Chapter 4731-13 Hearings

4731-13-01 Representatives; appearances.

(A) As used in this chapter of the Administrative Code:

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

(2) "Representative of record" means one person designated by each party to be the party's agent for purposes of receipt of service pursuant to this chapter of the Administrative Code.

(B) The respondent may represent himself or herself or may be represented by an attorney or attorneys who shall be admitted to the practice of law in Ohio. Each attorney representing the respondent shall enter his or her appearance in writing. The respondent may authorize his or her attorney or attorneys to represent the respondent in all facets of a hearing before the board.

(C) If the respondent is self represented, he or she shall be deemed the representative of record for purposes of service pursuant to this chapter of the Administrative Code. If the respondent is represented by one attorney, that attorney shall be deemed the representative of record for purposes of service pursuant to this chapter of the Administrative Code. If the respondent is represented by more than one attorney, the respondent shall designate one of those attorneys as the representative of record for purposes of service pursuant to this chapter of the Administrative Code.

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

(E) The respondent shall not be required to appear personally at any hearing provided he or she has not been subpoenaed. If a respondent has not been subpoenaed to appear at hearing, a respondent may present his or her position, arguments or contentions in writing.

(F) An attorney who has filed notice of appearance with the board shall withdraw his or her representation of a respondent by filing a written notice of withdrawal with the board.

(G) An attorney who has been designated as a respondent's representative of record for purposes of service pursuant to this chapter of the Administrative Code shall remain the representative of record for that party until a representative of that party files a written notice designating another attorney or the respondent as the representative of record.

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

Eff 6-30-89; 3-27-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.07 , 119.09 , 4731.23
RC 119.032 review dates: 11/17/03, 03/25/07

4731-13-02 Filing request for hearing.

(A) In order to request a hearing pursuant to Chapter 119. of the Revised Code, the respondent or the respondent's attorney or attorneys shall file a written request for an adjudication hearing in accordance with rule 4731-13-08 of the Administrative Code. The request shall be filed within thirty days of the date of mailing of the board's notice of opportunity for hearing upon which service is perfected, of the date of personal service of the board's notice of opportunity for hearing in accordance with Chapter 119. of the Revised Code, whichever occurs first. The date of mailing of the board's notice of opportunity for hearing shall be the date postmarked on the certified mail receipt.

(B) A respondent properly filing a request for an adjudication hearing, whether personally or by attorney or attorneys, shall be entitled to such adjudication hearing within fifteen days but not sooner than seven days after such request has been filed unless both parties agree otherwise or a continuance is granted pursuant to section 119.09 of the Revised Code and rule 4731-13-06 of the Administrative Code.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.07 , 119.09
RC 119.032 review dates: 11/17/03, 03/25/07

4731-13-03 Authority and duties of hearing examiners.

(A) Adjudication hearings shall be conducted before hearing examiner pursuant to section 4731.23 of the Revised Code.

(B) All hearings shall be open to the public, but the hearing examiner conducting a hearing may close the hearing to the extent necessary to protect compelling interests and rights or to comply with statutory requirements. In the event the hearing examiner determines to close the hearing, the hearing examiner shall state the reasons therefor in the public record.

(C) The hearing examiner shall conduct hearings in such a manner as to prevent unnecessary delay, maintain order, and ensure the development of a clear and adequate record.

(D) The authority of the hearing examiner shall include, but not be limited to, authority to:

(1) Administer oaths and affirmations;

(2) Order issuance of subpoenas and subpoenasduces tecumto require the attendance of witnesses at hearings and depositions in lieu of live testimony and to require the production of evidence for hearings and depositions in lieu of live testimony;

(3) Examine witnesses and direct witnesses to testify;

(4) Make rulings on the admissibility of evidence;

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

(6) Hold prehearing conferences pursuant to rule 4731-13-19 of the Administrative Code;

(7) Request briefs before, during or following the hearing;

(8) Prepare entries, proposed findings, proposed orders or reports and recommendations pursuant to rule 4731-13-15 of the Administrative Code;

(9) Make rulings on requests to broadcast, record, televise or photograph the hearing;

(10) Take such other actions as may be necessary to accomplish the purposes of paragraph (C) of this rule; and

(11) Determine the order in which any hearing shall proceed.

(E) The authority of the hearing examiner shall not include authority to grant motions for dismissal of charges, or modify, compromise or settle charges or allegations.

(F) The hearing examiner shall have such other powers, duties, and authority as are granted by statutes or rules.

(G) All rulings on evidence and motions and on any other procedural matters shall be subject to review by the board upon presentation of the proposed findings of facts and conclusions of law of the hearing examiner. When such rulings warrant, the board may remand the matter to the attorney hearing examiner.

(H) The hearing examiner may assist the board by reviewing the evidence in matters that have been subject to a notice of opportunity for hearing but for which no timely hearing request has been filed. In such matters the hearing examiner may prepare proposed findings and a proposed order for the board's consideration.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09 , 119.07 , 4731.23
RC 119.032 review dates: 11/17/03, 03/25/07

4731-13-04 Consolidation.

