Examiner program, maintained by the Oregon Sexual Assault Task Force, it is an expectation that persons who are granted SANE certification are maintaining standards of practice. Per the current OAR which guides the Commission, members are granted the service of reviewing and setting standards to achieve initial SANE certification, but there is no stipulation which grants the Commission the ability to continue to review established SANE charts for continued compliance of the set standards of practice. The Commission is requesting a change in the existing OAR to include a process of chart review of the certified SANEs, and following the guidance of the Oregon State Board of Nursing provide written feedback and recommendations. Also, the Commission is requesting an additional appointed member and modification of another established member slot.

Rules Coordinator: Carol Riches—(503) 947-4700

137-084-0500

Sexual Assault Examiner (SAE) and Nurse Examiner (SANE) Certification Commission

(1) The Attorney General establishes a Sexual Assault Examiner and Nurse Examiner (SANE) Certification Commission. The Commission is established to help ensure that registered nurses, physicians and physician assistants who provide sexual assault medical forensic examinations in Oregon and receive compensation through the Sexual Assault Victims’ Emergency Medical Response Fund established by Oregon Laws 2003 c. 789 have the necessary training and qualifications to do so in accordance with the best standards of care, after consultation with the Attorney General’s Sexual Assault Task Force.

(2) Commission members shall be appointed by the Attorney General and shall serve a period of two years from time of appointment. Terms may be renewed upon approval by the Attorney General.

(3) The Commission shall consist of seven (7) members, one each from the following groups:

(a) One (1) Oregon Certified Sexual Assault Examiner or Nurse Examiner;

(b) One (1) Oregon Certified Sexual Assault Nurse Examiner representing the Oregon Nurses Association (ONA);

(c) One (1) Representative from the Oregon State Board of Nursing (OSBN);

(d) One (1) Emergency Room Physician representing the Oregon Chapter of Emergency Physicians (OCEP);

(e) One (1) Physician (at large);

(f) One (1) Advocate;

(g) One (1) At-large position; and

(h) One (1) Member of Law Enforcement or Prosecution.

(4) A majority of a quorum of the Commission may take action and make recommendations to the Attorney General. A quorum shall be established by a simple majority of Commission members.

(5) The Attorney General delegates to the Commission the following powers and duties

(a) Make recommendations to the Attorney General for rules deemed necessary to implement the Sexual Assault Nurse Examiners Program, including standards for certification and renewal of certification by the Commission;

(b) Evaluate and act upon applications for certification; and

(c) Identify, update, and publicize best practices related to sexual assault examinations.

(d) Perform random SAFE/SANE chart reviews of certified SANEs in Oregon to assure standards of practice as defined by the Oregon Sexual Assault Task Force, are being upheld and set forth recommendations to SANEs who demonstrate substandard practices.

(e) In accordance to nursing practice in Oregon if there is found to be any attempt to falsify documentation or demonstration of practicing outside of the scope of practice, a majority quorum of the Commission may take action to suspend or remove SANE certification.

(f) If a SANE/SAE has a suspended or revoked state RN, NP, or PA license to practice, the Commission has the ability to suspend or revoke the SANE/SAE certification.

Stat. Auth.: 2003 OL Ch. 789 (SB 752)

Stats. Implemented: 2003 OL Ch. 789 (SB 752)

Hist.: DOJ 3-2007, f & cert. ef. 3-16-07; DOJ 13-2007, f. & cert. ef. 12-11-07; DOJ 5-2014, f. & cert. ef. 4-1-14


Rule Caption: Amends Attorney General’s Model Rules for Office of Administrative Hearings to Lift or Extend Sunsets

Adm. Order No.: DOJ 6-2014

Filed with Sec. of State: 4-1-2014

Certified to be Effective: 4-1-14

Notice Publication Date: 3-1-2014

Rules Amended: 137-003-0505, 137-003-0640

Rules Repealed: 137-003-0505(T), 137-003-0640(T)

Subject: Amends OAR 137-003-0505(3) to delete the following language: “[t]he notice of sanction requirement imposed in subsection (1)(i) of this rule is effective until January 31, 2014.” Continues the notice of proposed sanction requirement.

   Amends OAR 137-003-0640(8) which provides that “[b]eginning February 1, 2014, agencies, rather than the Chief Administrative Law Judge, will be responsible for providing the immediate review set out in this rule” to extend Chief Administrative Law Judge review until February 1, 2016.

   Repeals temporary rules OAR 137-003-0505 and 137-003-0640.

