Chapter 4723-16 Hearings

4723-16-01 General information.

(A) For the purpose of this chapter of the Administrative Code:

(1) "Respondent" means the person who is requesting or has requested a hearing as provided in Chapter 119. of the Revised Code.

(2) "Hearing examiner" means the attorney appointed by the board to conduct a hearing pursuant to section 119.09 of the Revised Code.

(3) "Representative of record" means the respondent or legal counsel for respondent who has filed a notice of appearance in accordance with rule 4723-16-02 of the Administrative Code or the assistant attorney general representing the state of Ohio.

(4) "Board committee" means a standing committee of not less than three board members, appointed by the board at a public meeting, to conduct administrative hearings and provide a report and recommendation to the board as set forth in rule 4723-16-13 of the Administrative Code.

(B) The compilation of all time periods set forth in this chapter of the Administrative Code shall be in accordance with section 1.14 of the Revised Code.

(C) Procedures for filing, or mailing a motion or notice related to a board hearing shallcomply with the following:

(1) Any notice specifying the date, time, and place for a hearing mailed by the board shall be mailed by certified mail, or regular mail with a certificate of mailing, to respondent and, if applicable, respondent's representative of record.

(2) The mailing date of any document mailed by the board , including but not limited to, a notice of opportunity or adjudication order, shall be the date appearing on the certified mail receipt or certificate of mailing.

(3) A document is filed with the board when the document is received and time stamped at the board office located in Columbus, Ohio.

(D) A certified copy of a conviction, plea of guilty to, or a judicial finding of guilt of any crime from a court of competent jurisdiction shall be conclusive proof of the commission of all elements of that crime.

(E) The Ohio Rules of Evidence may be taken into consideration by the board, board committee or the hearing examiner in determining the admissibility of evidence but shall not be controlling. The board, board committee or hearing examiner may permit the use of electronic or photographic means for presentation of evidence.

Effective: 02/01/2010
R.C. 119.032 review dates: 10/13/2009 and 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.28
Prior Effective Dates: 02/01/2000, 02/01/2002, 02/01/2004, 04/01/2005

4723-16-02 Hearing representation and appearances.

(A) Respondents may be self represented or may be represented by an attorney, or attorneys, admitted to the practice of law in Ohio.

(B) When respondent is represented by an attorney or attorneys, the attorney or attorneys each shall file a written notice of appearance with the board. The attorney or attorneys who have filed a notice of appearance with the board shall be considered by the board as the representative of record unless and until a written notice of withdrawal is filed with the board or until written notice of termination of representation is filed by respondent.

(C) A representative of record may present respondent's position, arguments, or contentions in writing rather than appearing in person at any hearing, provided the board has not subpoenaed respondent to appear at the hearing, and provided respondent has timely requested a hearing.

(D) Respondent is not required to appear in person at any hearing provided the board has not subpoenaed the respondent to appear at the hearing.

(E) The office of the attorney general shall identify one attorney from that office as the representative of record for purposes of service pursuant this chapter of the Administrative Code. Each assistant attorney general representing the board shall file his or her appearance in writing.

(F) Except as otherwise provided in Chapter 119. of the Revised Code, communications from the board, board committee or hearing examiner shall be sent to the representative of record for each party.

Effective: 02/01/2010
R.C. 119.032 review dates: 10/13/2009 and 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.28
Prior Effective Dates: 02/01/2000, 02/09/2005

4723-16-03 Hearing continuances and motions for extensions of time.

(A) The board may continue a hearing upon its own motion in order to more efficiently and effectively conduct its business, unless the circumstances establish that a continuance would not be in the interest of public safety.

(B) Upon written or oral motion of a representative of record, the board, board committee or hearing examiner may continue the hearing. If a continuance is granted, the board, board committee or the hearing examiner shall immediately establish a new hearing date unless otherwise agreed by the representatives of record.

(C) A hearing shall not be continued upon motion by a representative of record unless a showing of reasonable cause and due diligence is shown. Before granting a continuance, consideration shall be given to the harm to the public that may result from a delay in the proceedings.