Upon motion by either party, or upon the initiative of the hearing examiner, the hearing examiner may consolidate two or more hearings into a single hearing, unless either party objects for good cause .

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.07 , 119.08 , 119.09 , 4731.23
RC 119.032 review dates: 11/17/03, 03/25/07

4731-13-05 Intervention.

Petitions to intervene shall not be permitted.

R.C. 119.032 review dates: 11/17/2003 and 03/25/2007

Promulgated Under: 119.03

Statutory Authority: 4731.05

Rule Amplifies: 119.09

Prior Effective Dates: 6/30/89

4731-13-06 Continuance of hearing.

(A) Except in matters of summary suspension under division (G) or automatic suspension under division (I) of section 4731.22 of the Revised Code, the board or the board through its hearing examiner, shall initially 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 serve the interest of justice.

(B) A hearing shall be continued only with the approval of the board or its hearing examiner based upon a written motion of a party or upon the initiative of the hearing examiner.

(C) Hearings shall not be continued upon motion by a party unless a showing of reasonable cause and proper diligence is presented. Before granting any continuance, consideration shall be given to harm to the public which may result from delay in proceedings. In no event will a motion for a continuance requested less than five days prior to the scheduled date of the hearing be granted unless it is demonstrated that an extraordinary situation exists which could not have been anticipated and which would justify the granting of a continuance.

(D) No continuance of an adjudicatory hearing under division (G) or (I) of section 4731.22 of the Revised Code shall be granted without the written agreement of the respondent or the respondent's attorney or attorneys and of the board through its secretary and supervising member.

(E) If a continuance is granted, the hearing examiner shall immediately establish a new hearing date, unless circumstances prohibit.

(F) Hearings shall not be continued due to the unavailability of a subpoenaed witness without approval of the hearing examiner. The hearing examiner may hold the record open to accept a deposition in lieu of live testimony of a subpoenaed witness. The procedures set forth in rule 4731-13-20 of the Administrative Code shall apply to any deposition in lieu of live testimony taken pursuant to this rule.

(G) No adjudication hearing shall be continued for more than ninety days for the purpose of exchanging witness or document lists to the extent provided in rule 4731-13-18 of the Administrative Code unless the board or its hearing examiner finds in writing that such exchange was diligently pursued but was not completed due to the unusual circumstances of the case.

Eff 6-30-89; 3-27-97; 5-31-02; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.08 , 119.09 , 4731.22 , 4731.23
RC 119.032 review dates: 2/15/02, 2/15/07, 11/17/03, 3/25/07

4731-13-07 Motions.

(A) Except as otherwise provided under Chapter 4731-13 of the Administrative Code or Chapter 119. of the Revised Code, all motions, unless made upon the record at the hearing, shall be made in writing. A written motion shall state with particularity the relief or order sought, shall be accompanied by a memorandum setting forth the grounds therefore, and shall be filed in compliance with rule 4731-13-08 of the Administrative Code. Except in cases of summary suspensions pursuant to division (G) of section 4731.22 of the Revised Code, all prehearing motions except motions for continuance pursuant to rule 4731-13-06 of the Administrative Code and motions to quash pursuant to paragraph (F) of rule 4731-13-13 of the Administrative Code, shall be made no later than fourteen days before the date of hearing unless express exception is granted by the hearing examiner or by this chapter.

(B) All motions, together with any supporting documentation, shall be served as provided in rule 4731-13-09 of the Administrative Code.

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

(D) Before ruling upon a written motion, the hearing examiner shall consider all memoranda and supporting documents filed. The hearing examiner shall enter a written ruling and shall issue copies to each representative of record. The ruling on all motions made at hearing shall be included in the hearing transcript except where the hearing examiner elects to take the motion under advisement and issue a written ruling at a later time. The hearing examiner shall include in each written ruling on a motion a statement of the reasons therefore.

(E) Except as otherwise provided in this chapter or Chapter 119. of the Revised Code, rulings on all motions filed subsequent to the issuance of the report and recommendation shall be rendered by the board or, if the board is not in session, by the president acting on its behalf.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.07 , 119.09 , 4731.23
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-08 Filing.

(A) A document is "filed" when it is received and time stamped in the offices of the board.

(B) An original of any document required to be served by Chapter 4731-13 of the Administrative Code shall be filed with the board not more than three days after service.

(C) All filings shall be addressed to the board to the attention of its case control office.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.07 , 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-09 Service.

To be considered by the board and its hearing examiner, any document required by Chapter 4731-13 of the Administrative Code to be served shall:

(A) Be served either personally, or by regular mail or by facsimile. Service is complete on the date of mailing, facsimile or personal service of the document.

(B) Contain the name, address, and telephone number of the person submitting the document and shall be appropriately captioned to indicate the name of the respondent.