Rules Coordinator: Carol Riches—(503) 947-4700

137-003-0505

Contested Case Notice

(1) When the agency is required to issue a contested case notice pursuant to ORS 183.415, the notice shall include:

(a) A caption with the name of the agency and the name of the person or agency to whom the notice is issued;

(b) A short and plain statement of the matters asserted or charged and a reference to the particular sections of the statute and rules involved;

(c) A statement of the party’s right to be represented by counsel and that legal aid organizations may be able to assist a party with limited financial resources;

(d) A statement of the party’s right to a hearing;

(e) A statement of the authority and jurisdiction under which a hearing is to be held on the matters asserted or charged;

(f) Either:

(A) A statement of the procedure and time to request a hearing, the agency address to which a hearing request should be sent, and a statement that if a request for hearing is not received by the agency within the time stated in the notice the person will have waived the right to a contested case hearing; or

(B) A statement of the time and place of the hearing;

(g) A statement indicating whether and under what circumstances an order by default may be entered;

(h) If the party is an agency, corporation, partnership, limited liability company, trust, government body or an unincorporated association, a statement that the party must be represented by an attorney licensed in Oregon, unless statutes applicable to the contested case proceeding specifically provide otherwise;

(i) If the agency proposes a sanction, the sanction that the agency proposes based on the facts alleged in the notice. If the proposed sanction is not the maximum potential sanction, the agency may also state the maximum potential sanction for each violation and that the agency may impose up to the maximum potential sanction provided in the notice, without amending the notice; and,

(j) Any other information required by law.

(2) A contested case notice may include either or both of the following:

(a) A statement that the record of the proceeding to date, including information in the agency file or files on the subject of the contested case and all materials submitted by a party, automatically become part of the contested case record upon default for the purpose of proving a prima facie case;

(b) A statement that a collaborative dispute resolution process is available as an alternative to a contested case hearing, if requested within the time period stated in the notice, and that choosing such a process will not affect the right to a contested case hearing if a hearing request is received by the agency within the time period stated in the notice and the matter is not resolved through the collaborative process.

(3) The notice requirements imposed in subsections (1)(h) and (1)(i) apply to all notices issued after January 31, 2012.

Stat. Auth.: ORS 183.341

Stats. Implemented: ORS 183.341, 183.413, 183.415, 183.630 & 183.675

Hist.: DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00; DOJ 9-2007, f. 10-15-07 cert. ef. 1-1-08; DOJ 1-2012, f. 1-11-12, cert. ef. 1-31-12; DOJ 4-2014(Temp), f. 1-31-14, cert. ef. 2-1-14 thru 7-31-14; DOJ 6-2014, f. & cert. ef. 4-1-14

137-003-0640

Immediate Review by Chief Administrative Law Judge

(1) Before issuance of a proposed order or before issuance of a final order if the administrative law judge has authority to issue a final order, the agency or a party may seek immediate review by the Chief Administrative Law Judge of the administrative law judge’s decision on any of the following:

(a) A ruling on a motion to quash a subpoena under OAR 137-003-0585;

(b) A ruling refusing to consider as evidence judicially or officially noticed facts presented by the agency under OAR 137-003-0615 that is not rebutted by a party;

(c) A ruling on the admission or exclusion of evidence based on a claim of the existence or non-existence of a privilege.

(2) The agency by rule or in writing may elect not to make available this process of immediate review by the Chief Administrative Law Judge.

(3) The agency or a party may file a response to the request for immediate review. The response shall be in writing and shall be filed with the Chief Administrative Law Judge within five calendar days after receipt of the request for review with service on the administrative law judge, the agency representative, if any, and any other party.

(4) The mere filing or pendency of a request for the Chief Administrative Law Judge’s immediate review, even if uncontested, does not alter or extend any time limit or deadline established by statute, rule, or order.

(5) The Chief Administrative Law Judge shall rule on all requests for immediate review in writing.

(6) The request and ruling shall be made part of the record of the proceeding.

(7) The Chief Administrative Law Judge may designate in writing a person to exercise his or her responsibilities under this rule.

(8) Beginning February 1, 2016, agencies, rather than the Chief Administrative Law Judge, will be responsible for providing the immediate review set out in this rule.