(D) A motion for continuance filed by a representative of record fewer than five calendar days prior to the scheduled date of the hearing shall not be granted unless it is demonstrated that an extraordinary situation exists that could not have been anticipated and that would justify the granting of a continuance.

(E) Except as otherwise provided in Chapter 119. of the Revised Code or rules of the board, any motion or request for an extension of time in which to file a motion, brief, or objection, unless made upon the record at the hearing, shall be made in writing and filed with the board.

(F) No motion for an extension of time shall be granted by the board, board committee or the hearing examiner unless:

(1) The representative of record filing the motion makes a showing of reasonable cause and due diligence; and

(2) If the extension of time will result in a delay in the proceedings, the

representative of record can show that no harm to the public will result from the delay in the proceedings.

(G) In making a determination about harm to the public, the board, board committee or the hearing examiner may consider whether the respondent holds an active license or certificate to practice in Ohio.

(H) If notice of opportunity for hearing has been given to respondent according to section 119.07 of the Revised Code, and respondent has timely requested a hearing, if respondent has failed to participate in prehearing conferences, or otherwise has failed to respond to the board committee or hearing examiner, the hearing date shall not be continued based solely on the respondent's lack of participation or response.

Effective: 02/01/2010
R.C. 119.032 review dates: 10/13/2009 and 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.28
Prior Effective Dates: 02/01/2000, 02/01/2003, 02/09/2005

4723-16-04 Motions.

(A) Except as otherwise provided in Chapter 119. of the Revised Code, any motion, unless made upon the record at a hearing or as an oral motion for continuance in accordance with rule 4723-16-03 of the Administrative Code, shall be in writing and filed with the board.

(B) A written motion shall state the relief sought and shall be accompanied by a memorandum stating the grounds for the motion and citing the authorities relied upon. A motion shall be made no later than fourteen days before the scheduled date of the hearing, unless one of the following applies:

(1) The case involves a summary suspension issued pursuant to section 4723.281 of the Revised Code; or

(2) The board, board committee or hearing examiner expressly grants an exception.

(C) A response to a motion must be filed within ten days after service of a motion, or within the time frame established by the board, board committee or hearing examiner. The party who made the original motion may reply to a response to a motion only with the permission of the board, board committee or hearing examiner.

(D) The board, board committee or hearing examiner shall issue a ruling on a written motion, after considering all memoranda and supporting documentation filed with the motion, in writing, and issue copies of the ruling to each representative of record . The board, board committee or hearing examiner shall include in each written ruling a short statement setting forth the reason for the ruling.

(E) The ruling on all oral and written motions made at a hearing shall be included in the record of the hearing. The board, board committee or hearing examiner may also take motions made during a hearing under advisement and issue a written ruling at a later time.

(F) Except as otherwise provided in this chapter or Chapter 119. of the Revised Code, rulings on all motions filed after the report and recommendation is issued are to be decided by the board.

Effective: 02/01/2010
R.C. 119.032 review dates: 10/13/2009 and 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.28
Prior Effective Dates: 02/01/2000, 02/09/2005

4723-16-05 Prehearing processes.

(A) Any representative of record may serve upon the opposing representative of record a written request for a list of witnesses and copies of proposed exhibits intended to be introduced at hearing. Except in the case of summary suspensions, the opposing representative of record shall supply a list and copies to the requesting representative within a reasonable time, but not less than two weeks before the hearing date.

(B) In cases of summary suspensions, the exchange of lists of witnesses and proposed exhibits intended to be introduced at hearing shall be completed as soon as possible, but not less than three days before the hearing date.

(C) If a representative of record fails to comply with a request for, or scheduling order requiring the timely exchange of, a list of witnesses, expert witness reports, if any, or copies of proposed exhibits, the opposing representative of record may request, and, absent extraordinary circumstances, the board, board committee or hearing examiner shall grant, a motion to exclude from the hearing the testimony and proposed exhibits that were the subject of request.

(D) Upon written motion of any representative of record or upon the initiative of the board, board committee or the hearing examiner, the board, board committee or hearing examiner shall issue a scheduling order that may include but need not be limited to:

(1) A schedule for exchange of proposed hearing exhibits;

(2) A schedule for identifying lay and expert witnesses; and (3) A schedule for the exchange of written reports, if any, from expert witnesses.