(C) Have a certificate of service on it. A certificate of service shall be signed and contain the following:

(1) The date of service;

(2) The method by which service was made;

(3) The address where service was made; and

(4) The name of the person or authority who was served.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.07 , 119.09 , 4731.05
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-10 Computation and extension of time.

(A) The date of occurrence of the event causing time to run is not counted in the computation of any time limit under Chapter 4731-13 of the Administrative Code. The last day of the period is included in the computation of the time limit. If the last day of a period is not a regular business day, the time period runs through the end of the next regularly scheduled business day.

(B) The board or its hearing examiner may extend the time for filing or responding to motions and briefs.

(1) Requests for extension of time shall be made in writing and filed as provided in rule 4731-13-08 of the Administrative Code prior to the expiration of any applicable time limit.

(2) Requests for extension of time shall be addressed to the attention of the board's case control office.

(3) Requests for extension of time shall be served as provided in rule 4731-13-09 of the Administrative Code.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.07 , 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-11 Notice of hearings.

Notice specifying the date, time and place set for hearing shall be mailed by certified mail to the representatives of record, except that notice of changes to the date, time or place set for hearing shall be mailed by regular mail or facsimile if a representative of each party participated in the selection of the new date, time or place.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.07 , 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-12 Transcripts.

(A) Duplicate transcripts of the stenographic record taken of hearings may be obtained directly from the court reporter at the requestor's expense prior to receipt of the original transcript by the board, except as otherwise restricted by 4731-13-31 of the Administrative Code..

(B) Upon request made to the board's case control office, a copy of the original hearing transcripts may be reviewed at the board offices. Additional copies may be prepared at the requestor's expense and shall be provided by the board within a reasonable period of time..

(C) Original transcripts shall not be removed from the board offices.

(D) Any portion of a hearing transcript which contains information that is required to be kept confidential pursuant to any state or federal law shall be sealed and made part of the hearing record. Confidential portions of hearing transcripts shall be provided only to agents of the parties for purposes of the administrative hearing and shall not be disseminated to any other persons.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-13 Subpoenas for purposes of hearing.

(A) Upon written request, the board shall issue subpoenas for purposes of hearing to compel the attendance and testimony of witnesses and production of books, records and papers. Each subpoena shall indicate on whose behalf the witness is required to testify. Copies of such subpoenas shall be issued to each representative of record.

(B) For purposes of a hearing conducted pursuant to Chapter 119. of the Revised Code, subpoena requests shall specify the name and address of the individual to be served and the date and time at which the individual is to appear. With respect to the production of books, records and papers, such request may specify a date of compliance not more than seven days prior to hearing.

(C) Except upon leave of the board or its hearing examiner, subpoena requests are to be filed with the board as provided in rule 4731-13-08 of the Administrative Code at least fourteen days in advance of the requested date of compliance in order to allow sufficient time for preparation and service of the subpoenas.

(D) In the event that the number of subpoenas requested appears to be unreasonable, the board or its hearing examiner may require a showing of necessity therefore, and, in the absence of such showing, may limit the number of subpoenas. Absent such a limitation, subpoenas shall be issued within five days of request. Failure to issue subpoenas within this time may constitute sufficient grounds for the granting of a continuance.

(E) After the hearing has commenced the hearing examiner may order the issuance of subpoenas for purposes of hearing to compel the attendance and testimony of witnesses and production of books, records and papers. Copies of such subpoenas shall be issued to each representative of record.

(F) Upon motion and for good cause, the hearing examiner may order any subpoena be quashed. Motions to quash shall be made in the manner provided in rules 4731-13-07 and 4731-13-08 of the Administrative Code, except that motions to quash shall be filed at least five days prior to the date of compliance. The non-moving party may file a response no later than four days after service of the motion to quash or at least one day prior to the date of compliance whichever is earlier. Unless a motion to quash has been granted, a witness shall attend the hearing to which he or she was subpoenaed. The board shall make a reasonable attempt to contact any witness whose subpoena has been quashed.

(G) Witnesses shall not be subpoenaed to prehearing conferences.

Eff 6-30-89; 3-27-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-14 Mileage reimbursement and witness fees.

(A) Mileage shall be paid in the same manner as that allowed in the court of common pleas in criminal cases in the county of hearing.

(B) The respondent shall not subpoena him or her self.

(C) Mileage and witness fees shall be returned by anyone who fails to appear at the hearing for which he or she was subpoenaed.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.07 , 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-15 Reports and recommendations.

(A) Within thirty days following the close of an adjudication hearing conducted pursuant to Chapter 119. of the Revised Code, the hearing examiner shall submit a written report setting forth proposed findings of fact and conclusions of law and a recommendation of the action to be taken by the board. The hearing shall not be considered closed until such time as the record is complete, as determined by the hearing examiner.

(B) A copy of such written report shall be issued to each representatives of record. The copy issued to the respondent's representative of record shall be accompanied by notice of the date the report and recommendation is to be considered by the board.