Stat. Auth.: ORS 183.341

Stats. Implemented: ORS 183.341 & 183.630

Hist.: DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00; DOJ 19-2003, f. 12-12-03, cert. ef. 1-1-04; DOJ 1-2012, f. 1-11-12, cert. ef. 1-31-12; DOJ 4-2014(Temp), f. 1-31-14, cert. ef. 2-1-14 thru 7-31-14; DOJ 6-2014, f. & cert. ef. 4-1-14


Rule Caption: Updating cite references and correcting error in miscellaneous rules

Adm. Order No.: DOJ 7-2014

Filed with Sec. of State: 4-1-2014

Certified to be Effective: 4-1-14

Notice Publication Date: 2-1-2014

Rules Amended: 137-055-1100, 137-055-3300, 137-055-3360, 137-055-3435, 137-055-3660, 137-055-5510, 137-055-6120, 137-055-7180

Subject: The following rules are amended to update cite references and correct typos and grammatical errors: OAR 137-055-1100, OAR 137-055-3360, OAR 137-055-3660, OAR 137-055-5510 and OAR 137-055-6120

   OAR 137-055-3300 is amended to clarify that an incarcerated obligor is not precluded from requesting either periodic review or change of circumstance modification at any time.

   OAR 137-055-3435 is amended to clarify that a parent may contest whether there has been a change in physical custody and the time during which the change occurred, as provided in the other parent’s change of custody affidavit.

   OAR 137-055-7180 is amended to clarify that a Determination of Controlling Order must be filed in court within 30 days of its issuance.

Rules Coordinator: Carol Riches—(503) 947-4700

137-055-1100

Continuation of Services

Support (DCS) will notify the support obligee and any child attending school under 107.108 and OAR 137-055-5110, in writing, of the services to be provided and the consequences of receiving those services, including a listing of available services, fees, the state’s policy on cost recovery and its distribution policies. DCS will notify the obligee, and the child attending school that subject to the obligor’s right to request services:

(a) An obligee or applicant for services may at any time request that support enforcement services no longer be provided. If the obligee or applicant so requests and case closure procedures pursuant to OAR 137-055-1120 have been completed, all support enforcement services on behalf of the obligee or applicant will be discontinued. However, except as provided in 137-055-1090, if an order has already been established, DCS will continue efforts to collect arrears assigned to the state. DCS will apply any collections received against the assigned arrears until this amount has been collected.

(b) An obligee may also request under OAR 137-055-1090 that support enforcement services no longer be provided for either the obligee or the state.

(c) A child attending school who is an applicant for services may, under subsection (1)(a), request that support enforcement services no longer be provided on his or her behalf. A child attending school who is not an applicant for services may discontinue all support enforcement services on his or her behalf by redirecting his or her support to the obligee under OAR 137-055-5110(5)(b).

(2) In cases where current child support is not assigned to the state but medical support is assigned to the state, the obligee may elect to not pursue establishment and enforcement of a child support obligation other than medical child support. In those cases, if the obligee so elects, the administrator will provide only those services necessary to establish and enforce an order for medical child support, including establishment of paternity where necessary.

(3) If a case has been closed pursuant to this rule, an obligee or applicant may at any time request the child support case be reopened by completing a new application for services. If an application for services is received, arrears may be reestablished pursuant to OAR 137-055-3240 or 137-055-5120, except for permanently assigned arrears which have been satisfied or which accrued to the state prior to the reapplication for services.

Stat. Auth.: ORS 25.080 & 180.345

Stats. Implemented: ORS 25.080

Hist.: AFS 34-1986(Temp), f. & ef. 4-14-86; AFS 65-1986, f. & ef. 9-19-86; AFS 28-1988, f. & cert. ef. 4-5-88; AFS 66-1989, f. 11-28-89, cert. ef. 12-1-89, Renumbered from 461-035-0054; AFS 23-1997, f. 12-29-97, cert. ef. 1-1-98; AFS 32-2000, f. 11-29-00, cert. ef. 12-1-00, Renumbered from 461-195-0055; AFS 28-2001, f. 12-28-01, cert. ef. 1-1-02; AFS 15-2002, f. 10-30-02, ef. 11-1-02; DOJ 6-2003(Temp), f. 6-25-03, cert. ef. 7-1-03 thru 12-28-03, Renumbered from 461-200-1100; DOJ 10-2003, f. 9-29-03, cert. ef. 10-1-03, Renumbered from 461-200-1100; DOJ 4-2005, f. & cert. ef. 4-1-05; DOJ 9-2005, f. & cert. ef. 10-3-05; DOJ 1-2006, f & cert. ef. 1-3-06; DOJ 6-2006, f. & cert. ef. 10-2-06; DOJ 1-2007, f. & cert. ef. 1-2-07; DOJ 12-2009, f. & cert. ef. 10-1-09; DOJ 13-2011, f. 12-30-11, cert. ef. 1-3-12; DOJ 7-2014, f. & cert. ef. 4-1-14

137-055-3300

Incarcerated Obligors

(1) For purposes of establishing or modifying a support order, the following definitions apply:

(a) “Correctional facility” means any place used for the confinement of persons charged with or convicted of a crime or otherwise confined under a court order, and includes but is not limited to a youth correction facility.

