Chapter 4723-16 Hearings

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

(1) “Respondent” means the person to whom the board has issued a notice of opportunity for 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.

(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) Filing or mailing a motion or notice for a board adjudicatory proceeding shall be in accordance with the following:

(1) Any notice specifying the date, time, and place for a hearing shall be mailed by certified mail to respondent and, if applicable, to counsel for respondent who has filed a notice of appearance in accordance with rule 4723-16-02 of the Administrative Code.

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

(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 or the hearing examiner in determining the admissibility of evidence but shall not be controlling. The board or hearing examiner may permit the use of electronic or photographic means for presentation of evidence.

HISTORY: Replaces: Part(s) of 4723-13-10; Eff 2-1-00; 2-1-02; 2-1-04; 4-1-05

Promulgated Under: 119.03

Statutory Authority: 4723.07

Rule Amplifies: 4723.28

R.C. 119.032 review dates: 10/15/2004 and 02/01/2010

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

(B) When respondent is represented by an attorney, the attorney shall file a written notice of appearance with the board. The attorney who has 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.

HISTORY: Eff 2-1-00; 2-9-05

Rule promulgated under: RC 119.03

Rule authorized by: RC 4723.07

Rule amplifies: RC 4723.28

R.C. 119.032 review dates: 10/15/2004 and 02/09/2010

(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 hearing examiner assigned to the proceeding may continue the hearing. If a continuance is granted, the board 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 proper diligence is presented. 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 will only be granted, if 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. The decision with respect to a request for an extension of time shall be rendered by the hearing examiner or the board.

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

(1) The party filing the motion makes a showing of reasonable cause and proper diligence; and

(2) If the extension of time will result in a delay in the proceedings, the respondent’s 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 or the hearing examiner may consider whether the respondent holds an active license or certificate to practice in Ohio.

HISTORY: Eff 2-1-00; 2-1-03; 2-9-05

Rule promulgated under: RC 119.03

Rule authorized by: RC 4723.07

Rule amplifies: RC 4723.28

R.C. 119.032 review dates: 10/14/2004 and 02/09/2010

(A) Except as otherwise provided under 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 in accordance with this rule.

(B) A written motion shall state with particularity the particular relief sought and shall be accompanied by a memorandum stating the grounds for the motion and citing the authorities relied upon. Except in the case of a summary suspension pursuant to section 4723.281 of the Revised Code, 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 or hearing examiner expressly grants an exception.

(C) A response to a motion may be filed within ten days after service of a motion, or such other time as is fixed established by the board or hearing examiner. A movant may reply to a response to a motion may only be made with the permission of the board or hearing examiner.

(D) The board or hearing examiner shall issue a written ruling rule on a written motion in writing and shall issue a copy of the ruling to respondent or respondent’s each representative of record and to the assistant attorney general representing the state. The board or hearing examiner shall include in each written ruling on a motion a short statement setting forth the reason for the ruling.

(E) The ruling in on any oral motion made at a hearing shall be included in the record of the hearing.

HISTORY: Eff 2-1-00; 2-9-05

Rule promulgated under: RC 119.03

Rule authorized by: RC 4723.07

Rule amplifies: RC 4723.28

R.C. 119.032 review dates: 02/09/2010

(A) In any case in which a hearing has been requested in accordance with Chapter 119. of the Revised Code, any representative of record may serve upon the opposing representative of record a written request for a list of witnesses and copies of documents 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 in no case later than two weeks prior to the hearing. In cases of summary suspensions, the exchange of lists of witnesses and documents intended to be introduced at hearing shall be completed as soon as possible, but in no case later than three days prior to the hearing. If a representative of record fails to comply with the request, the opposing representative of record may request, and a hearing examiner may grant, a motion to exclude from the hearing the testimony and documents that were the subject of the request.

(B) Upon the motion of any representative of record, the hearing examiner shall issue a scheduling order that may include but need not be limited to:

(1) A schedule by which the parties shall exchange 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.

(C) At any time prior to a hearing, the hearing examiner may direct participation by the representatives of record in a prehearing conference. Such conference may be initiated by the hearing examiner or upon the motion of either representative of record. A prehearing conference may be held for reasons including but not limited to:

(1) Identification of issues;

(2) Obtaining stipulations and admissions;

(3) Agreements limiting the number of witnesses;

(4) Discussion of documents, exhibits, and witness lists;

(5) Estimating the time necessary for the hearing; and

(6) Discussion of any other matter tending to expedite the proceedings.

