and Submitted December 14, 2017
of Administrative Hearings 2016OHA00101.
Hermine Hayes-Klein argued the cause and fled the briefs for
J. Maukonen, Assistant Attorney General, argued the cause for
respondent. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Ortega, Presiding Judge, and Garrett, Judge, and Powers,
Summary: Petitioner seeks review of a final order of the
Division of Medical Assistance Programs (DMAP), cancelling a
contested case hearing on whether DMAP properly denied
petitioner coverage for an out-of-hospital birth. Petitioner,
who was covered by the Oregon Health Plan, decided to have
her baby delivered at a birth center by a nurse-midwife. DMAP
denied petitioner's request to cover the delivery, and
petitioner obtained private insurance to cover the costs of
an out-of-hospital birth. Petitioner sought review of the
coverage denial, and DMAP scheduled a contested case hearing
several months after petitioner was expected to give birth.
After petitioner's child was born, DMAP cancelled the
contested case hearing, reasoning that petitioner's
challenge was "no longer hear-able" under OAR
137-003-0515(4)(b) because petitioner had not signed a form
agreeing to be personally billed by the birth center for
non-covered services under OAR 410-120-1280(3)(h). On review,
petitioner argues that the order cancelling the contested
case hearing was not supported by substantial reason.
The petition for review is moot because resolution of the
merits will no longer have a practical effect on
petitioner's rights. The only redress that petitioner
sought [291 Or.App. 670] was reimbursement for attorney's
fees under ORS 183.497, which is insufficient to render the
petition not moot. The petition for review is nevertheless
justiciable under ORS 14.175 because a future challenge to
the denial of coverage for birth services is capable of
repetition and reasonably likely to evade judicial review.
The Court of Appeals exercised its discretion to reach the
merits of the petition, and, on the merits, concluded that
DMAP's order was not supported by substantial reason. The
fact that petitioner could not be personally billed by the
birth center for medical expenses did not explain why the
hearable issues as petitioner had articulated them have been
Or.App. 671]GARRETT, J.
seeks review of a final order of the Division of Medical
Assistance Programs (DMAP), a division of the Oregon Health
Authority, cancelling a contested case hearing regarding
DMAP's denial of her request for prior authorization of
an out-of-hospital birth. We conclude that DMAP's order
cancelling the contested case hearing lacks substantial
reason. See Hooper v. Division of Medical Assistance
Programs, 273 Or.App. 73, 86, 356 P.3d 666 (2015) (a
final administrative order "must demonstrate substantial
reason, that is, the reasoning leading from the facts found
to the conclusions drawn" (citing Drew v. PSRB,
322 Or. 491, 499-500, 909 P.2d 1211 (1996))). Accordingly, we
reverse and remand.
facts pertinent to our resolution are not in dispute.
Petitioner, who was covered by the Oregon Health Plan (OHP),
became pregnant. She decided to have her baby delivered
outside of a hospital setting, at the Klamath Women's
Clinic birth center, by a nurse-midwife who was not enrolled
as a provider in petitioner's coordinated care
organization. Petitioner planned to give birth vaginally,
despite having previously given birth via caesarean section
(C-section). Petitioner submitted a prior-authorization
request for a "vaginal birth after caesarean"
(VBAC) to DMAP, which denied petitioner's request,
stating that a "previous C-section is an automatic
high-risk exclusion" for an out-of-hospital birth and
that petitioner's provider had not submitted a "plan
of care" addressing petitioner's particular needs in
light of her previous C-section. Petitioner obtained private
insurance to cover the costs of her out-of-hospital birth.
sought to appeal the denial of coverage and requested a
hearing for review of DMAP's denial of her
prior-authorization request. DMAP referred the matter to the
Office of Administrative Hearings (OAH) for a contested case
hearing. While the matter was pending before OAH, petitioner
gave birth to her child. DMAP then cancelled the contested
case hearing, leading to this petition for judicial review.
first assignment of error, petitioner challenges DMAP's
cancellation of the contested case hearing. [291 Or.App. 672]
Petitioner's second, third, and fourth assignments of
error address the substantive merits of DMAP's denial of
petitioner's prior-authorization request. As explained
below, we agree with petitioner that DMAP's order
canceling the contested hearing lacks substantial reason, and
we reverse and remand for that reason. We decline to address
petitioner's remaining assignments of error, as one
possible outcome on remand is a contested case hearing at
which the merits of DMAP's denial of the
prior-authorization request may be addressed in the first
instance. Accordingly, our discussion that follows is limited
to the narrow procedural issues concerning the cancellation
of the hearing.
baby was due in March 2016. On February 6, petitioner
received DMAP's letter denying her request for coverage
for an out-of-hospital birth, dated January 28. Petitioner
promptly sought review in a contested case hearing, and
requested expedited consideration under former OAR
410-141-0265 (Oct 31, 2013). On March 7, DMAP denied the
request for an expedited hearing, and scheduled the matter
for hearing before an administrative law judge on May 2,
2016. On March 19, petitioner gave birth at the birth center.
The costs associated with the birth were paid by the private
insurance that petitioner had obtained.
April 28, 2016, petitioner submitted her hearing memorandum
and related materials for the contested case hearing
scheduled for May 2. Later that same day, petitioner received
a letter from a DMAP official, Nino, stating that DMAP had
cancelled the hearing and withdrawn the case from OAH
pursuant to OAR 137-003-0515(4)(b) (providing that an agency
may withdraw a case before hearing if "[a]ll of issues
in the case have been resolved without ...