(A) “Correctional facility” applies to a state hospital only as to persons detained therein charged with or convicted of a crime, or detained therein after acquittal of a crime by reason of mental defect;

(B) “Correctional facility” includes alternative forms of confinement, such as house arrest or confinement, where an obligor is not permitted to seek or hold regular employment.

(b) “Incarcerated obligor” means a person who:

(A) Is or may become subject to an order establishing or modifying child support; and

(B) Is, or is expected to be, confined in a correctional facility for at least six consecutive months from the date of initiation of action to establish a support order, or from the date of a request to modify an existing order pursuant to this rule.

(2) For purposes of computing a monthly support obligation for an incarcerated obligor, all provisions of the Oregon child support guidelines, as set forth in OAR 137-050-0700 through 137-050-0765, will apply except as otherwise specified in this rule.

(3) The incarcerated obligor’s income and assets are presumed available to the obligor, unless such income or assets are specifically restricted, assigned, or otherwise inaccessible pursuant to state or federal laws or rules regarding the income and assets of incarcerated obligors.

(4) If the incarcerated obligor has gross income less than $200 per month, the administrator shall presume that the obligor has zero ability to pay support.

(5) If the provisions of section (4) of this rule apply, the administrator will not initiate an action to establish a support obligation if the obligor is an incarcerated obligor, as defined in subsection (1)(b) of this rule, until 61 days after the obligor’s release from incarceration.

(6) The administrator will not initiate an action to modify a support obligation because of incarceration unless the obligor is an incarcerated obligor, as defined in subsection (1)(b) of this rule, and a party to the current order has requested a modification.

(7) An order entered pursuant to ORS 416.425 and this rule, that modifies a support order because of the incarceration of the obligor, is effective only during the period of the obligor’s incarceration and for 60 days after the obligor’s release from incarceration. The previous support order is reinstated by operation of law on the 61st day after the obligor’s release from incarceration.

(a) An order that modifies a support order because of the obligor’s incarceration must contain a notice that the previous order will be reinstated on the 61st day after the obligor’s release from incarceration;

(b) Nothing in this rule precludes an obligor from requesting a modification based on a periodic review, pursuant to OAR 137-055-3420, or a change of circumstances, pursuant to OAR 137-055-3430.

(8) The provisions of this rule do not apply to an obligor who is incarcerated because of nonpayment of support.

Stat. Auth.: ORS 180.345 & 416.455

Stats. Implemented: ORS 416.425

Hist.: AFS 21-2000, f. & cert. ef. 8-1-00; AFS 32-2000, f. 11-29-00, cert. ef. 12-1-00, Renumbered from 461-195-0078; AFS 4-2001, f. 3-28-01, cert. ef. 4-1-01; DOJ 6-2003(Temp), f. 6-25-03, cert. ef. 7-1-03 thru 12-28-03, Renumbered from 461-200-3300; DOJ 10-2003, f. 9-29-03, cert. ef. 10-1-03; DOJ 7-2004, f. 3-30-04, cert. ef. 4-1-04; DOJ 12-2004, f. & cert. ef. 10-1-04; DOJ 1-2010, f. & cert. ef. 1-4-10; DOJ 6-2012(Temp), f. & cert. ef. 5-24-12 thru 11-20-12; DOJ 15-2012, f. 9-27-12, cert. ef. 10-1-12; DOJ 7-2014, f. & cert. ef. 4-1-14

137-055-3360

Entering of Administrative Orders in the Register of the Circuit Court

An administrative order under ORS 416.400 to 416.470 must be entered in accordance with the requirements of this rule:

(1) If the administrative order establishes support or paternity and the child is not residing in a state financed or supported residence, shelter or other facility or institution (see ORS 416.417), the order must be entered in the circuit court in the county in which the child, or either parent of the child, resides.

(2) If the administrative order establishes support or paternity and the child is residing in a state financed or supported residence, shelter or other facility or institution (see ORS 416.417) or resides out of state, the order must be entered in the circuit court in the county in which the obligor resides.

(3) Except as provided in section (4), if the administrative order is one that modifies an underlying support order, the order must be entered in the circuit court in the same county as the underlying support order.

