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Oregon State Archives

Oregon Bulletin

December 1, 2011

Department of Human Services,
Children, Adults and Families Division:
Child Welfare Programs
Chapter 413

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 27-2011

Filed with Sec. of State: 11-3-2011

Certified to be Effective: 11-4-11

Notice Publication Date: 10-1-2011

Rules Adopted: 413-010-0501, 413-010-0502

Rules Amended: 413-010-0500, 413-010-0505, 413-010-0510, 413-010-0515, 413-010-0520, 413-010-0525, 413-010-0530, 413-010-0535

Rules Repealed: 413-010-0500(T), 413-010-0501(T), 413-010-0502(T), 413-010-0505(T), 413-010-0510(T), 413-010-0515(T), 413-010-0520(T), 413-010-0525(T), 413-010-0530(T), 413-010-0535(T)

Subject: OAR 413-010-0500 is being amended to restate the purposes of the contested case hearing rules and the policies about hearing rights, applicable rules, and computation of time. This rule is also being amended to remove definitions, which will be located in OAR 413-010-0501 and to remove its description of policies about representation which will be located in OAR 413-010-0502.

OAR 413-010-0501 about the definitions is being adopted to set out definitions of certain terms used in the contested case rules. The definitions of some of the terms previously defined in OAR 413-010-0500 are being revised.

OAR 413-010-0502 about representation in contested cases and who may attend a hearing is being adopted to set out set out and revise policies on this topic. These topics were previously covered in OAR 413-010-0500.

OAR 413-010-0505 about hearing requests is being amended to clarify and correct references in the rule.

OAR 413-010-0510 about the notice for a contested case hearing is being amended to more clearly specify that the required contents of a notice on the topic of the Department’s right to recover payments made pending a hearing decision.

OAR 413-010-0515 about continuation of benefits is being amended to revise the circumstances and timelines under which payments and benefits may continue pending the hearing of a contested case.

OAR 413-020-0520 about informal conferences and OAR 413-020-0525 about the burden of proof are being amended to indicate when defined terms are used.

OAR 413-010-0530 about withdrawals and dismissals is being amended to clarify terms used in the rule.

OAR 413-010-0535 about proposed and final orders is being amended to revise the date on which a proposed and final order becomes a final order when a party does not submit timely exceptions or argument.

These rules (OAR 413-010-0500 to 413-010-0535) are also being amended to make permanent temporary rule changes adopted on June 30, 2011.

Rules Coordinator: Annette Tesch—(503) 945-6067

413-010-0500

Purpose, Right to Request Hearing, Applicable Rules, and Computation of Time

(1) The purpose of these rules (OAR 413-010-0500 to 413-010-0535) is to:

(a) State the rights of individuals and entities to request a contested case hearing when the Department takes certain actions; and

(b) Set forth rules governing some aspects of the contested case hearings process.

(2) The individuals and entities described below have the right to request a contested case hearing under ORS Chapter 183. In order to exercise the right to a hearing, the individual or entity must submit and the Department must receive a hearing request which complies with OAR 413-010-0505 within the timeframes described in that rule.

(a) A child or young adult placed in substitute care by the Department may request a hearing in the manner set forth in OAR 413-010-0505 when the Department issues a notice and decision that includes a statement of hearing rights that:

(A) Reduces or terminates the base rate payment;

(B) Determines, denies, reduces or terminates a level of care payment;

(D) Denies eligibility under Title IV-E of the Social Security Act when such denial impacts a benefit;

(E) Denies, reduces or terminates the base rate payment made on behalf of the child’s or young adult’s minor child when the minor child:

(i) Lives with the child or young adult in substitute care; and

(ii) Is not in the legal custody of the Department; or

(F) Denies eligibility for medical assistance under Child Welfare Policy I-E.6.2, “Title XIX and General Assistance Medical Eligibility,” (OAR 413-100-0400 through 413-100-0610) when such denial impacts assistance.

(b) Unless an adoption assistance agreement automatically expires, a pre-adoptive family or an adoptive family applying for or receiving adoption assistance under Child Welfare Policy I-G.3.1, “Adoption Assistance,” (OAR 413-130-0000 to 413-130-0130) may request a hearing in the manner set forth in 413-010-0505 when the Department issues a notice and decision that includes a statement of hearing rights and:

(A) Denies Title IV-E adoption assistance benefits;

(B) Denies adoption assistance from state funds;

(C) Reduces adoption assistance payments or terminates adoption assistance without the concurrence of the adoptive family;

(D) Reduces adoption assistance payments or terminates adoption assistance for a reason other than a child turning age 18 or a young adult turning age 21 when an extension has been granted; or

(E) Offers the family a specific amount or type of adoption assistance when the Department and the adoptive family or pre-adoptive family are unable to reach agreement through a negotiation or renegotiation under OAR 413-130-0070 or 413-130-0075.