(C) Either representative of record may, within ten days of receipt of the hearing examiner's report and recommendation, file written objections to the report and recommendation. Only those objections filed in a timely manner shall be considered by the board before approving, modifying, or disapproving the hearing examiner's recommendation, unless otherwise determined by the board .

(D) Upon written request, the board may grant extensions of the time within which to file objections to the report and recommendation. In the event that the board is not in session, the president of the board may grant such extensions.

(E) Unless otherwise determined by the board based upon written motion of a party, the board shall consider the hearing examiner's report and recommendation and any objections thereto at its next regularly scheduled meeting after the time for filing objections has passed. At that time, the board may do any or all of the following: order additional testimony to be taken: permit the introduction of further documentary evidence; or act upon the report and recommendation. For purposes of taking such additional testimony or documentary evidence, the board may remand to the hearing examiner.

(F) Any motion to reopen the hearing record for purposes of introducing newly discovered material evidence that, with reasonable diligence, could not have been discovered and produced at the hearing shall be filed in the manner provided in rules 4731-13-07 and 4731-13-08 of the Administrative Code. Such motion to reopen shall be filed not later than fourteen days prior to the scheduled consideration by the board of the hearing examiner's report and recommendation, unless the newly discovered material evidence, with reasonable diligence, could not have been discovered earlier than fourteen days prior to the scheduled consideration by the board. The other party shall have an opportunity to file, not later than seven days prior to the scheduled consideration by the board of the hearing examiner's report and recommendation, a memorandum contra to said motion.

Any submission of documentation or evidence received by the board after the close of the record and prior to the date of consideration of the hearing examiner's report and recommendation by the board shall be deemed a motion to reopen the record pursuant to this rule. If such motion is filed prior to the issuance of the hearing examiner's report and recommendation, the hearing examiner shall rule on the motion. If such motion is filed subsequent to the issuance of the hearing examiner's report and recommendation, the board shall rule on the motion. All submitted materials must be accompanied by an affidavit from the moving party that sets forth how the evidence is material, how the evidence is newly discovered, and why it could not have been produced at hearing. The affidavit must also show that the party made a reasonably diligent effort to obtain the material prior to hearing. Failure to comply with the requirements of this rule shall result in the exclusion of the submitted material unless the moving party shows good cause and the board votes to admit the document or evidence.

(G) Without leave of the board, no party shall be permitted to address the board at the time of consideration of the hearing examiner's report and recommendation. Any request for such leave shall be filed by motion no less than five days prior to the date the report and recommendation is to be considered by the board. No such leave shall be granted unless the opposing representative of record has been actually notified of the request, unless otherwise determined by the board.

(H) If a request to address the board is granted, the opposing party may also address the board.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09 , 4731.23
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-16 Reinstatement or restoration of certificate.

Any disciplinary action taken by the board which results in a suspension from practice shall either lapse by its own terms or contain a written statement of the conditions under which the certificate may be reinstated or restored, unless terms for reinstatement or restoration are otherwise governed by statute.

Such conditions may include but are not limited to:

(A) Submission of a written application for reinstatement or restoration;

(B) Payment of all appropriate fees as provided in Chapter 4731. of the Revised Code;

(C) Mental or physical examination;

(D) Additional education or training;

(E) Reexamination;

(F) Practice limitations;

(G) Participation in counseling programs;

(H) Demonstration that the respondent can resume practice in compliance with acceptable and prevailing standards.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.07 , 119.09 , 4731.22 , 4731.23
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-17 Settlements, dismissals, and voluntary surrenders.

(A) Settlement shall be negotiated on behalf of the board by the secretary and supervising member of the board. Any settlement agreement containing terms not in conformity with the disciplinary guidelines adopted by the board must have the concurrence of the board's president prior to execution.

(B) Any matter which is the subject of a hearing may be settled by the parties. If settlement negotiations continue after the final day of hearing, the parties shall, within ten days of the final day of hearing, jointly present the hearing examiner with written notice specifying a period of time, not to exceed thirty days, during which the record shall be held open for purposes of negotiation.

(1) If the hearing record has closed or closes during the period of time specified in the parties' joint notice, such notice shall toll the hearing examiner's thirty-day time period for issuance of findings of fact and conclusions of law pursuant to section 4731.23 of the Revised Code.

(2) If, at the conclusion of the time period specified by the parties' joint notice, the hearing examiner has not received appropriate written notice that a settlement agreement has been executed, the tolling of the hearing examiner's thirty-day period for issuance of findings of fact and conclusions of law shall cease, no further settlement negotiations shall be undertaken, and no settlement agreement shall be executed in lieu of the filing of a report and recommendation by the hearing examiner and the issuance of a final order by the board.

(C) Before being submitted to the board for ratification, all settlement agreements shall be in writing and shall be signed by the respondent and by the respondent's attorney, if any.

(D) Signed settlement agreements shall be submitted to the board for ratification.

(E) If the Board ratifies a settlement agreement, the following shall sign the ratified agreement:

(1) The secretary and supervising member of the board shall sign the ratified agreement.