(E) If expert witness testimony is proposed, the expert may submit a written report. A written report by an expert shall set forth the opinions that the expert will testify about and the basis for the opinions. In order to be admitted as evidence at hearing, the written report must be provided to the opposing representative of record not less than thirty days before the hearing date. The expert may also testify as a fact witness and is not required to submit a written report regarding non-expert testimony.

(F) At any time before a hearing, with or without motion from a representative of record, the board, board committee or hearing examiner may schedule a prehearing conference. The conference may be in person or by telephone. No witness testimony shall be taken during a prehearing conference. A prehearing conference may be held for reasons including but not limited to:

(1) Settlement negotiation;

(2) Identification of issues;

(3) Obtaining stipulations and admissions;

(4) Agreements limiting the number of witnesses;

(5) Discussion of proposed exhibits and witness lists;

(6) Estimating the time necessary for the hearing; and (7) Discussion of any other matter tending to expedite the proceedings.

(G) The Board, board committee or hearing examiner may issue orders related to preparation for the hearing and the conduct of the hearing that facilitate the just and efficient disposition of the subject of the hearing.

(H) Any document that is a patient record or that contains information that is required to be kept confidential according to any state or federal law may, for purposes of the administrative hearing only, be provided to a representative of record or to a witness in the proceeding, but shall not be disseminated to any other person unless the confidential information is redacted.

Replaces: Replaces former 4723-16-05

Effective: 02/01/2010
R.C. 119.032 review dates: 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.28
Prior Effective Dates: 02/01/2000, 02/09/2005

4723-16-06 Witnesses.

(A) A witness may be accompanied and advised by legal counsel. Participation by counsel for a witness other than the respondent, shall be limited to the protection of that witness's rights. The legal counsel shall neither examine nor cross-examine any witness.

(B) Pursuant to section 119.09 of the Revised Code, the board may institute contempt proceedings or file a motion to compel if a witness refuses to answer a question ruled proper at a hearing or disobeys a subpoena.

(C) A representative of record may move for a separation of witnesses at the hearing.

(D) Each witness who appears before the board in response to a subpoena shall receive the fees and mileage provided for under section 119.094 of the Revised Code.

Effective: 02/01/2010
R.C. 119.032 review dates: 10/13/2009 and 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.28
Prior Effective Dates: 02/01/2000, 02/09/2005

4723-16-07 Evidence or factors to be considered by the board.

(A) The board, board committee or hearing examiner shall admit evidence of any prior action taken by the board against respondent. The evidence shall include a copy of the board adjudication order, including all records incorporated within the order, and the notice of opportunity for hearing, or a copy of any consent agreement entered between the board and respondent, including all records incorporated within the consent agreement. The board, board committee or hearing examiner may admit other records related to prior board action against respondent if the evidence offered is:

(1) To prove notice to respondent that particular conduct was unacceptable;

(2) To prove a continuing problem justifying harsher discipline than might otherwise be warranted in the case;

(3) To demonstrate respondent's disregard for compliance with the laws regulating the practice of nursing or for the actions of the board; or

(4) For purposes of impeachment.

(B) When making a decision regarding disciplinary action, the board shall consider:

(1) Prior action taken by the board against respondent;

(2) Respondent's prior completion of the alternative program for chemical dependency, as set forth in paragraph (D) of rule 4723-6-04 of the Administrative Code.

(C) When making a decision regarding disciplinary action, the board may consider factors including, but not limited to, the following:

(1) Whether the act is willful, intentional, irresponsible, or unintentional;

(2) Whether the respondent failed to cooperate with the board investigation;

(3) Whether the respondent provided false, misleading or deceptive information to the board or board staff;

(4) The frequency of occurrence of the act at issue;

(5) Whether the act represents a pattern of commissions or omissions;

(6) The outcome of the actions of a licensee or certificate holder; or

(7) The level of harm or potential harm to a patient.