(c) Unless a guardianship assistance agreement automatically expires, a potential guardian or a guardian applying for or receiving guardianship assistance payments under Child Welfare Policy I-E.3.6.2, “Guardianship Assistance,” (OAR 413-070-0900 to 413-070-0982) in the manner set forth in 413-010-0505 when the Department issues a notice and decision that includes a statement of hearing rights and:

(A) Denies Title IV-E guardianship assistance benefits;

(B) Terminates, reduces, or otherwise changes guardianship assistance payments without the concurrence of the guardian;

(C) Terminates guardianship assistance for a reason other than a child turning age 18 or a young adult turning age 21 when an extension has been granted; or

(D) Offers the family a specific amount or type of guardianship assistance when the Department and the guardian or potential guardian are unable to reach agreement through a negotiation or renegotiation under OAR 413-070-0917, 413-070-0939, or 413-070-0969.

(d) An applicant for a Certificate of Approval or a certified family may request a hearing in the manner set forth in OAR 413-010-0505 when the Department denies the application or revokes a certificate under Child Welfare Policy II-B.1, “Standards for Certification of Foster Parents, Relative Caregivers, and Approval of Potential Adoptive Resources,” (OAR 413-200-0301 to 413-200-0396);

(e) An applicant for a license to operate a private child-caring agency or a licensee may request a hearing in the manner set forth in OAR 413-010-0505 when the Department denies, suspends, or revokes a license or imposes a civil penalty under Child Welfare Policy II-C.1, “Licensing Umbrella Rules,” (OAR 413-215-0000 to 413-215-0131);

(f) An organization or school that operates a residential care program for children and is not also a private child-caring agency may request a hearing in the manner set forth in OAR 413-010-0505 when the Department orders the organization or school to alter the conditions under which a child lives or receives schooling or denies, suspends or revokes a license under Child Welfare Policy II-C.1, “Licensing Umbrella Rules,” (OAR 413-215-0000 to 413-215-0131);

(g) An applicant to adopt or an applicant for a Certificate of Approval may request a hearing in the manner set forth in OAR 413-010-0505 when the Department determines that the applicant is unfit based on the criminal offender information or a false statement regarding criminal offender information of the applicant or of another individual in the household of the applicant under Child Welfare Policy I-G.1.4, “Oregon Computerized Criminal History Checks and Nationwide Criminal History Checks through the FBI for Relative Caregivers, Foster Parents, Other Persons in the Household and Adoptive Parents for Children in the Care or Custody of DHS,” (OAR 413-120-0400 to OAR 413-120-0470).

(3) A person may request a hearing in the manner set forth in OAR 413-010-0505 when that person has the right to a contested case hearing under a statute concerning Child Welfare Programs or a rule in Chapter 413.

(4) These rules (OAR 413-010-0500 to 413-010-0535), apply to contested cases arising from the properly made hearings requests described in sections (2) and (3) of this rule. The following other rules do or do not apply as noted:

(a) OAR 137-003-0501 to 137-003-0700 apply to these contested cases, except to the extent that rules in Chapter 413 are permitted to and provide otherwise.

(b) Rules in chapter 461 do not apply to these contested cases unless a rule in chapter 413 expressly refers to them.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: SOSCF 32-2001, f. 6-29-01 cert. ef. 7-1-01; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 10-2009(Temp), f. & cert. ef. 9-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 27-2011, f. 11-3-11, cert. ef. 11-4-11

413-010-0501

Definitions

The following definitions apply to these rules (OAR 413-010-0500 to 413-010-0535):

(1) “Adoption assistance” means assistance provided on behalf of an eligible child or young adult to offset the costs associated with adopting and meeting the ongoing needs of the child or young adult. “Adoption assistance” may be in the form of payments, medical coverage, reimbursement of nonrecurring expenses, or special payments.

(2) “Adoptive family” means an individual or individuals who have legalized a parental relationship to the child who joined the family through a judgment of the court.

(3) “Base rate payment” means a payment to the foster parent or relative caregiver at a rate established by the Department for the costs of providing the child or young adult with the following:

(a) Food — including the cost to cover a child’s or young adult’s special or unique nutritional needs;

(b) Clothing — including purchase and replacement;

(d) Daily supervision — including teaching and directing to ensure safety and well-being at a level which is appropriate based on the child’s or young adult’s chronological age;

(e) Personal incidentals — including personal care items, entertainment, reading materials, and miscellaneous items; and

(f) The cost of providing transportation — including local travel associated with expenditure for gas and oil, and vehicle maintenance and repair associated with transportation to and from extracurricular, child care, recreational, and cultural activities.

(4) “Certificate of Approval” means a document that the Department issues to approve the operation of a certified relative caregiver home or a foster home.

(5) “Certified family” means an individual or individuals who hold a current Certificate of Approval from the Department to operate a home to provide care, in the home in which they reside, to a child or young adult in the care or custody of the Department.

(6) “Child” means a person under 18 years of age.

(7) “Foster parent” means a person who operates a home that has been approved by the Department to provide care for an unrelated child or young adult placed in the home by the Department.

(8) “Guardian” means an individual who has been granted guardianship of a child through a judgment of the court.

(9) “Guardianship assistance” means assistance on behalf of an eligible child or young adult to offset the costs associated with establishing the guardianship and meeting the ongoing needs of the child or young adult. “Guardianship assistance” may be in the form of a payment, medical coverage, or reimbursement of guardianship expenses.

(10) “Level of care payment” means the payment provided to an approved or certified family, a guardian, a pre-adoptive family or an adoptive family based on the need for enhanced supervision of the child or young adult as determined by applying the CANS algorithm to the results of the CANS screening.