(4) If there is a judicial proceeding pending at the time of finalizing an administrative order establishing support or paternity, the administrative order must be entered in the circuit court in the same county as the pending judicial proceeding.

(5) Nothing in this rule precludes filing liens in other Oregon counties pursuant to ORS 18.152 or transferring judgments pursuant to ORS 25.100 or 107.449.

Stat. Auth.: ORS 180.345 & 416.455

Stats. Implemented: ORS 416.440

Hist.: AFS 21-2000, f. & cert. ef. 8-1-00; AFS 32-2000, f. 11-29-00, cert. ef. 12-1-00, Renumbered from 461-195-1091; DOJ 6-2003(Temp), f. 6-25-03, cert. ef. 7-1-03 thru 12-28-03, Renumbered from 461-200-3360; DOJ 10-2003, f. 9-29-03, cert. ef. 10-1-03, Renumbered from 461-200-3360; DOJ 2-2004, f. 1-2-04 cert. ef. 1-5-04; DOJ 12-2004, f. & cert. ef. 10-1-04; DOJ 7-2011, f. & cert. ef. 10-3-11; DOJ 7-2014, f. & cert. ef. 4-1-14

137-055-3435

Physical Custody Changes: Adjusting Orders

(1) This rule applies when physical custody of a child changes as described in ORS 416.416. For purposes of this rule, “non-custodial” party means the party without physical custody of the minor child.

(2) The provisions of this rule apply only when all of the children in the support order change physical custody from one parent to another, and the change is not for the purpose of exercising parenting time or visitation.

(3) Specifically excluded from adjustments for physical custody are an adult child as defined in OAR 137-055-5110 and a child attending school, as defined in 137-055-5110, because neither are considered to be in the physical custody of anyone.

(4) When a support order has language sufficient to change the support award when a change in physical custody occurs, a party may submit a sworn affidavit or court order to the administrator which includes the date the party obtained physical custody. The administrator will notify the parties that support will be changed 14 days from the date of mailing to the parties’ last known addresses. The notice must include:

(a) A copy of the affidavit or court order;

(b) The amount of support the non-custodial party will be ordered to pay, as previously determined in the support order;

(c) A statement that a hearing may be requested under ORS 416.427; and

(d) A statement that the only issues to be considered in a hearing are whether there has been a change in physical custody and the date on which it took place.

(5) If an objection is received, the administrator will forward it, along with the requesting party’s affidavit, to the Office of Administrative Hearings for a final determination about physical custody.

(6) If no objection is received, the administrator will file a money award to provide notice of the ending of the obligation of the former non-custodial parent, and of beginning the obligation of the new non-custodial parent.

(7) Nothing in this rule prohibits a party from requesting a review and adjustment of a support order under OAR 137-055-3420, or a change of circumstances modification under 137-055-3430.

Stat. Auth: ORS 180.345

Stats. Implemented: ORS 416 (2009 OL Ch 353)

Hist.: DOJ 1-2010, f. & cert. ef. 1-4-10; DOJ 7-2014, f. & cert. ef. 4-1-14

137-055-3660

Multiple Child Support Judgments

(1) When the administrator finds that two or more child support judgments exist involving the same obligor and child for the same time period and each judgment was issued in this state, the administrator may:

(a) Issue a proposed governing child support order, as provided in ORS 416.448;

(b) Petition the court in the county where a child who is subject to the judgment resides for a governing child support judgment; or

(c) Move to set aside any one of the support judgments if the judgment was entered in error.

(2) For purposes of a governing child support proceeding, there is a presumption that the terms of the last-issued child support judgment are the controlling terms and supersede contrary terms of each earlier-issued child support judgment, except that:

(a) When the last-issued child support judgment is silent about non-medical child support, the non-medical child support terms of an earlier-issued child support judgment continue; and

(b) When the last-issued child support judgment is silent about medical support, the medical support terms of an earlier-issued child support judgment continue.

(3) The presumption may be rebutted if the last issued child support judgment:

(a) Was issued without prior notice to the issuing court, administrative law judge or administrator that another support proceeding involving the child was pending or another support judgment involving the child already existed;

(b) Was issued after an earlier child support judgment and did not enforce, modify or set aside the earlier child support judgment;

(c) Should be set aside under ORS 25.089(3)(a) and ORCP 71 because it was issued without service on the administrator as required in ORS 107.087, 107.135, 107.431, 108.110, 109.103 and 109.125, when support rights are assigned to the state and the states interests were not adequately protected; or

(d) Should otherwise be set aside under ORS 25.089(3)(a) and ORCP 71.