Effective: 02/01/2010
R.C. 119.032 review dates: 10/13/2009 and 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.28
Prior Effective Dates: 02/01/2000, 02/09/2005

4723-16-08 Subpoenas for purpose of hearing.

(A) Upon written request, filed at least thirty days before the hearing date, the board shall issue a subpoena for purposes of hearing to compel the attendance and testimony of a witness, or production of books, records or papers, at the hearing. The board, board committee or hearing examiner may approve a subpoena request filed less than thirty days before the hearing date only upon a showing by the requestor of good cause for the short time frame.

(B) Each subpoena request shall specify the name and address of the individual to be served, or the books, records or papers to be produced and name and address of the person who is to appear at the hearing to produce the books, records or papers. The board shall not be responsible for determining the address of any individual named in a subpoena.

(C) Unless a subpoena is challenged as described in paragraph (E) of this rule, the board shall issue each subpoena requested within ten business days of request. Subpoenas shall be directed to the sheriff of the county where the witness resides and returned in the same manner as a subpoena in a criminal case, as specified in section 119.09 of the Revised Code.

(D) Upon agreement of the parties, the board, board committee or hearing examiner may approve an alternative means of obtaining a witness's testimony, including, but not limited to, affidavit, deposition or testimony by telephone or other means of telecommunication.

(E) Upon written motion filed according to rule 4723-16-04 of the Administrative Code, the board, board committee or hearing examiner may order any subpoena quashed or modified for good cause shown. Good cause may be shown for reasons including but not limited to:

(1) The total number of subpoenas requested by a party is unreasonable and a showing of necessity has not been made;

(2) A subpoena does not provide a reasonable time to comply;

(3) A subpoena requires disclosure of information that is privileged or confidential under law and no exception or waiver applies;

(4) A subpoena for books, records or papers does not specify dates or time frames or specifies dates or time frames that are unreasonable or not relevant to the incidents described in the notice of opportunity for hearing; or

(5) A subpoena subjects a witness to undue burden. For purposes of this rule, the board, board committee or hearing examiner may approve an alternative means of obtaining a witness's testimony, including but not limited to, affidavit, deposition, or testimony by telephone or other means of telecommunication. If no reasonable means can be used to alleviate an undue burden on a witness, the board, board committee or hearing examiner may quash the subpoena. A finding of an undue burden requires the showing of an extraordinary hardship that is more than the usual and expected inconvenience of attending a hearing. In considering whether a burden is undue, the board, board committee or hearing examiner shall consider the magnitude of the burden on the witness and the materiality of the witness's testimony.

(F) At any point after a hearing has begun, the board, board committee or hearing examiner may order that a subpoena be issued to compel the attendance and testimony of a witness or production of books, records or papers.

Replaces: Replaces former 4723-16-08

Effective: 02/01/2010
R.C. 119.032 review dates: 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.28
Prior Effective Dates: 02/01/2000, 02/09/2005

4723-16-09 Ex parte communication.

(A) No representative of record shall communicate with a board member or hearing examiner concerning a pending adjudication without the participation of the opposing representative of record, unless the communication relates to a procedural matter.

(B) No board member or hearing examiner shall engage in communication with or on behalf of any representative of record without the participation of the opposing representative of record, unless the communication relates to a procedural matter.

(C) A board member or hearing examiner shall disclose to the representatives of record and members of the board, any communication or attempted communication that appears to violate paragraph (A) or (B) of this rule. Such disclosure shall be made prior to the completion of deliberations on the pending adjudication.

Effective: 02/01/2010
R.C. 119.032 review dates: 10/13/2009 and 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.28
Prior Effective Dates: 02/01/2000, 02/09/2005

4723-16-10 Settlements.

(A) Any matter that is the subject of an investigation may be settled at any time by the board.

(B) A settlement shall be authorized on behalf of the board by the supervising member for disciplinary matters. In the alternative, in cases assigned for hearing the board hearing committee or the hearing examiner may accept a settlement agreed upon by the parties in lieu of proceeding with the hearing.

(C) A settlement agreement shall be in writing and shall be submitted for ratification to the board.