(D) The hearing examiner may issue such orders related to preparation for the hearing and the conduct of the hearing that, in the judgment of the hearing examiner, facilitate the just and efficient disposition of the subject of the hearing.

(E) Any document that is a patient record or that contains information that is required to be kept confidential pursuant 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 all confidential or identifying information is redacted.

HISTORY: Eff 2-1-00; 2-9-05

Rule promulgated under: RC 119.03

Rule authorized by: RC 4723.07

Rule amplifies: RC 4723.28

R.C. 119.032 review date: 02/09/2010

(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.

HISTORY: Eff 2-1-00; 2-9-05

Rule promulgated under: RC 119.03

Rule authorized by: RC 4723.07

Rule amplifies: RC 4723.28

R.C. 119.032 review date: October 14, 2004 and 02/09/2010

(A) The board or hearing examiner may admit evidence of any prior action taken by the board 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 may consider factors including, but not limited to, the following:

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

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

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

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

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

HISTORY: 2/1/00 Replaces: 4723-16-07 Eff 04/01/2005

Promulgated Under: 119.03

Statutory Authority: 4723.07

Rule Amplifies: 4723.28

R.C. 119.032 review dates: 02/01/2010

(A) Upon written request by respondent’s representative of record, 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.

(B) Each subpoena request shall specify the name and address of the individual to be served and the date, time, and place the individual served is to appear with respect to the production of books, records, or papers, such request shall specify the person who is to produce the documents at hearing and the documents to be produced. The board shall not be responsible for acquiring the address of any individual who respondents’ representative of record requests to be subpoenaed.

(C) Except as otherwise approved by the board or hearing examiner, a subpoena request shall be filed with the board at least thirty days in advance of the requested date of compliance. Unless a subpoena is challenged pursuant to paragraph (D) or (F) of this rule, the board shall issue each subpoena requested by respondent’s representative of record within ten business days of request.

(D) If the number of subpoenas requested by respondent’s representative of record appears to be unreasonable, the board or hearing examiner may require a showing of necessity for the subpoenas, and in the absence of such a showing, the board or hearing examiner may limit the number of subpoenas issued.

(E) Upon agreement of the parties, the board 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.

(F) If a motion to quash is filed and a showing is made that a subpoena places an undue burden on a witness, the board 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 or hearing examiner may excuse the witness from complying with 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 or hearing examiner shall consider the magnitude of the burden on the witness and the materiality of the witness’s testimony.

(G) At any point after a hearing has commenced, the board or hearing examiner may order the issuance of a subpoena to compel the attendance and testimony of a witness or production of books, records, or papers.

HISTORY: Eff 2-1-00; 2-9-05

Rule promulgated under: RC 119.03

Rule authorized by: RC 4723.07

Rule amplifies: RC 4723.28

R.C. 119.032 review dates: 10/15/2004 and 02/09/2010

(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 by the hearing examiner prior to the completion of deliberations on the pending adjudication.

HISTORY: Eff 2-1-00; 2-9-05

Rule promulgated under: RC 119.03

Rule authorized by: RC 4723.07

Rule amplifies: RC 4723.28

R.C. 119.032 review date: 02/09/2010

(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.

(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 both ratified by the board and signed by respondent and the president of the board.

HISTORY: Eff 2-1-00; 2-1-03; 2-9-05

Rule promulgated under: RC 119.03

Rule authorized by: RC 4723.07

Rule amplifies: RC 4723.28

R.C. 119.032 review dates: 10/15/2004 and 02/09/2010

Rescinded eff 2-9-05

(A) A respondent’s representative of record shall be permitted to address the board at the time of the board’s consideration of the report and recommendation, provided that the respondent’s representative of record has filed with the board a written request no fewer than seven days prior to the date the report and recommendation is to be considered.

(B) If a respondent’s 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.

HISTORY: 2/1/00, 2/1/01, 2/1/03; Replaces: 4723-16-04 (part) eff. 2-9-05

Rule promulgated under: RC 119.03

Rule authorized by: RC 4723.07

Rule amplifies: RC 4723.28

RC 119.032 review dates: 02/09/2010