(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 shall 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 shall 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 willshall be followed:
(1)The attorney general,
or assistants or special counsel designated by the attorney general, willshall 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
mustshall 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 mustshall 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 mustshall 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 willshall 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 is toshall be attached to
the brief or memorandum containing the citation.
(b)All briefs, memoranda,
motions or other pleadings mustshall 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 (7/1/20127/1/2016) 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 mustshall be on eight-and-one-half-inch by eleven-inch paper
and double-spaced.
(e)All orders, reports,
recommendations, and rulings issued by the hearing examiner are toshall be signed, dated,
and filed with the depository agent.
(F)Pre-hearing conferences
Reasonable notice of all pre-hearing conferences willshall 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 willshall 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 mustshall file
a final pre-hearing questionnaire at least ten business days before the final hearing.
The questionnaire mustshall
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 mustshall 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: 1/1/2019
Five Year Review (FYR) Dates: 10/3/2018 and 01/01/2024
Certification: CERTIFIED ELECTRONICALLY
Date: 12/10/2018
Promulgated Under: 119.03
Statutory Authority: 5164.02, 5101.02
Rule Amplifies: 119.06, 5164.02, 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