Chapter 4761:1-12 Hearing Procedures

4761:1-12-01 Representation; appearance; communication; applicability.

(A) As used in Chapter 4761:1-11 of the Administrative Code, "respondent" shall be defined as the licensee through its representative who is requesting or has requested a hearing as provided in Chapter 119. of the Revised Code.

(B) As used in Chapter 4761:1-11 of the Administrative Code, "hearing examiner" shall be defined as an attorney licensed to practice in Ohio retained by the board to conduct hearings on its behalf.

(C) As used in Chapter 4761:1-11 of the Administrative Code, "appointed hearing officer" shall be defined as a member of the board appointed or elected to conduct a hearing should the hearing be held before the board and not a hearing examiner.

(D) The respondent may be self-represented or may be represented by an attorney admitted to the practice of law in Ohio. In the absence of an attorney, the respondent shall be deemed the representative of record for the purposes of Chapter 4761:1-11 of the Administrative Code.

(E) The respondent is not required to personally appear at any hearing provided he/she has not been subpoenaed. The respondent may authorize an attorney to represent him/her in all matters of the hearing before the board.

(F) The respondent or attorney representative may present positions, arguments, or contentions in writing rather than appear at any hearing provided that the respondent has not been subpoenaed.

(G) The representative of record for the respondent shall enter appearances in writing.

(H) The representative of record from the Ohio attorney general's office shall enter appearances in writing.

(I) The person entering an appearance as representative of record will remain the representative of record until a written withdrawal is filed with the board.

(J) Except as otherwise provided under Chapter 119. of the Revised Code, communications from the board, its appointed hearing officer, its hearing examiner, or representative from the Ohio attorney general's office shall be sent to the respondent's representative of record.

(K) The members of the board shall base their decisions on any matter subject to hearing only on the evidence contained in the record. No information acquired by a member of the board in any way other than by review of the evidence of the record shall be considered by such member in that member's decision on a matter subject to hearing.

Any board member who participates in the probable review determination will be recused from the adjudication hearing.

(L) 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 pending or impending adjudicatory proceeding. Nothing contained herein, however, shall preclude the hearing examiner from nonsubstantative ex parte communications on procedural matters and matters affecting the efficient conduct of adjudicatory hearings.

(M) The attorney hearing examiner and members of the board shall disclose on the record the source and substance of any ex parte or attempted ex parte communications. That disclosure shall be made at an adjudicatory hearing or at a board meeting prior to deliberation on a pending or impending adjudicatory proceeding.

(N) If any provision of the rules in this chapter is held invalid or if the application of any provision of the rules in this chapter to any person or circumstances is held invalid, the invalidity does 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 provision of the rules in this chapter are hereby declared severable.

Effective: 08/09/2010
R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09(A)
Prior Effective Dates: 05/23/2005

4761:1-12-02 Authority and duties of the board or attorney hearing examiner.

(A) Adjudication hearings shall be conducted before the board or a hearing examiner. Adjudication hearings held before the board shall be conducted under the direction of an appointed hearing officer elected from among its members.

(B) All hearings are open to the public.

(C) In its discretion, the appointed hearing officer or hearing examiner may admit sensitive or confidential evidence into the hearing record under seal.

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

(E) The authority of the appointed hearing officer or attorney hearing examiner shall include, but not be limited to, authority to:

(1) Administer oaths and affirmations, which may also be done by a notary public or by the court reporter;

(2) Order the issuance of subpoenas and subpoena duces tecum to require the attendance of witnesses at hearings and depositions and to require the production of evidence for hearings and depositions;

(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) Prepare entries, findings, order, or reports and recommendations;

(7) Request preparation of entries, findings, or orders;

(8) Take such other actions as may be necessary to accomplish the purposes of paragraph (D) of this rule.

(F) The authority of the appointed hearing officer or hearing examiner shall not include authority to:

(1) Grant motions for dismissal of charges;

(2) Modify, compromise, or settle charges or allegations.

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

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09(a)
Prior Effective Dates: 05/23/2005

4761:1-12-03 Filing.

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

(B) An original of any document required to be served by Chapter 4761:1-11 of the Administrative Code shall be filed with the Ohio respiratory care board not more than three days after service.

(C) All filings shall be addressed to the board to the attention of the executive director. A copy of all filings must be provided to the assistant attorney general representing the board pursuant to rule 4761:1-12-01 of the Administrative Code.

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09(a)
Prior Effective Dates: 05/23/2005

4761:1-12-04 Motions.

(A) Except as otherwise provided under Chapter 119. of the Revised Code or Chapter 4761:1-11 of the Administrative 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 4761:1-12-03 of the Administrative Code. A proposed entry may accompany any motion. Except in cases of summary suspensions pursuant to division (B) of section 4752.09 of the Revised Code, all motions except those filed subsequent to the close of the hearing shall be made no later than fourteen days before the date of hearing unless express exception is granted by the appointed hearing officer or the board's hearing examiner or by this chapter.