(11) “Level of personal care payment” means the payment to a qualified provider for performing the personal care services for an eligible child or young adult based on the child’s or young adult’s need for personal care services as determined by applying the personal care services algorithm to the results of the personal care services rating scale.

(12) “Licensee” means a private child-caring agency or an organization or school that offers a residential program for children (regulated pursuant to ORS 418.327) and holds a license issued by the Department.

(13) “Participating tribe” means a federally recognized Indian tribe in Oregon with a Title IV E agreement with the Department.

(14) “Party” means a person entitled to a contested case hearing under these rules.

(15) “Potential guardian” means an individual who:

(a) Has been approved by the Department or participating tribe to be a child’s guardian; and

(b) Is in the process of legalizing the relationship to the child through the judgment of the court.

(16) “Pre-adoptive family” means an individual or individuals who:

(a) Has been selected to be a child’s adoptive family; and

(b) Is in the process of legalizing the relationship to the child through the judgment of the court.

(17) “Private child-caring agency” is defined by the definitions in ORS 418.205, and means a “child-caring agency” that is not owned, operated, or administered by any governmental agency or unit.

(a) A “child-caring agency” means an agency or organization providing:

(A) Day treatment for disturbed children;

(B) Adoption placement services;

(D) Outdoor youth programs (defined at OAR 413-215-0911); or

(E) Other similar services for children.

(b) A child-caring agency does not include residential facilities or foster care homes certified or licensed by the Department under ORS 443.400 to 443.455, 443.830, and 443.835 for children receiving developmental disability services.

(18) “Relative caregiver” means a person who operates a home that has been approved by the Department to provide care for a related child or young adult who is placed in the home by the Department.

(19) “Young adult” means a person aged 18 through 20 years.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 27-2011, f. 11-3-11, cert. ef. 11-4-11

413-010-0502

Representation

(1) When a child or young adult has the right to a hearing because the Department takes an action under OAR 413-010-0500(2)(a), the foster parent or relative caregiver may:

(a) Request a hearing on behalf of the child or young adult; and

(b) Participate in the hearing as a representative on behalf of the child or young adult.

(2) When the Department takes an action to deny, reduce, or terminate a benefit or service that is provided under Title IV-E or Title XIX of the Social Security Act, a party may be represented by an attorney, a relative, a friend, or other spokesperson as authorized by federal law.

(3) In all other cases, a party may represent themselves or be represented by an attorney.

(4) The Department, with the consent of the Attorney General, has authorized its employees to represent the Department in cases involving the actions described in OAR 413-010-0500(2)(a).

(5) A Department employee acting as the Department’s representative may not make legal argument on behalf of the Department.

(a) “Legal argument” includes argument on:

(A) The jurisdiction of the Department to hear the contested case;

(B) The constitutionality of a statute or administrative rule or the application of a constitutional requirement to the Department; and

(b) “Legal argument” does not include presentation of a motion, evidence, examination and cross-examination of a witness, or presentation of a factual argument or arguments on:

(A) The application of a statute or administrative rule to the facts in the contested case;

(B) Comparison of a prior Department action when handling a similar situation;

(D) The admissibility of evidence; and

(E) The correctness of a procedure being followed in the contested case hearing.

(6) The Department may be represented in any contested case proceeding by the Department of Justice.

(7) Contested cases under these rules are not open to the public and are closed to nonparticipants, except nonparticipants may attend subject to the consent of each party and the Department.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 27-2011, f. 11-3-11, cert. ef. 11-4-11

413-010-0505

Hearing Requests

(1) To request a hearing under OAR 413-010-0500(2)(a):

(a) The party or the party’s representative must complete and sign a hearing request form approved by the Department: and

(b) The form must be received by the Department not later than 30 days following the mailing date or date of personal delivery of the notice.

(2) Requests for a hearing under OAR 413-010-0500(2)(b)-(g) must be in writing and must be received by the Department by the date specified in the Department’s notice.

(3) In the event a request for a hearing is not timely, OAR 137-003-0528 applies, except to the extent provided otherwise in section (5) of this rule.

(4) If a contested case notice was sent by regular mail, and the party or party’s representative indicates that neither the party nor the party’s representative received or had actual knowledge of the contested case notice, the Department must advise the party or party’s representative of the right to request a hearing under section (5) of this rule.

(5) When the Department receives a hearing request that is not filed within the timeframe required by section (1) or section (2) of this rule but is filed no later than 60 days after a notice becomes a final order under OAR 413-010-0510(3):

(a) If the Department finds that the party and party’s representative did not receive the written notice and did not have actual knowledge of the notice, the Department refers the request for a hearing to the Office of Administrative Hearings (OAH) for a contested case hearing on the merits of the Department’s action described in the notice.

(b) The Department may refer the request for a hearing to the OAH for a contested case proceeding to determine whether the party or party’s representative received the written notice or had actual knowledge of the notice. At the hearing, the Department must show that the party or party’s representative had actual knowledge of the notice or that the Department mailed the notice to the correct address of the party or party’s representative.