(2) If the settlement agreement was negotiated prior to the issuance of a notice of opportunity for hearing, an appropriate board staff attorney shall sign the ratified agreement.

(3) If the settlement was negotiated subsequent to the issuance of a notice of opportunity for hearing, an attorney from the office of the attorney general shall sign the ratified agreement..

(F) A notice of dismissal may be entered at any time prior to the filing of the report and recommendation. If negotiations continue after the final day of hearing, the procedures in paragraph (B) of this rule shall be followed. A notice of dismissal shall be authorized and signed by the board's secretary and supervising member.

(G) This rule shall neither apply to nor limit the authority granted the board under division (M) of section 4731.22 of the Revised Code with regard to the surrender of a license or certificate or the withdrawal of an application for a license or certificate.

(H) In the event that the board issues an amended notice of opportunity for hearing, the original notice of opportunity for hearing is automatically superseded by the amended notice. To request a hearing pursuant to Chapter 119. of the Revised Code, the respondent must file a new hearing request in response to the amended notice of opportunity for hearing. For purposes of this chapter of the Administrative Code, "amended cite" means a cite in which there has been a substantive alteration to one or more factual allegations or statutory charges, other than correction of a clerical or technical error, that relates to the allegations set forth in the original notice.

Eff 6-30-89; 3-27-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09 , 4731.23
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-18 Exchange of documents and witness lists.

(A) Any party may serve upon the other party's representative of record a written request for a list of both the witnesses and the documents intended to be introduced at hearing.

(1) Except in the case of summary suspension, the requested list of witnesses and documents shall be provided within twelve days of service of the request .

(2) In the case of summary suspension, the requested list of witnesses and documents shall be provided within a reasonable time, but in no event less than three days prior to commencement of the hearing.

(B) Any party may serve upon the other party's representative of record a written request for copies of the documents intended to be introduced at hearing.

(1) Except in the case of summary suspension, the requested copies of documents shall be provided no later than fourteen days prior to commencement of the hearing.

(2) In the case of summary suspension, the requested copies of documents shall be provided no less than three days prior to commencement of the hearing.

(C) Upon motion of any party, failure without good cause to comply with paragraphs (A) or B of this rule may result in exclusion from the hearing of such testimony or documents.

(D) Upon written motion of a party or upon the hearing examiner's initiative, the hearing examiner shall issue an order setting forth a schedule by which the parties shall exchange hearing exhibits, identify lay and expert witnesses and exchange written reports from expert witnesses.

(1) Absent extraordinary circumstances, the failure of a party to produce an exhibit under the terms of the hearing examiner's order shall result in the exclusion of that exhibit from evidence at hearing.

(2) Absent extraordinary circumstances, the failure of a party to identify a lay or expert witness under the terms of the hearing examiner's order shall result in the exclusion of that witness' testimony at hearing.

(3) Absent extraordinary circumstances, the failure of a party to produce a written report from an expert witness under the terms of the hearing examiner's order shall result in the exclusion of the witness' expert testimony at hearing.

(E) A party shall notify the hearing examiner of any deficiency in the materials provided by the other party within a reasonable period of time after discovery of the deficiency.

(F) A party shall notify the hearing examiner of any failure by the other party to comply with a deadline imposed pursuant to this rule within seven days of the failure to comply.

(G) Any witness who intends to testify as an expert, including the respondent, must submit a written report. A written report by an expert shall set forth the opinions to which the expert witness will testify and the bases for such opinions. This paragraph will not preclude the respondent from testifying as a fact witness.

(H) Any exhibit exchanged by the parties which is a patient record or which contains information that is required to be kept confidential pursuant to any state or federal law may be provided only to agents of the parties for purposes of the administrative hearing and shall not be disseminated to any other person or entity.

Replaces: 4731-13-29; Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-19 Prehearing conference. [Rescinded].

Rescinded eff 2-28-04

4731-13-20 Depositions in lieu of live testimony.

(A) Upon written motion of any party, and upon service of that motion to the other party's representative of record, the hearing examiner may order that the testimony of a prospective witness, be taken by deposition in lieu of live testimony.The hearing examiner may grant the motion if it appears probable that:

(1) The prospective witness will be unavailable to attend or will be prevented from attending a hearing;

(2) The testimony of the prospective witness is material; and

(3) In the case of an expert witness, a showing of the unavailability of the expert to attend shall not be necessary for the hearing examiner's consideration of the motion to take a deposition in lieu of live testimony.

(B) The testimony shall be taken under such conditions and terms as the hearing examiner shall set forth. Moreover, the hearing examiner may order the production of any designated books, papers, documents or tangible objects, so long as not privileged, at the same time and place.

(C) The parties shall agree to the time and place for taking the deposition in lieu of live testimony. Depositions in lieu of live testimony shall be conducted in the same county in which the hearing is conducted unless otherwise agreed to by the parties. If the parties are unable to agree, the hearing examiner shall set the time or fix the place of deposition.