(B) All motions, together with supporting documentation, if any, shall be served as provided in rule 4761:1-12-05 of the Administrative Code.

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

(D) Before ruling upon a written motion, the appointed hearing officer or its hearing examiner shall consider all memoranda and supporting documents filed. The appointed hearing officer or its hearing examiner shall enter a written ruling and shall issue copies to the representatives of record as identified under rule 4761:1-12-01 of the Administrative Code. The ruling on all oral motions made at hearing shall be included in the record except where the appointed hearing officer or hearing examiner elects to take the motion under advisement and issue a written ruling at a later time. The appointed hearing officer or its hearing examiner shall include in each written ruling on a motion a short 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 by the board's hearing examiner shall be rendered by the board or, if the board is not in session, by the board's appointed hearing officer acting on its behalf.

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09(a)
Prior Effective Dates: 05/23/2005

4761:1-12-05 Service.

(A) Except as otherwise provided in chapter 119. of the Revised Code or Chapter 4761:1-11 of the Administrative Code, any document required by this chapter of the Administrative Code to be served by the respondent, respondent's counsel of record, assistant attorney general, or board representative may be served either personally or by first class mail service. Service is complete on the date it is received or on the date personal service of the document is made.

(B) All motions or briefs shall contain the name, address, and telephone number of the person submitting the motion or brief and shall be appropriately captioned to indicate the name of the respondent and home care facility represented.

(C) A motion shall be considered by the board or its attorney hearing examiner only if a certificate of service appears on it. Any signed statement is an acceptable certificate of service so long as it contains all of the following information:

(1) Date of service;

(2) Method by which service was made;

(3) Address where service was made; and

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

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09
Prior Effective Dates: 05/23/2005

4761:1-12-06 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. 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 appointed hearing officer or its hearing examiner may extend the time for filing or responding to motions and briefs for good cause shown.

(1) Requests for extension of time shall be made in writing and filed as provided in rule 4761:1-12-03 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 appointed hearing officer or hearing examiner.

(3) Requests for extension of time shall be served as provided in rule 4761:1-12-05 of the Administrative Code.

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09
Prior Effective Dates: 05/23/2005

4761:1-12-07 Exchange of documents and witness lists.

(A) Any representative of record may serve upon the opposing representative of record a written request for a list of both the names and addresses of witnesses and the documents intended to be introduced at hearing. Except in the case of summary suspensions, within seven days of the scheduled hearing the opposing representative shall supply such a list to the requesting representative. In the alternative, the hearing examiner or hearing officer may establish a schedule for the exchange of witness lists and exhibits. In cases of summary suspensions the exchange of lists of both witnesses and documents intended to be introduced at hearing shall be completed forthwith, but in no event less than three days prior to hearing.

(B) Without good cause, failure to comply with paragraph (A) of this rule may result in exclusion from the hearing of such testimony or documents, upon motion of the representative to whom disclosure is refused.

R.C. 119.032 review dates: 10/28/2013 and 08/15/2018
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.17(A)(11) , 4752.09
Prior Effective Dates: 05/23/2005, 08/15/2008

4761:1-12-08 Exhibits.

(A) All exhibits will be labeled in advance of the hearing. Each party will provide ten copies of all exhibits to the board's appointed hearing officer or its hearing examiner in advance of the hearing. The state shall label their exhibits with a letter beginning with "A" and respondent shall label their exhibits with numbers beginning with number "1". Failure to provide exhibits in accordance with this rule may result in their exclusion.

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09
Prior Effective Dates: 05/23/2005

4761:1-12-09 Witnesses.

(A) All witnesses at any hearing before the board or its 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 Ohio respiratory care board may institute contempt proceedings pursuant to section 119.09 of the Revised Code.

(D) Neither board members nor the board's appointed hearing officer or its hearing examiner, shall be a competent witness nor subject to deposition in any adjudication proceeding. Unless the testimony of a board member or its hearing examiner is material to the factual allegations set forth in the notice of opportunity for hearing, board members or its attorney hearing examiner shall not be competent witnesses nor subject to deposition in any adjudication proceeding. Evidence from other persons relating to the mental processes of the appointed hearing officer or the board's hearing examiner or board members shall not be admissible.

(E) Any representative of record may move for a separation of witnesses. Expert witnesses shall not be separated.

(F) Each representative of record at a hearing shall inform the board or its attorney hearing examiner prior to the commencement of a hearing of the identity of each potential witness for cause present in the hearing room. Failure to so identify potential witnesses at this time may be grounds for their later disqualification as witnesses.

(G) No witnesses shall be permitted to testify as to the nature, extent, or propriety of disciplinary action to be taken by the Ohio respiratory care board. A witness may, in the discretion of the appointed hearing officer or the hearing examiner, testify as to an ultimate issue of fact.

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09
Prior Effective Dates: 05/23/2005

4761:1-12-10 Subpoenas for purposes of hearing.

(A) Upon written request of any party, the board through its executive director 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 the representatives of record as identified in rule 4761:1-12-01 of the Administrative Code.

