Current through all regulations passed and filed through September 16, 2024
(A)
Initial scheduling of the hearing
(1) When an
affected party timely requests a hearing, ODJFS will set the date, time, and
place for the hearing and notify the appellant of the scheduling. ODJFS will
initially schedule the hearing not earlier than seven calendar days but not
later than fifteen days after the hearing was requested. The first notification
concerning a scheduled hearing will be written and sent by registered mail,
return receipt requested. All subsequent letters and notices will be sent by
ordinary mail.
(2) Nothing in this
rule is
to be construed so as to prevent ODJFS from postponing and rescheduling
any hearing upon its own motion or upon the motion of any appellant who can
show good cause for such a request.
(3) Nothing in this rule
is to be
construed from preventing ODJFS and the appellant from entering into a written
agreement establishing the time, date, and place of the hearing.
(B) Joinder of individual cases
On its own motion, or on motion of the appellant, ODJFS or the
hearing examiner may join any individual cases where there exist incidents of
common ownership or interest and where joinder would be appropriate for
efficient and economic fairness to the parties.
(C) Computation of time deadlines
Section
1.14 of the Revised Code
controls the computing of time deadlines imposed by Chapter 119. of the Revised
Code and Chapter 5101:6-50 of the Administrative Code. The time within which an
act is required by law to be completed is computed by excluding the first day
and including the last day. When the last day falls on a Saturday, Sunday, or
legal holiday, the act may be completed on the next succeeding day that is not
a Saturday, Sunday, or legal holiday. When the last day to perform an act that
is required by law is to be performed in a public office, and that public
office is closed to the public for the entire day or before its usual closing
time for that day, then the act may be performed on the next succeeding day
that is not a Saturday, Sunday, or legal holiday.
(D) Rules of practice in hearings conducted
under this chapter
In all hearings conducted under Chapter 5101:6-50 of the
Administrative Code where a stenographic record is taken and where the
stenographic record may be the basis of an appeal to a court of law, the
following rules of practice are to be followed:
(1) The attorney general, or assistants or
special counsel designated by the attorney general, will represent
ODJFS. The director of ODJFS may designate members of ODJFS to assist the
attorney general in the preparation and presentation of ODJFS cases and to be
present at all times during the hearing and any pre-hearing
conferences.
(2) Any person not
appearing pro se and any corporation, partnership, association, or other entity
is to be
represented by an attorney admitted to the practice of law in this state.
Persons authorized to practice law in any other jurisdiction may be permitted
to represent an appellant before ODJFS upon the motion of an attorney licensed
to practice before the courts of this state. When the appellant is represented
by more than one attorney, one attorney is to be
designated by the appellant as "trial counsel" and that attorney is deemed the
appellant's attorney of record and is primarily responsible for the appellant's
case at the hearing. No attorney representing an appellant is permitted to
withdraw from any hearing proceeding before ODJFS without prior notice being
served upon ODJFS and prior approval by the hearing examiner.
(E) Authority of hearing examiners
appointed by ODJFS
The director may assign a hearing examiner to conduct any
hearing held subject to Chapter 5101:6-50 of the Administrative Code. Any
person assigned to be a hearing examiner is to be
admitted to the practice of law in the state of Ohio and have such other
qualifications as the director deems necessary. The hearing examiner may be an
employee of ODJFS or under contract to ODJFS. The hearing examiner has the same
powers as granted to ODJFS in conducting the hearing. These powers include, but
are not limited to, the following:
(1)
The general authority to regulate the course of the hearing and to issue orders
governing the conduct of the hearing.
(2) The authority to administer oaths or
affirmations, order the production of documents and the attendance of
witnesses, call and examine witnesses in a reasonable and impartial manner, and
to determine the order in which the participants to a hearing
are to
present testimony and be examined in a manner consistent with essential
fairness and justice.
(3) The
authority to pass upon the admissibility of evidence, and rule on objections,
procedural motions, and other procedural matters.
(4) The authority to issue orders intended to
facilitate settlement of the case, including the scheduling of settlement
conferences, directing the exchange of offers and demands, and any other
actions that may facilitate the prompt resolution of disputed
matters.
(5) The authority to hold
one or more pre-hearing conferences of the participants for the purpose of
resolving issues that can be resolved by the participants including
facilitation of a settlement, identifying the witnesses to be presented and the
subject of their testimony, discussing possible admissions or stipulations
regarding the authenticity of records, identifying and marking exhibits, and
ruling on any procedural motions of the participants, resolving outstanding
discovery claims, and clarifying the issues to be addressed at the hearing, and
discussing any other matters deemed appropriate by the hearing examiner for the
thorough and expeditious preparation and disposition of the case.