(6) Upon receipt of a hearing request that is not described in OAR 413-010-0500(2), the Department may enter an order that the hearing request is not eligible for referral to OAH. Alternately, the Department may refer a hearing request to OAH for a decision on the question of whether there is a right to a contested case hearing.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005, 2009 OL Ch. 126

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 9-2009(Temp), f. & cert. ef. 8-12-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 27-2011, f. 11-3-11, cert. ef. 11-4-11

413-010-0510

Notice

(1) When the Department takes any of the actions described in OAR 413-010-0500(2), the Department issues a written notice to the person that has the right to a contested case hearing.

(2) When the Department takes any of the actions described in OAR 413-010-0500(2)(a)-(c), the written notice must:

(a) Specify the date the notice is mailed or personally delivered;

(b) Specify the action the Department intends to take and the effective date of the action. If benefits are reduced or closed to reflect cost-of-living adjustments in benefits or other mass change under a program operated by a federal agency or to reflect a mass change to payments in another program operated by the Department, it is sufficient to meet this requirement that the notice state all of the following:

(A) The general nature of the change.

(B) Examples of how the change affects the benefits of the group of affected clients.

(c) Specify the circumstances under which payments or benefits are continued if a hearing is requested and whether continued payments or benefits may be subject to recovery by the Department if the Department’s action is upheld; and

(d) If the Department intends to terminate benefits or payments because the individual is ineligible for the benefits or payments or the program is terminated, state that the individual may reapply for assistance if circumstances affecting the eligibility of the individual change.

(3) Department notices indicate that the Department designates the record of the proceeding, including information in the Department’s file or files and materials added by a party, as the record upon default. The Department’s notice becomes a final order --

(a) The day after the date prescribed in the notice as the deadline for requesting the hearing if the party fails to request a hearing; or

(b) The day the Department or OAH mails an order dismissing the hearing request because the party withdraws the request or fails to appear on the date and at the time set for the hearing.

(4) When the Department terminates or reduces benefits or services under subsections (2)(a) through (2)(c) of OAR 413-010-0500, the Department must send the notice --

(a) At least 10 calendar days before the effective date of the action, except as provided in subsection (b) of this section.

(b) When the Department changes a benefit standard that results in the reduction, suspension or closure of a grant of public assistance:

(A) At least 30 days before the effective date of the action; or

(B) At least 10 working days before the effective date of the action when the Department has fewer than 60 days before the effective date to implement the proposed change.

(c) For purposes of this rule, the term “changes a benefit standard” means a change to the applicable inflation-adjusted contribution, income, or payment standard. It does not include the annual adjustment to a standard based on a federal or state inflation rate.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 27-2011, f. 11-3-11, cert. ef. 11-4-11

413-010-0515

Continuation of Benefits

(1) Except as otherwise provided in this rule, a recipient of benefits is entitled to receive continuing benefits when the Department takes any action to suspend, reduce, or terminate benefits or services as described in subsections (2)(a)(A)–(F), (2)(b), or (2)(c) of OAR 413-010-0500, and the Department has:

(a) Provided at least 10 days notice of such action as required by OAR 413-010-0510;

(b) Received a request for a hearing from the recipient not later than 30 days following the mailing date or date of personal delivery of the notice, whichever is earlier; and

(2) Any continuing benefits authorized by this rule are subject to recovery by the Department to the extent that the Department’s action is sustained or otherwise upheld.

(3) Continuing benefits may not be provided:

(a) When the recipient specifically requests that he or she not receive continued assistance pending a hearing decision;

(b) After a final order is issued by the Department;

(c) After a change affecting the recipient’s grant, as described in subsections (2)(a)(A), (B), (D), and (E), (2)(b) or (2)(c) of OAR 413-010-0500, occurs while the hearing decision is pending and the recipient fails to request a hearing after notice of the change; or

(d) After a determination is made at a hearing that the sole issue is one of state or federal law or policy or change in state or federal law and not one of incorrect grant computation.

(4) Except as otherwise provided in this rule, if the Department provides less than 10 days notice of an action to suspend, reduce, or terminate benefits or services as described in subsections (2)(a)(A), (B), (D), and (E), (2)(b) or (2)(c) of OAR 413-010-0500, a recipient of benefits is entitled to receive continuing benefits if the Department:

(a) Receives a request for a hearing from the recipient within 10 days of the mailing of the notice of the action; and

(b) Determines that the action resulted from other than the application of federal or state law or policy or a change in state or federal law.

(5) Except as otherwise provided in this rule, if the Department provides less than 10 days notice of an action to suspend, reduce, or terminate benefits or services as described in subsection (2)(a)(C) or (F) of OAR 413-010-0500, or 5 days notice in cases of probable fraud as described in 42 CFR 431.214, a recipient of benefits is entitled to receive continuing benefits if the Department:

(a) Receives a request for a hearing from the recipient within 10 days of the mailing of the notice of the action; and

(b) Determines that the action resulted from other than the application of federal or state law or policy.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

413-010-0520

Informal Conference

(1) The Department representative and the party or party’s representative may have an informal conference to discuss any of the matters listed in OAR 137-003-0575(4). The informal conference also may be used to:

(a) Provide an opportunity for the Department and the party to settle the matter;

(b) Ensure the party understands the reason for the action that is the subject of the hearing request;

(d) Give the party an opportunity to review the rules that support the Department’s action;

(e) Give the party and the Department the chance to correct any misunderstanding of the facts; and

(f) Give the Department an opportunity to review its action.