(D) At a deposition in lieu of live testimony taken pursuant to this rule, each party shall have the right, as at hearing, to fully examine witnesses.

(E) The transcript of a deposition in lieu of live testimony taken under this rule shall be offered into evidence at hearing. The cost of preparing a transcript of any testimony taken by deposition in lieu of live testimony which is submitted as evidence at the hearing shall be borne by the board.

(F) The expense of any video deposition shall be borne by the requestor.

Eff 6-30-89; 3-27-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-21 Prior action by the state medical board.

The hearing examiner shall admit evidence of any prior action entered by the board against the respondent. Such evidence shall include a certified copy of the final order in that prior action, and may also include other certified documents pertaining to that action.

Eff 6-30-89; 3-27-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09 , 4731.23
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-22 Stipulation of facts.

Parties may, by stipulation, agree on any or all facts involved in proceedings before the hearing examiner. The hearing examiner may thereafter require development of any fact the hearing examiner deems necessary.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-23 Witnesses.

(A) All witnesses at any hearing before the hearing examiner shall testify under oath or affirmation.

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

(C) Should a witness refuse to answer a question ruled proper at a hearing or disobey a subpoena, the board may institute contempt proceedings pursuant to section 119.09 of the Revised Code.

(D) For purposes of this chapter:

(1) A sitting board member is an individual who is currently a member of the Board.

(2) A presiding board member is a sitting board member who has a decisive role in the outcome of the matter in question and who is neither the secretary nor the supervising member as appointed pursuant to Chapter 4731., Ohio Revised Code.

(3) A non-presiding board member is a sitting board member who does not have a decisive role in the outcome of the matter in question due to recusal, absence or other reason.

(4) A presiding hearing examiner is a hearing examiner who is assigned to the matter in question pursuant to section 4731.23 , Ohio Revised Code.

(5) A non-presiding hearing examiner is a hearing examiner who is not assigned to the matter in question pursuant to section 4731.23 , Ohio Revised Code.

(E) Neither a presiding board member nor a presiding hearing examiner shall be a competent witness in any adjudication proceeding. Evidence from other persons relating to the mental processes of a presiding board member or a presiding hearing examiner shall not be admissible.

(F) Unless the testimony of a non-presiding board member or a non-presiding hearing examiner is material to the factual allegations set forth in the notice of opportunity for hearing, neither a non-presiding board member nor a non-presiding hearing examiner shall be a competent witness in any adjudication proceeding.

(G) A sitting board member shall not be subpoenaed to provide expert testimony.

(H) Any party may move for a separation of witnesses. Expert witnesses shall not be separated.

(I) Upon commencement of a hearing, each party shall inform the hearing examiner of the identity of each potential witness for his or her cause who is present in the hearing room. Failure to so identify potential witnesses may be grounds for their later disqualification as witnesses.

(J) A witness may, in the discretion of the attorney hearing examiner, testify as to an ultimate issue of fact. An expert witness may testify regarding the appropriate treatment for impairment.

Eff 6-30-89; 3-27-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-24 Conviction of a crime.

A certified copy of a plea of guilty to, or a judicial finding of guilt of any crime in a court of competent jurisdiction is conclusive proof of the commission of all of the elements of that crime.

R.C. 119.032 review dates: 11/17/2003 and 03/25/2007

Promulgated Under: 119.03

Statutory Authority: 4731.05

Rule Amplifies: 119.09 , 4731.22

Prior Effective Dates: 6/30/89

4731-13-25 Evidence.

(A) The "Ohio Rules of Evidence" may be taken into consideration by the board or its hearing examiner in determining the admissibility of evidence, but shall not be controlling. The "Ohio Rules of Evidence" are readily available to attorneys and may be found at libraries, bookstores and on the internet at www.sconet.state.oh.us/rules/evidence.

(B) The hearing examiner may permit the use of electronic or photographic means for the presentation of evidence.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 4731.23 , 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-26 Broadcasting and photographing administrative hearings.

If the hearing examiner determines that broadcasting, televising, recording or taking of photographs in the hearing room would not distract participants, impair the dignity of the proceedings or otherwise materially interfere with the achievement of a fair administrative hearing, the broadcasting, televising, recording or taking of photographs during hearing proceedings open to the public may be permitted under the following conditions and upon request:

(A) Requests for permission for the broadcasting, televising, recording or taking of photographs in the hearing room shall be made in writing to the hearing examiner prior to the commencement of the hearing, and shall be made a part of the record of the proceedings;

(B) Permission is expressly granted prior to commencement of the hearing in writing by the hearing examiner and is made a part of the record of the proceedings;

(C) If the permission is granted, the hearing examiner shall specify the place or places in the hearing room where operators and equipment are to be positioned;

(D) The filming, videotaping, recording or taking of photographs of witnesses who object thereto shall not be permitted.

Eff 6-30-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-27 Sexual misconduct evidence.