(4) The administrator may issue a proposed governing child support order as provided in subsection (1)(a), only if the presumption in section (2) is applied.

(5) When determining which support judgment was the “last-issued” for purposes of determining a governing child support judgment, the issue date for any support judgment will be:

(a) The date the support judgment was entered into the circuit court register; or

(b) If the support judgment is an administrative modification of a court judgment the date the order approving the modification was entered into the circuit court register.

(6) When the court issues a governing child support judgment or when an administrative governing child support order is approved by the court, the non-controlling terms of each earlier child support judgment regarding non-medical child support or medical support are terminated. However, the issuance of the governing child support judgment does not affect any support payment arrearage or any liability related to medical support that has accrued under a child support judgment before the governing child support judgment is issued.

(7) The administrator’s proposed governing child support order or petition for governing child support judgment will include:

(a) A reconciliation of any child support arrears or credits for overpayments under all of the child support judgments; or

(b) An order or motion to reconcile any child support arrears or credits for overpayments under all of the child support judgments in a separate proceeding under ORS 25.167 or 416.429.

(8) When reconciling any child support arrears or credits for overpayments under all of the child support judgments included in the governing child support proceeding for time periods prior to entry of a governing child support judgment:

(a) The obligor is expected to pay the total amount of current support due under the highest judgment; and

(b) Payment made toward any one of the judgments must be credited against the obligation owed under the others.

(9) This rule does not apply if the later-issued child support judgment was entered in circuit court before January 1, 2004, the administrator was providing services under ORS 25.080, and the administrator treated a later-in-time court judgment as superseding an earlier entered administrative order.

(10) For purposes of this rule, a Support Judgment means an administrative order for child support that has been entered into the circuit court register under ORS 416.440 or a judgment of the court for child support.

Stat. Auth.: ORS 180.345, 416.448

Stats. Implemented: ORS 25.089, 25.091, 25.167, 416.429 and 416.448

Hist.: DOJ 2-2004, f. 1-2-04 cert. ef. 1-5-04; DOJ 1-2006, f & cert. ef. 1-3-06; DOJ 1-2010, f. & cert. ef. 1-4-10; DOJ 7-2014, f. & cert. ef. 4-1-14

137-055-5510

Request for Credit Against Child Support Arrears for Physical Custody of Child

The terms used in this rule have the meanings set out in OAR 137-055-6010.

(1) In accordance with ORS 416.425, the administrator may allow a credit against child support arrearages for periods of time during which the obligor has physical custody of the child(ren) when:

(a) Physical custody was pursuant to a court ordered parenting time schedule and the court order specifically states that the obligor is allowed a credit for parenting time that is not already factored into the monthly child support amount;

(b) Physical custody was with the knowledge and consent of the obligee; or

(c) The obligor has custody of the child(ren) pursuant to court order.

(2) A request for credit against child support arrears under this rule must be made in writing:

(a) If the credit is requested for a time period immediately prior to the effective date of the modification; or

(b) Independently of a request for modification, for any time period within two years prior to the date of the request.

(3)(a) Credit for physical custody may only be given if the child(ren) is/are with the obligor for 30 consecutive days or the entire month for which credit is sought. When the obligor is seeking a credit for fewer than all of the children under a child support order, a credit may only be given if the order is not a class order as defined in OAR 137-055-1020.

(b) Credit for physical custody may not be given against any arrears which have accrued to a child attending school account under ORS 107.108 and OAR 137-055-5110.

(4) Notwithstanding subsections (3)(a) and (b), the credit may only be allowed to the extent it will not result in a credit balance, as defined in OAR 137-055-3490(1).

(5) The administrator will send to the parties by regular mail, or by service, as part of the modification action, notice and proposed order of the intended action, including the amount to be credited. Such notice will inform the parties that:

(a) Within 30 days from the date of this notice, a party may request an administrative hearing;

(b) The request for hearing must be in writing;

(c) The only basis upon which a party may object is that:

(A) The obligor did not have physical custody of all the child(ren) under the support order for the time periods requested;

(B) The obligor had physical custody of the child(ren), but the custody was not with the knowledge and consent of the obligee and the obligor does not have legal custody of the child(ren);

(C) The obligor had physical custody of the child(ren) pursuant to a court order for parenting time and the order does not allow the obligor a credit for periods of parenting time.

(6) Credit for physical custody will not be allowed for any child who is a child attending school or an adult child as defined in ORS 107.108 and OAR 137-055-5110.