(D) A settlement agreement shall not be effective until the agreement is ratified by the board and signed by respondent, respondent's legal counsel, in any, and the president of the board.

Effective: 02/01/2010
R.C. 119.032 review dates: 10/13/2009 and 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.28
Prior Effective Dates: 02/01/2000, 02/01/2003, 02/09/2005

4723-16-11 Prehearing processes. [Rescinded].

Rescinded eff 2-9-05

4723-16-12 Request to address the board regarding a hearing.

(A) A representative of record may be permitted to address the board at the time of the board's consideration of the report and recommendation, provided that prior to addressing the board, the representative of record has filed a written request with the board not less than seven calendar days before the board meeting.

(B) If a representative of record addresses the board, the opposing representative of record shall also be given an opportunity to address the board.

(C) Each representative of record who addresses the board shall be given not more than ten minutes in which to do so.

Effective: 02/01/2010
R.C. 119.032 review dates: 10/13/2009 and 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.28
Prior Effective Dates: 02/01/2000, 02/01/2001, 02/01/2003, 02/01/2005

4723-16-13 Authority and duties of board hearing committee or hearing examiners.

(A) Adjudication hearings may be conducted before the board, a board committee or a hearing examiner appointed by the board.

(B) The hearing examiner shall be licensed to practice law in Ohio and may be an employee of the board or an independent contractor.

(C) The board committee shall be composed of at least three board members, and one alternate, appointed by the board at a public meeting, to serve for a term of one year. One board committee member shall preside and be responsible for conduct of the hearing. The presiding board member shall also be responsible for approving the report and recommendation discussed in paragraph (F) of this rule. The board committee may request advice on legal questions from a staff attorney employed by the board, or an attorney with whom the board contracts as a hearing examiner, related to procedural or evidentiary questions or in preparation of the report and recommendation. This legal consultation shall not be deemed an ex parte communication.

(D) All hearings shall be open to the public, but the board committee or hearing examiner conducting a hearing may close the hearing to the extent necessary to protect compelling interests or to comply with statutory requirements. In the event this occurs, the board committee or hearing examiner shall state on the public record the reasons for closing the hearing.

(E) The board committee or hearing examiner shall conduct hearings so as to prevent unnecessary delay, maintain order and ensure the development of a clear record. The authority of the board committee or hearing examiner conducting a hearing includes, but is not limited to, the following:

(1) Administering oaths or affirmations;

(2) Ordering that subpoenas be issued or that depositions in lieu of live testimony be conducted;

(3) Examining witnesses and directly witnesses to testify;

(4) Making rulings on admissibility of evidence;

(5) Making rulings on procedural motions, whether such motions are oral or written;

(6) Holding prehearing conferences, as discussed in rule 4723-16-05 of the Administrative Code;

(7) Requesting briefs, before, during or after a hearing;

(8) Issuing scheduling orders for exchange of documents and filing deadlines;

(9) Determining the order of the hearing;

(10) Consolidating two or more matters involving the same respondent into one hearing;

(11) Preparing entries, proposed findings, and reports and recommendations to the board, as discussed in paragraph (F) of this rule; and (12) If the hearing is assigned to a board committee, reassigning the matter o a hearing examiner based upon a conflict in schedule, complexity of the issues involved, or for reasons of administrative efficiency.

(F) Within four months of the date an adjudication hearing is closed, the board hearing committee or hearing examiner assigned to the case shall submit a written report to the board setting forth the proposed findings of fact and conclusions of law, and a recommendation of action to be taken by the board. A copy of the written report shall be mailed by certified mail to representatives of record for both parties. Either party may, within ten days of receipt of the report and recommendation, file written objections. Written objections, if filed in a timely manner, shall be considered by the board in determining whether to approve, modify or reject the report and recommendation.

(G) At the board meeting next scheduled after the time for filing objections to a report and recommendation has passed, the board may approve, modify or reject the report and recommendation of the board committee or hearing examiner. Members of the board committee that heard a case shall abstain from voting on a matter heard as members of the board.

Effective: 02/01/2010
R.C. 119.032 review dates: 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 4723.07
Rule Amplifies: 4723.08