(2) The party may, at any time prior to the hearing date, request an additional informal conference with the Department representative.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 27-2011, f. 11-3-11, cert. ef. 11-4-11

413-010-0525

Burden of Proof

In any contested case covered by these rules (OAR 413-010-0500 to 413-010-0535), the party has the burden of proof.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 27-2011, f. 11-3-11, cert. ef. 11-4-11

413-010-0530

Withdrawals and Dismissals

(1) Withdrawals.

(a) A party or party’s representative may withdraw a request for a hearing orally or in writing at any time before a final order has been issued on the contested case.

(b) Following a withdrawal under subsection (a) of this section, the Department or OAH sends an order dismissing the hearing request to the party’s last known address. The party may cancel the withdrawal if a request to cancel the withdrawal is received by the Department representative up to the tenth work day following the date such an order is sent. If the party withdrew the hearing request in writing, the Department must receive a timely written request to cancel the withdrawal.

(A) The Department provides to the party the relief sought; or

(B) The Department and the party reach an agreement under ORS 183.417(3).

(2) Dismissals. An order dismissing a hearing request is issued when the party or the party’s representative does not appear at the time and place specified for the hearing.

(a) The dismissal by order is effective on the date the order is issued.

(b) The Department may reconsider and cancel the dismissal under OAR 137-003-0675 on request of the party on a timely showing that the party was unable to attend the hearing and unable to request a postponement for reasons beyond party’s reasonable control. The Department may refer the reconsideration decision to OAH.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 27-2011, f. 11-3-11, cert. ef. 11-4-11

413-010-0535

Proposed and Final Orders

(1) When the Department refers a contested case under these rules (OAR 413-010-0500 to 413-010-0535) to OAH, the Department indicates on the referral whether the Department is authorizing:

(a) A proposed order;

(b) A proposed and final order (OAR 137-003-0645(4); or

(2) During or after a contested case hearing, when it is determined that the correct application of OAR 413-020-0230, 413-090-0133, or 413-090-0150 requires the consideration of facts that differ from the facts on which the Department made a decision to deny, reduce, or terminate either a level of care payment or a level of personal care payment, the Department will reapply 413-020-0230, 413-090-0133, or 413-090-0150 based on new or different facts.

(3) When the Department authorizes either a proposed order or a proposed and final order:

(a) The party may file written exceptions and written argument to be considered by the Assistant Director for Children, Adults, and Families Division or the Assistant Director’s designee. The exceptions and argument must be received at the location indicated in the order not later than the tenth day after service of the proposed order or proposed and final order.

(b) If the 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 eleventh day after service of the proposed and final order unless the Department has issued a revised order or has notified the parties and the administrative law judge that the Department will issue the final order.

(c) 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.

(4) A request by a party for reconsideration or rehearing must be filed with the person who signed the final order within the time limits of OAR 137-003-0675.

(5) A final order should be issued or the case otherwise resolved no later than 90 days following the receipt of the request for a hearing.

(6) A final order is effective immediately upon being signed or as otherwise provided in the order.

(7) The Department reserves the right to withdraw or amend any final order issued by OAH or the Department at any time permitted by law.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 27-2011, f. 11-3-11, cert. ef. 11-4-11

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 28-2011

Filed with Sec. of State: 11-3-2011

Certified to be Effective: 11-4-11

Notice Publication Date: 10-1-2011

Rules Amended: 413-090-0000, 413-090-0005, 413-090-0010, 413-090-0021, 413-090-0030, 413-090-0040, 413-090-0050

Rules Repealed: 413-090-0000(T), 413-090-0005(T), 413-090-0010(T), 413-090-0021(T), 413-090-0030(T), 413-090-0040(T), 413-090-0050(T)

Subject: These rules about the responsibilities of the Department on behalf of a child or young adult to provide foster care maintenance payments to a certified family; an independent living housing subsidy to an eligible child or young adult who is in the legal custody of the Department, living independently; and payment to an individual eligible for a Chafe housing payment of the Department are being amended to lower payments due to budget constraints faced by the Department and to implement provisions of the Fostering Connections to Success and Increasing Adoptions Act of 2008. These amendments also make permanent changes adopted by temporary rule on June 30, 2011.

OAR 413-090-0000 is also being amended to clarify the purposes of OAR 413-090-0000 to 413-090-0050.

OAR 413-090-0005 about the definitions of key terms used in these rules is also being amended to add current and remove outdated definitions of certain terms used throughout these rules.

OAR 413-090-0010 about payments authorized by the Department is also being amended to state the reduced foster care base rate changes approved during the 2011 Legislative session. The reduced rates will start January 1, 2012. This rule is also being amended to revise the eligibility criteria for payments the Department will authorize for family foster care, level of care payments, and payment for a child of a dependent parent, and the payments to youth eligible for a Chafee housing payment or independent living housing payment.

OAR 413-090-0021 about periodic review of eligibility for level of care payments is also being amended to set out the effective date of changes in payments and when a CANS screening is conducted.

OAR 413-090-0030 about payment for temporary absences from family foster care is also being amended to revise and clarify the criteria for receiving these payments.

OAR 413-090-0040 about payment during adoptive supervision is also being amended to clarify the type of payments and criteria for receiving them.