(7) If a credit is allowed pursuant to this rule, the credit will be applied as follows:

(a) If none of the arrears are assigned to the state, the credit will be applied to the family’s unassigned arrears;

(b) If there are arrears assigned to the state and the child was receiving assistance during any time period for which the obligor had physical custody of the child(ren), the credit will be applied in the following sequence:

(A) State’s permanently assigned arrears, not to exceed the amount of unreimbursed assistance;

(B) State’s temporarily assigned arrears, not to exceed the amount of unreimbursed assistance;

(C) Family’s unassigned arrears;

(D) Family’s conditionally assigned arrears.

(c) If there are arrears assigned to the state and the child was not receiving assistance during any time period for which the obligor had physical custody of the child(ren), the credit will be applied in the following sequence:

(A) Family’s unassigned arrears;

(B) Family’s conditionally assigned arrears;

(C) State’s permanently assigned arrears, not to exceed the amount of unreimbursed assistance;

(D) State’s temporarily assigned arrears, not to exceed the amount of unreimbursed assistance.

(8) Any appeal of the decision made by an administrative law judge must be to the circuit court for a hearing de novo pursuant to ORS 416.427.

Stat. Auth.: ORS 180.345 & 416.455

Stats. Implemented: ORS 416.425

Hist.: DOJ 2-2004, f. 1-2-04 cert. ef. 1-5-04; DOJ 10-2004, f. & cert. ef. 7-1-04; DOJ 8-2005(Temp), f. & cert. ef. 9-1-05 thru 2-17-06; DOJ 1-2006, f & cert. ef. 1-3-06; DOJ 1-2007, f. & cert. ef. 1-2-07; DOJ 7-2014, f. & cert. ef. 4-1-14

137-055-6120

Satisfaction of Arrears for Less Than Full Payment

The Division of Child Support (DCS) may satisfy all or any portion of child support arrears that are assigned to the State of Oregon or to any other jurisdiction, subject to the following:

(1) DCS may satisfy all or any portion of assigned arrears only if one or more of the following circumstances apply:

(a) The arrears are a substantial hardship to the paying parent or that parent’s household; or

(b) A compromise of amounts owing will result in greater collection on the case, considering the maximum amount that DCS could reasonably expect to collect from the obligor if no compromise was made and the probable costs of collecting that maximum amount; or

(c) The obligor has entered into an agreement with DCS to take steps to:

(A) Enhance the obligor’s ability to pay child support; or

(B) Enhance the obligor’s relationship with the child or children for whom the obligor owes the arrears.

(d) An error or legal defect has occurred that indicates a reduction may be appropriate.

(2) If all or any portion of the assigned arrears are the states temporarily-assigned arrears as defined in OAR 137-055-6010, DCS may satisfy the amount only if the obligee consents and signs the appropriate “satisfaction of support judgment” form.

(3) If all or any portion of the assigned arrears are assigned to another jurisdiction, DCS may satisfy that assigned amount only with the approval of that jurisdiction.

(4) DCS will not sign any satisfaction for less than full payment of arrears until:

(a) The obligor has paid the full amount agreed to as appropriate consideration, and the obligor’s payment instrument has cleared the appropriate financial institutions; or

(b) DCS has determined that the obligor has satisfactorily met, or is complying with, any agreement made with DCS pursuant to this rule.

(5) DCS will record a summary of each agreement to satisfy arrears for less than full payment on the appropriate electronic file on the case.

(6) Any satisfaction executed under this rule will be made pursuant to, and in full compliance with, ORS 18.228.

(7) The provisions of this rule notwithstanding, the obligee may satisfy all or any portion of unassigned arrears due the obligee, pursuant to OAR 137-055-5220.

(8) Nothing in this rule precludes the administrator from negotiating a satisfaction of arrears due or potentially due the obligee for less than full payment by the obligor, but such satisfaction will take effect only when the obligee consents and signs a “satisfaction of support judgment” pursuant to OAR 137-055-5220.