(6) The authority to take such other actions
as might be necessary to avoid unnecessary delay, prevent presentation of
irrelevant or cumulative evidence, prevent argumentative, repetitious, or
irrelevant examination or crossexamination, and to assure that the hearing
proceeds in an orderly and expeditious manner.
(7) Nothing in this rule nor in any other
ODJFS rule is to be construed as granting a hearing examiner the authority to
dismiss any hearing. Nothing in this rule nor in any other ODJFS rule limits
the director's authority to withdraw a proposal to enter an order of
adjudication or limits the authority of the director to define the scope of any
hearing.
(8) Upon the motion of the
hearing examiner, ODJFS, or the appellant, the hearing examiner may require the
submission of briefs and memoranda at any time during the proceeding. The
hearing examiner may limit these filings to one or more specific issues and may
prescribe procedures and time schedules for their submission. All briefs,
memoranda, motions, or other pleadings are subject to the following
requirements:
(a) If any unreported court
decision is cited in any brief or memorandum, a copy of such decision
is to be
attached to the brief or memorandum containing the citation.
(b) All briefs, memoranda, motions or other
pleadings are
to be filed with the depository agent within three days after service. A
certificate of service is to be attached attesting both to the service of a
copy of the pleading on the opposing party and the provision of a copy to the
hearing examiner. Service is governed by rule 5 (7/1/2023)
of the Ohio Rules of Civil Procedure except that any reference to "court" in
rule 5 will be interpreted to refer to the "depository agent."
(c) Only those pleadings, orders, and other
papers filed with the depository agent will be a part of the official
record.
(d) All briefs, memoranda,
motions, or other pleadings and papers are to be on
eight-and-one-half-inch by eleven-inch paper,
double-spaced and can be in electronic format.
(e) All orders, reports, recommendations, and
rulings issued by the hearing examiner are to be
signed, dated, and filed with the depository agent.
(F) Pre-hearing conferences
Reasonable notice of all pre-hearing conferences
is to be
provided to participants in advance of each such conference. Unless otherwise
ordered for good cause shown, failure to attend a pre-hearing conference
precludes objections to rulings made at such conference, including rulings
relating to the merits of the appeal.
(1) The first pre-hearing conference is set
by ODJFS. ODJFS and the appellant each may file a pre-hearing questionnaire if
directed by ODJFS in the letter scheduling such conference. The hearing
examiner may require the submission of a pre-hearing questionnaire before the
scheduled date of any pre-hearing conference or before any scheduled
hearing.
(2) Following the
conclusion of any pre-hearing conference, the hearing examiner conducting the
conference is
to issue an appropriate pre-hearing report and order reciting or
summarizing any agreements reached or rulings made. Unless otherwise ordered
for good cause shown, any order issued is binding upon all participants in the
hearing, and such orders control the subsequent course of the proceeding.
Hearing examiner orders are to be in writing, furnished to the appellant and
ODJFS, and be part of the record of the case. However, the hearing examiner may
modify such orders if, at or before the hearing, modification becomes necessary
or assists to preserve the essential fairness and progress of the
hearing.
(3) The appellant and
ODJFS are
to file a final pre-hearing questionnaire at least ten business days
before the final hearing. The questionnaire is to include,
at a minimum, a statement of the questions of law or fact to be decided at the
hearing, a list of expert and non-expert witnesses, a list of all exhibits
expected to be introduced at the hearing, suggested stipulations, estimated
number of days required for hearing, and a statement that all discovery, when
applicable, and motion proceedings have been completed or that a reasonable
opportunity has been afforded. If discovery is incomplete, a statement of an
agreed cut-off date is to be included. The questionnaire
is to be
signed by trial counsel. No further additions to the proposed list of witnesses
and exhibits will be permitted without good cause shown and the permission of
the hearing examiner or the director.
(4) ODJFS, upon its own motion or that of the
hearing examiner, may waive any pre-hearing conference or questionnaire and may
issue a written notice to the parties scheduling the hearing and setting forth
the conditions applicable to the conduct of the hearing.
(G) Withdrawal of proposed adjudication
orders
ODJFS, upon its own motion, at any time before the issuance of
an order of adjudication, may withdraw its proposal to implement such an order
without prejudice to the rights of the parties. An appellant may withdraw a
request for a hearing only with the prior approval of the hearing
examiner.
