(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 shallis 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 shallis 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 shallare to be followed:
(1)The attorney
general, or assistants or special counsel designated by the attorney general, shallwill 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
shallis 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 shallis 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 shallis 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 shallare 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 cross-examination, 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 shallis to
be attached to the brief or memorandum containing the citation.
(b)All briefs,
memoranda, motions or other pleadings shallare 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 (7/1/2016)(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 shallare to be on eight-and-one-half-inch by eleven-inch
paper, and
double-spaced and can be in electronic format.
(e)All orders,
reports, recommendations, and rulings issued by the hearing examiner shallare to be signed,
dated, and filed with the depository agent.
(F)Pre-hearing
conferences
Reasonable notice of all pre-hearing conferences shallis 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 shallis 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 shallare to
file a final pre-hearing questionnaire at least ten business days before the
final hearing. The questionnaire shallis 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 shallis 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.
Effective: 1/1/2024
Five Year Review (FYR) Dates: 10/13/2023 and 01/01/2029
Certification: CERTIFIED ELECTRONICALLY
Date: 12/18/2023
Promulgated Under: 119.03
Statutory Authority: 5101.02
Rule Amplifies: 119.06, 5104.04, 5104.03, 5103.12, 5103.03,
5101.24, 1703.19, 1701.07, 119.09, 119.07
Prior Effective Dates: 01/01/1983, 01/10/1987, 12/01/1987
(Emer.), 02/15/1988, 02/01/1999, 04/01/2004, 10/01/2008, 02/28/2014, 01/01/2019