In those cases where sexual misconduct has been alleged:

(A) Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's sexual activity with the offender, and only to the extent that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

(B) Prior to taking testimony or receiving evidence of any sexual activity of the victim, the hearing examiner shall resolve the admissibility of the proposed evidence in a closed hearing. The victim may be represented by counsel in that hearing or other proceedings to resolve the admissibility of evidence upon approval by the hearing examiner.

(C) Nothing in this rule shall be construed as limiting the authority of the hearing examiner to close a hearing as provided under paragraph (B) of rule 4731-13-03 of the Administrative Code.

Eff 10-31-89; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-28 Supervision of hearing examiners.

The hearing examiners shall perform their duties under the supervision and direction of the board's executive director, provided that the board, other than the secretary and supervising member, shall have exclusive authority to impose discipline based on the substance of the hearing examiners' reports and recommendations.

Eff 3-27-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 4731.05 , 4731.23
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-29 Requirements for pre-hearing exchange of information. [Rescinded].

Rescinded eff 2-28-04

4731-13-30 Prehearing conference.

With or without written motion from any party, the hearing examiner may schedule a prehearing conference to address any matter related to preparation for or conduct of a hearing. The prehearing conference may be in person or by telephone. No witness testimony shall be taken during a prehearing conference. Any documents presented at the prehearing conference shall be made part of the hearing record. If a transcript of the proceeding is prepared, the transcript shall be made part of the hearing record.

Replaces: 4731-13-19; Eff 3-27-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09 , 4731.23
RC 119.032 review dates: 11/17/03, 3/25/07

4731-13-31 Transcripts of prior testimony.

(A) Any transcript of prior testimony of a witness may be used for the purpose of refreshing the recollection, contradicting the testimony or impeaching the credibility of that witness. If only a part of a transcript is offered into evidence by a party, the other party may offer any other part.

(B) A transcript of testimony and exhibits from a prior proceeding may be introduced for any purpose if that prior proceeding concerns the basis for the board's allegations against the respondent. Upon offering part of a transcript or exhibit from a prior proceeding, the offering party may be required by the other party to present any other part of the offered item which should in fairness be considered contemporaneously with it.

(C) Nothing in this paragraph shall be construed to permit the taking of depositions for purposes other than those set forth in rule 4731-13-20 of the Administrative Code.

(D) Nothing in this rule shall be construed to limit the use of a prior statement by a respondent as set forth in rule 4731-13-32 of the Administrative Code.

Replaces: 4731-13-20; Eff 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review date: 3/25/07

4731-13-32 Prior statements of the respondent.

Prior statements of the respondent shall not be excluded on the basis of hearsay.

Eff 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review date: 3/25/07

4731-13-33 Physicians' Desk Reference.

The board or its hearing examiner may utilize the "Physicians' Desk Reference" (PDR) for information regarding the FDA approved labeling for dangerous drugs. The edition(s) of the PDR utilized shall be the edition(s) contemporaneous with the allegations set forth in the notice of opportunity for hearing upon which the hearing is based. The "PDR" is a well-known and readily available text. It may be found at libraries, bookstores or on the internet at www.pdr.net.

Eff 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review date: 3/25/07

4731-13-34 Ex parte communication.

(A) The members of the board shall base their decisions on any matter subject to hearing only on the evidence of record. No information acquired by a member of the board in any way other than by review of the evidence of record shall be considered by such member in that member's decision on a matter subject to hearing. The receipt of information about a matter subject to hearing outside the evidence of record shall not disqualify the member from participating in the decision on that matter unless the member excuses himself or herself from participation in the decision on the ground that he or she cannot restrict his or her decision on the matter to the evidence of record.

(B) Except as otherwise provided under this chapter or by statute, no hearing examiner or member of the board shall initiate or consider ex parte communications concerning a substantive matter related to a pending adjudicatory proceeding. Nothing contained herein, however, shall preclude the hearing examiner from nonsubstantive ex parte communications on procedural matters and matters affecting the efficient conduct of adjudicatory hearings.

(C) The hearing examiner and members of the board shall disclose on the public record the source of any ex parte or attempted ex parte communications pertaining to a substantive issue. If the recipient of the ex parte communication determines that he or she can no longer render an impartial decision, the recipient shall recuse himself or herself from further participation in consideration of the matter.

(D) If requested by any party, the recipient of the ex parte communication shall file with the board an affidavit setting forth the substance of the ex parte communication. The affidavit shall be sealed, held as preoffered material and maintained with the hearing record.

Replaces: 4731-13-01; Eff 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review date: 3/25/07

4731-13-35 Severability.

(A) Except as otherwise provided under this chapter or by statute, a rule promulgated under this chapter shall apply only to those administrative proceedings for which the notice of opportunity for hearing was mailed to respondent, or his representative, on or after the effective date of the particular rule.

(B) If any provision of the rules in this chapter of the Administrative Code or if the application of any provision of the rules in this chapter of the Administrative Code is held invalid, the invalidity shall not affect any other provision of the rules in this chapter, or the application of any other provision of the rules in this chapter, that can be given effect without the invalid provision or application, and, to this end, the provisions of the rules in this chapter are hereby declared severable.