OAR 413-090-0050 about payment to a certified family moving to another state is also being amended to clarify the payments provided.

Rules Coordinator: Annette Tesch—(503) 945-6067

413-090-0000

Purpose

These rules, OAR 413-090-0000 to 413-090-0050, describe the responsibilities of the Department for payment of the following costs on behalf of a child or young adult.

(1) Foster care maintenance payments to a certified family;

(2) An independent living housing subsidy to an eligible child or young adult who is in the legal custody of the Department, living independently; and

(3) Payment to an individual eligible for a Chafee housing payment.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 9-2003, f. & cert. er. 1-7-03; CWP 20-2006(Temp), f. & cert. ef. 10-13-06 thru 4-10-07; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 9-2009(Temp), f. & cert. ef. 8-12-09 thru 12-28-09; CWP 10-2009(Temp), f. & cert. ef. 9-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 28-2011, f. 11-3-11, cert. ef. 11-4-11

413-090-0005

Definitions

The following definitions apply to OAR 413-090-0000 to 413-090-0050:

(1) “Adoption assistance payment” means a monthly payment made by the Department to the pre-adoptive family or adoptive family on behalf of an eligible child or young adult.

(2) “Base rate payment” means a payment to the foster parent or relative caregiver for the costs of providing the child or young adult with the following:

(a) Food — including the cost to cover a child or young adult’s special or unique nutritional needs;

(b) Clothing — including purchase and replacement;

(d) Daily supervision — including teaching and directing to ensure safety and well-being at a level which is appropriate based on the chronological age of the child or young adult;

(e) Personal incidentals — including personal care items, entertainment, reading materials, and miscellaneous items; and

(3) “CANS screening” means Child and Adolescent Needs and Strengths screening, a process of gathering information on a child or young adult’s needs and strengths used for one or more of the following purposes:

(a) Identifying case planning, service planning, and supervision needs of the child or young adult in substitute care with a certified family; and

(b) Determining the level of care payment while in substitute care with a certified family; and

(c) Determining the level of care payment included in an adoption assistance agreement or guardianship assistance agreement.

(4) “Certified family” means an individual or individuals who hold a current Certificate of Approval from the Department to operate a home to provide care, in the home in which they reside, to a child or young adult in the care or custody of the Department.

(5) “Chafee housing payment” means a payment to assist in covering the costs of room and board made to an eligible individual between 18 and 20 years of age who was discharged from the care and custody of the Department or one of the federally recognized tribes on or after reaching 18 years of age.

(6) “Child” means a person under 18 years of age.

(7) “Department” means the Department of Human Services, Child Welfare.

(8) “Dependent parent” means a child or young adult in the legal custody of the Department who is the parent of a child.

(9) “Enhanced shelter care payment” means a limited term payment provided to a certified family when a child or young adult in the care or custody of the Department moves to a certified family’s home from a placement with a Behavior Rehabilitation Service provider and there is no current level of care determination applicable to the child or young adult.

(10) “Enhanced supervision” means the additional support, direction, observation, and guidance necessary to promote and ensure the safety and well-being of a child or young adult when the child or young adult qualifies for a level of care payment.

(11) “Foster care payments” means one or more of the following payments to a certified family, authorized at rates established by the Department, for the board and care of a child or young adult for whom the Department has placement and care responsibility:

(a) The base rate payment;

(b) The level of care payment, if any;

(d) Mileage reimbursement, paid at the current Department mileage reimbursement rate paid to child welfare staff, for transportation of a child or young adult remaining in the same school he or she was attending prior to placement in substitute care; and

(e) The board and care of the child of a dependent parent, unless the dependent parent receives cash benefits under a program administered by the Department of Human Services under chapter 461 of the Oregon Administrative Rules.

(12) “Guardian” means an individual who has been granted guardianship of the child through a judgment of the court.

(13) “Guardianship assistance agreement” means a written agreement, binding on the parties to the agreement, between the Department and the potential guardian or guardian setting forth the assistance the Department is to provide on behalf of the child or young adult, the responsibilities of the guardian and the Department, and the manner in which the agreement and amount of assistance may be modified or terminated.

(14) “Independent living housing subsidy” means a payment to assist in covering the costs of room, board, or other monthly expenses made to an eligible individual who is in the care and custody of the Department and living independently.

(15) “Level of care payment” means the payment provided to an approved or certified family, a guardian, a pre-adoptive family or an adoptive family based on the need for enhanced supervision of the child or young adult as determined by applying the CANS algorithm to the results of the CANS screening.

(16) “Potential guardian” means an individual who:

(a) Has been approved by the Department or participating tribe to be a child’s guardian; and

(b) Is in the process of legalizing the relationship to the child through the judgment of the court.

(17) “Pre-adoptive family” means an individual or individuals who:

(a) Has been selected to be a child’s adoptive family; and

(b) Is in the process of legalizing the relationship to the child through the judgment of the court.

(18) “Shelter care payment “ means a payment provided to a certified family during the first 20 days of substitute care for a child or young adult in the care or custody of the Department.