Stat. Auth.: ORS 180.345

Stats. Implemented: ORS 18.400, 25.020 & 25.080

Hist.: AFS 77-1982, f. 8-5-82, ef. 9-1-82; AFS 93-1982, f. & ef. 10-18-82; AFS 66-1989, f. 11-28-89, cert. ef. 12-1-89, Renumbered from 461-035-0025; AFS 11-2000, f. 4-28-00, cert. ef. 5-1-00; AFS 32-2000, f. 11-29-00, cert. ef. 12-1-00, Renumbered from 461-195-0150; DOJ 6-2003(Temp), f. 6-25-03, cert. ef. 7-1-03 thru 12-28-03, Renumbered from 461-200-6120; DOJ 10-2003, f. 9-29-03, cert. ef. 10-1-03, Renumbered from 461-200-6120; DOJ 9-2005, f. & cert. ef. 10-3-05; DOJ 1-2007, f. & cert. ef. 1-2-07; DOJ 3-2011(Temp), f. & cert. ef. 3-31-11 thru 9-26-11; DOJ 4-2011, f. & cert. ef. 7-1-11; DOJ 7-2014, f. & cert. ef. 4-1-14

137-055-7180

Determining Controlling Order

(1) The administrator will determine a single controlling order when:

(a) Services are being provided under ORS 25.080 and two or more child support orders have been issued regarding the same obligor, child and obligee; or

(b) A party or other jurisdiction requests a determination.

(2) For purposes of this rule, any order modified or issued after October 20, 1994 (the effective date of the Full Faith and Credit for Child Support Orders Act, 28 USC 1738B), will be interpreted as a modification of all orders issued prior to October 20, 1994, unless:

(a) The tribunal entering the order did not have jurisdiction to do so; or

(b) A party alleges the tribunal lacked personal or subject matter jurisdiction.

(3) When a request for a controlling order determination is received from another jurisdiction:

(a) The request is not complete until documents necessary to perform the determination are received; and

(b) The request is considered “filed with the appropriate tribunal” as required by 45 CFR 303.7(d)(5) when the administrator receives the complete request.

(4) The administrator will determine the controlling order and issue an order setting out the determination. The order is an order in an other than contested case proceeding under ORS chapter 183. The order will be served upon the parties by certified mail, return receipt requested, at the last known address of the parties. The order must include:

(a) The basis for personal jurisdiction over the parties;

(b) The names of the parties and the child for whom support was ordered;

(c) A statement of each child support order which was considered, the jurisdiction which issued the order and the date of the order;

(d) A statement identifying the order the administrator determines is the controlling order and why;

(e) A statement that the controlling order determination is effective the date the order is issued by the administrator;

(f) A reference to ORS 110.333;

(g) A notice that a party may submit further information and petition the administrator for reconsideration of the order within 60 days of the date of the order;

(h) A notice that OAR 137-004-0080 applies to any petition for reconsideration; and

(i) A notice that a party may appeal the order as provided by ORS 183.484.

(5) If the administrator determines that no tribunal has continuing, exclusive jurisdiction under ORS chapter 110, the administrator will notify the parties and establish a new child support order.

(6) For the purposes of determining the Oregon county in which the administrator may enter the order determining the controlling order, the following provisions apply:

(a) If one or more Oregon court files exist for the same obligor and child, the order will be entered in each existing court file;

(b) If an Oregon court file does not exist, the administrator will enter the documents required by ORS 416.440 in the circuit court in the county where the party who lives in Oregon resides.

(7) Within 30 days after the determination of controlling order is issued, the administrator will certify copies of the order determining the controlling order and file one with each tribunal that issued or registered an earlier order of child support.

(8) Upon written receipt of an order determining the controlling order that a tribunal of this or another jurisdiction properly issued, the administrator will:

(a) Adjust the Oregon case record to cease prospective accrual on any non-controlling order and initiate accrual on any controlling order which was issued or registered by an Oregon tribunal on the date specified in the order determining controlling order or, when not specified, in accordance with OAR 137-055-5040; and

(b) When one of the non-controlling orders was issued by an Oregon tribunal, ensure that the order determining the controlling order is entered in the Oregon circuit court for the county which issued or entered the prior order.

Stat. Auth.: ORS 25.729 & 180.345

Stats. Implemented: ORS 110.327 & 110.333

Hist.: AFS 26-1997, f. 12-31-97, cert. ef. 1-1-98; AFS 32-2000, f. 11-29-00, cert. ef. 12-1-00, Renumbered from 461-195-2385; DOJ 6-2003(Temp), f. 6-25-03, cert. ef. 7-1-03 thru 12-28-03, Renumbered from 461-200-7180; DOJ 10-2003, f. 9-29-03, cert. ef. 10-1-03, Renumbered from 461-200-7180; DOJ 10-2004, f. & cert. ef. 7-1-04; DOJ 3-2011(Temp), f. & cert. ef. 3-31-11 thru 9-26-11; DOJ 4-2011, f. & cert. ef. 7-1-11; DOJ 7-2014, f. & cert. ef. 4-1-14

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2013.

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