Replaces: 4731-13-01; Eff 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 119.09
RC 119.032 review date: 3/25/07

4731-13-36 Disciplinary actions.

For purposes of Chapters 4730., 4731., 4760, and 4762. of the Revised Code and Chapter 4731. of the Administrative Code:

(A) "Permanent revocation" means the permanent loss of a certificate to practice in Ohio and the inability, at any time, to reapply for or hold any certificate to practice in Ohio. An individual whose certificate has been permanently revoked shall forever thereafter be ineligible to hold any certificate to practice, and the board shall not accept from that individual an application for reinstatement or restoration of the certificate or for issuance of any new certificate.

(B) "Revocation" means the loss of a certificate to practice in Ohio. An individual whose certificate has been revoked shall be eligible to submit an application for a new certificate. The application for a new certificate shall be subject to all requirements for certification in effect at the time the application is submitted. In determining whether to grant such an application, the board may consider any violations of Chapters 4730., 4731., 4760. and 4762. of the Revised Code, whichever is applicable, that were committed by the individual before or after the revocation of the individual's certificate, including those that formed the basis for the revocation. All disciplinary action taken by the board against the revoked certificate shall be made a part of the board's records for any new certificate granted under this rule.

(C) "Suspension" means the temporary loss of a certificate to practice in Ohio. A suspension shall be imposed for either a definite term or an indefinite term.

(1) An order for a definite term of suspension shall specify the time period of the suspension. A certificate which has been suspended for a definite term shall be reinstated at the conclusion of the specified time period.

(2) An order for an indefinite term of suspension shall contain a written statement of the conditions under which the certificate may be reinstated. Such conditions may include, but are not limited to, the following:

(a) A minimum time period of suspension;

(b) Submission of a written application for reinstatement;

(c) Payment of all appropriate fees as provided in Chapters 4730., 4731., 4760. and 4762. of the Revised Code;

(d) Mental or physical examination;

(e) Additional education or training;

(f) Reexamination;

(g) Participation in counseling programs;

(h) Demonstration that the certificate holder can resume practice in compliance with acceptable and prevailing standards;

(i) Satisfactory completion of all terms, conditions or limitations placed upon the certificate holder through a board-approved consent agreement or board order;

(j) Passage of an examination to determine present fitness to resume practice, pursuant to section 4731.222 , Ohio Revised Code; and

(k) Acceptance of conditions of probation or practice limitations.

(D) "Limitation" means to preclude the certificate holder from engaging in a particular conduct or activity, to impose conditions on the manner in which that conduct or activity may be performed, or to require the certificate holder to abide by specific conditions in order to continue practicing medicine. A limitation shall be either temporary or permanent.

(E) "Probation" means a situation whereby the certificate holder shall continue to practice only under conditions specified by the board. Failure of the certificate holder to comply with the conditions of probation may result in further disciplinary action being imposed by the board. The probation period shall be for either a definite or an indefinite term. If probation is for an indefinite term, the board shall establish a minimum probation period and the board shall release the certificate holder from the conditions of probation upon completion of the minimum probation period and upon the board's determination that the purpose of probation has been fulfilled.

(F) "Reprimand" means the certificate holder is formally and publicly reprimanded in writing.

(G) "No Further Action" means that the board finds that a violation occurred but declines to impose any disciplinary sanction. No further action shall be ordered by the board under circumstances where the board finds that all necessary remedial measures have been completed by the certificate holder, future monitoring is unnecessary and reprimand is not warranted.

(H) "Dismissal" means that the board finds that no violation occurred.

(I) "Grant of Application for Certificate" means that the board grants an application for a certificate to practice. In matters where disciplinary violations have been alleged against an applicant for a certificate, the grant of an application for certificate may be accompanied by a suspension, limitation, probation, reprimand or no further action.

(J) "Permanent Denial" and "Permanent Refusal to Register or Reinstate" mean the permanent denial of an application for a certificate to practice in Ohio. An individual whose application for a certificate has been permanently denied shall forever thereafter be ineligible to apply to the board for any certificate to practice, and the board shall not accept from that individual an application for issuance of any certificate.

(K) "Denial" and "Refusal to Register to Reinstate" mean the denial of an application for a certificate to practice in Ohio. An individual whose application for a certificate has been denied shall be eligible to submit a new application for a certificate. The new application shall be subject to all requirements for certification in effect at the time the new application is submitted. In determining whether to grant a new application, the board may consider any violations of Chapter 4730., 4731., 4760. and 4762. of the Ohio Revised Code, whichever is applicable, that were committed by the individual before or after the denial of the individual's previous application, including those that formed the basis for the denial.

Eff 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4730.07 , 4731.05 , 4760.19 , 4762.19
Rule amplifies: RC 119.09 , 4730.25 , 4731.22 , 4731.23 , 4760.13 , 4762.13
RC 119.032 review date: 3/25/07