(19) “Young adult” means a person aged 18 through 20 years.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

Hist.: SOSCF 20-1999, f. 9-15-99, cert. ef. 9-20-99; CWP 9-2003, f. & cert. er. 1-7-03; CWP 20-2006(Temp), f. & cert. ef. 10-13-06 thru 4-10-07; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 10-2009(Temp), f. & cert. ef. 9-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 28-2011, f. 11-3-11, cert. ef. 11-4-11

413-090-0010

Authorized Payments

(1) Family Foster Care.

(a) Shelter care payment. The Department reimburses a certified family a shelter care payment on behalf of a child or young adult during the first twenty days of substitute care in a certified family home after the Department has obtained physical or legal custody of the child or young adult. The daily shelter care payment is:

(A) $24.60 for a child five years or younger;

(B) $28.00 for a child 6 through 12 years of age; and

(b) Base rate payment. The Department reimburses a certified family a base rate payment on behalf of a child or young adult in the Department’s physical or legal custody when a child or young adult is placed in the certified family’s home.

(A) Payment is made on a monthly basis, or prorated for a portion of a month, when the base rate payment is for less than all days in the month, and made after the month in which the care has been provided.

(B) The base rate payment starts the twenty-first day of a child’s placement in substitute care and includes the day the child or young adult enters the home, but excludes the day the child or young adult leaves the home.

(i) Prior to January 1, 2012, the base rate payment is $639 per month for a child five years or younger. Starting January 1, 2012, the base rate payment is $575 per month for a child five years or younger.

(ii) Prior to January 1, 2012, the base rate payment is $728 per month for a child 6 through 12 years of age. Starting January 1, 2012, the base rate payment is $655 per month for a child 6 through 12 years of age.

(iii) Prior to January 1, 2012, the base rate payment is $823 per month for a child or young adult 13 through 20 years of age. Starting January 1, 2012, the base rate payment is $741 for a child or young adult 13 through 20 years of age.

(D) The Department does not reimburse the base rate payment to a certified family when reimbursement for shelter care payment or enhanced shelter care payment applies.

(c) Enhanced shelter care payment. The Department reimburses a certified family an enhanced shelter care payment rate on behalf of a child or young adult during the first 20 days of substitute care with a certified family after a child or young adult has been in placement with a Behavior Rehabilitation Service provider and there is no current level of care payment determination applicable to the child or young adult. The daily enhanced shelter care payment is:

(A) $29.40 for a child five years or younger;

(B) $33.50 for a child 6 through 12 years of age; and

(d) Mileage reimbursement. The Department reimburses a certified family for mileage, paid at the current Department mileage reimbursement rate paid to child welfare staff, when the certified family must provide transportation for a child or young adult in order to remain in the same school he or she was attending prior to placement in substitute care.

(2) Level of care payment.

(a) The Department reimburses a level of care payment to a certified family on behalf of a child or young adult when the CANS screening results indicate the child or young adult has enhanced supervision needs.

(b) The initial level of care payment to a certified family begins:

(A) No earlier than the twenty first day of substitute care; or

(B) Ninety days prior to the date an initial CANS screening was approved for a child or young adult in substitute care over 111 days.

(c) A level of care payment to a certified family may commence the first day following the end of enhanced shelter care payment.

(d) The Foster Care Program Manager may approve commencing the level of care payment beyond the timeframes in subsections (b) and (c) of this section when a delay in scheduling, completing, scoring or approving the CANS screening results in a potential loss or interruption of a level of care payment.

(e) When the CANS screening results indicate the child or the young adult eligible for adoption assistance or guardianship assistance needs enhanced supervision, the Department includes the level of care payment in:

(A) An adoption assistance agreement with a pre-adoptive family or an adoptive family pursuant to Child Welfare Policy I-G.3.1, “Adoption Assistance” OAR 413-130-0000 to 413-130-0130; or

(B) A guardianship assistance agreement with a potential guardian or a guardian pursuant to Child Welfare Policy I-E.3.6.2, “Guardianship Assistance”, OAR 413-070-0900 to 413-070-0979.

(f) A CANS screener rates each element of a child or young adult’s behavior and functioning through the CANS screening on a scale of zero to three and the ratings determine whether a child or young adult meets the criteria for one of three levels of care. These ratings are determined using the following exhibits, which by this reference are incorporated into this rule:

(A) DHS 9601 — Child and Adolescent Needs and Strengths Comprehensive Screening Tool Ages Birth through Five, adopted January 5, 2009 and revised in June, 2011.

(B) DHS 9602 — Child and Adolescent Needs and Strengths Comprehensive Screening Tool Ages Six through Twenty, adopted January 5, 2009 and revised in June 2011.

(D) The Department maintains these documents on the Department’s website. Printed copies of all three exhibits may be obtained by contacting the Department of Human Services, Children, Adults and Families, ATTN: Level of Care Manager, 500 Summer Street NE, E93, Salem, OR 97301.

(g) The level of care payment is:

(A) $212 per month for Level 1 (moderate needs).

(B) $414 per month for Level 2 (intermediate needs).

(3) The Department reimburses a certified family an applicable base rate payment for a child of a dependent parent when both are living with the certified family unless the dependent parent receives a TANF grant under programs administered by the Department of Human Services under chapter 461 of the Oregon Administrative Rules or has other means of financial support.

(4) The Department reimburses a Chafee housing payment or an independent living housing subsidy to an eligible individual up to a maximum of $600 per month of eligibility pursuant to Child Welfare Policy I-B.2.3.5, “Youth Transitions”, OAR 413-030-0400 to 413-030-0460.

(5) Payments prohibited. The Department may not authorize payment for the care of a child or young adult to more than one certified family per day.

(6) A payment by the Department under this rule is inalienable by any assignment or transfer and exempt from execution, levy, attachment, and garnishment under the laws of the state of Oregon.

[Publications: Publications referenced are available from the agency.]

[ED. NOTE: Exhibits referenced are available from the agency.]

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335, 418.340, 418.470 & 418.625

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 2-1999, f. & cert. ef. 3-5-99; SOSCF 20-1999, f. 9-15-99, cert. ef. 9-20-99; CWP 9-2003, f. & cert. er. 1-7-03; CWP 20-2003(Temp), f. 1-31-03 thru 7-30-03; CWP 27-2003, f. & cert. ef. 7-31-03; CWP 34-2003(Temp), f. 10-31-03, cert. ef. 11-1-03 thru 4-28-04; CWP 7-2004, f. & cert. ef. 4-1-04; CWP 20-2006(Temp), f. & cert. ef. 10-13-06 thru 4-10-07; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; CWP 28-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 10-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 9-2009(Temp), f. & cert. ef. 8-12-09 thru 12-28-09; CWP 10-2009(Temp), f. & cert. ef. 9-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 28-2011, f. 11-3-11, cert. ef. 11-4-11

413-090-0021

Periodic Review of Eligibility for Level of Care Payments

(1) When the Department conducts a CANS screening for a child or young adult in substitute care under subsection (1)(b) of OAR 413-020-0230 and the results indicate the child or young adult’s level of care has changed, the Department adjusts the child or young adult’s level of care payment as follows:

(a) When a level of care payment increases, change in payment begins the first day of the month in which the increased level of care payment was approved.

(b) When a level of care payment decreases, change in payment begins the first day of the month following the month in which the decreased level of care payment was approved unless continuing benefits have been requested through a request for a contested case hearing.

(2) When the Department determines, denies, adjusts or terminates a level of care payment to a child or young adult living with a certified family, the Department follows Child Welfare Policy I-A.5.2, “Contested Case Hearings” OAR 413-010-0500 to 413-010-0535.

(3) A CANS screening may be conducted for a child or young adult living with a potential guardian, a guardian, a pre-adoptive family, or an adoptive family when a referral is received pursuant to OAR 413-020-0230(3).

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 28-2011, f. 11-3-11, cert. ef. 11-4-11

413-090-0030

Payment for Temporary Absences from Family Foster Care

(1) The Department may continue the base rate payment and any level of care payment to the certified family during a child or young adult’s temporary absence from the home for 14 days or less, when:

(a) The plan is for the child or young adult to return to the care of the same certified family; and

(b) No other certified family is receiving a base rate payment or level of care payment for the child or young adult during the period of the absence.

(2) Hospitalization. The Department may continue the base rate payment and level of care payment to the certified family when the child or young adult requires hospitalization for medical treatment and the certified family continues to exercise caregiving responsibilities in anticipation of the return of the child or young adult. Hospitalization for medical treatment is not considered a substitute care placement with a duplicate payment.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 20-1999, f. 9-15-99, cert. ef. 9-20-99; CWP 9-2003, f. & cert. er. 1-7-03; CWP 20-2006(Temp), f. & cert. ef. 10-13-06 thru 4-10-07; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 9-2009(Temp), f. & cert. ef. 8-12-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 28-2011, f. 11-3-11, cert. ef. 11-4-11

413-090-0040

Payments During Adoptive Supervision

When a child is free for adoption and placed in an approved or certified family’s home designated by the Department’s Adoption Program Manager as the child’s pre-adoptive family, the Department pays base rate payment and any level of care payment to the pre-adoptive family until the adoption assistance payment commences. See Child Welfare Policy I-G.3.1, “Adoption Assistance”, OAR 413-130-0000 to 413-130-0130 for the adoption assistance eligibility requirements of the Adoption Assistance Program.

[ED. NOTE: Exhibits referenced are available from the agency.]

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 20-1999, f. 9-15-99, cert. ef. 9-20-99; CWP 9-2003, f. & cert. er. 1-7-03; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 28-2011, f. 11-3-11, cert. ef. 11-4-11

413-090-0050

Out-of-State Payment to a Certified Family Moving to Another State

(1) A certified family who receives Department approval to move out-of-state with a child or young adult who the Department has placed in the home may continue to receive base rate and level of care for that child or young adult for up to 180 days or until licensed or certified in the receiving state, whichever is earlier.

(2) The Foster Care Program Manager or Foster Care Program Assistant Manager may extend the 180 day limit for continuing to receive current base rate payment and level of care payment when the licensure or certification process in the receiving state has not been completed due to circumstances beyond the control of the Department.

(3) Once the home is licensed or certified in the receiving state, the Department authorizes payment at Oregon’s established base rate payment and level of care payment rates.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 20-1999, f. 9-15-99, cert. ef. 9-20-99; CWP 9-2003, f. & cert. er. 1-7-03; CWP 20-2006(Temp), f. & cert. ef. 10-13-06 thru 4-10-07; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 28-2011, f. 11-3-11, cert. ef. 11-4-11

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, 2010.