(B) For purposes of a hearing conducted under 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 they are to appear. With respect to the production of books, records and papers, such request may specify a date of compliance not less than seven days prior to hearing.

(C) Except upon leave of the appointed hearing officer or its hearing examiner, subpoena requests are to be filed with the board as provided in rule 4761:1-12-03 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 appointed hearing officer 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 appointed hearing officer or the hearing examiner may order the issuance of subpoenas to compel the attendance and testimony of witnesses and production of books, records and papers. Copies of such subpoenas shall be issued to the representatives of record as identified in rule 4761:1-12-01 of the Administrative Code.

(F) Upon motion and for good cause shown, the appointed hearing officer or the hearing examiner may order any subpoena be quashed. Motions to quash shall be made in the manner provided in rule 4761:1-12-04 of the Administrative Code, except that motions to quash shall be filed at least five days prior to the date of compliance. The motion to quash a subpoena must be accompanied by a memorandum setting forth the grounds for the motion. 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 the witness was subpoenaed. The board shall make a reasonable attempt to contact any witness whose subpoena has been quashed.

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09
Prior Effective Dates: 05/23/2005

4761:1-12-11 Expert testimony.

(A) Any party who intends to utilize expert testimony at hearing must provide a written report by the expert to the opposing party which sets forth the opinions to which the expert will testify and the bases for such opinions. Such report must be served upon the opposing party no later than five days prior to the hearing date, unless waived by both parties. Failure to produce and serve the expert's report within the prescribed time shall result in the exclusion of that expert's testimony and report at hearing.

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09
Prior Effective Dates: 05/23/2005

4761:1-12-12 Mileage reimbursement and witness fees.

(A) Each witness shall receive the following fees:

(1) Twelve dollars for each full day's attendance and six dollars for each half day's attendance at hearing or deposition. Each witness shall also receive fifty and one-half cents for each mile necessarily traveled to and from his place of residence to the place of giving testimony.

(2) As used in paragraph (A) of this rule, a "full day's attendance" means a day on which a witness is required or requested to be present at a proceeding before and after twelve o'clock noon regardless of whether the witness actually testifies. A "half day's attendance" means a day on which a witness is required to be present at a proceeding either before or after twelve o'clock noon, but not both, regardless of whether the witness actually testifies.

(3) A respondent may not subpoena him or herself.

Effective: 08/09/2010
R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09 , 119.094
Prior Effective Dates: 05/23/2005

4761:1-12-13 Depositions and transcripts of prior testimony.

(A) Upon written motion of any representative of record, and upon service of that motion to all other representatives, the appointed hearing officer or the hearing examiner may order that the testimony of a prospective witness be taken by deposition under such conditions and terms as the appointed hearing officer or the hearing examiner shall set and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place if it appears probable that:

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

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

(3) The testimony of the prospective witness is necessary in order to prevent a failure of justice.

(B) In the case of an expert witness, a showing of the unavailability of the expert shall not be necessary for the appointed hearing officer or hearing examiner's consideration of the motion of a representative to take a deposition.

(C) The representatives of record shall agree to the time and place for taking the deposition in lieu of live testimony. Depositions shall be conducted in the same county in which the hearing is conducted unless otherwise agreed to by the representatives of record. If the representatives of record are unable to agree, the appointed hearing officer or hearing examiner shall set the time or fix the place of deposition. At a deposition taken pursuant to this rule, representatives of record shall have the right, as at hearing, to fully examine witnesses. A deposition taken under this rule may be offered into evidence at hearing by either representative of record in lieu of the prospective witness' personal appearance. The cost of preparing a transcript of any testimony taken by deposition in lieu of live testimony which is offered as evidence at the hearing shall be borne by the party that requested the deposition. In the event of appeal, such costs shall be made a part of the cost of the hearing record.

(D) Any deposition or 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 deposition is offered into evidence by a representative of record, the opposing representative of record may offer any other part. Nothing in this paragraph shall be construed to permit the taking of depositions for purposes other than those set forth in paragraph (A) of this rule.

(E) A transcript of testimony and exhibits from a prior proceeding may be introduced for any purpose if that prior proceeding forms the basis for the allegations. Upon offering part of a transcript or exhibit from a prior proceeding, the offering representative of record may be required by the opposing representative of record to present any other part of the offered item which should in fairness be considered contemporaneously with it.

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09
Prior Effective Dates: 05/23/2005

4761:1-12-14 Continuance of hearing.

(A) Except in matters of summary suspension under division (B) of section 4752.09 of the Revised Code, the appointed hearing officer, 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) The appointed hearing officer or the hearing examiner may continue a hearing upon the motion of a representative of record.

(C) Hearings shall not be continued upon motion by a representative unless 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.

(D) Upon proper motion, the hearing record may be held open to accept a deposition in lieu of oral testimony or a subpoenaed witness upon proper motion.

(E) Continuances whenever possible shall be sought no later than three days before a hearing. Failure to request a continuance more than three days before the scheduled hearing date will be grounds for denial of the request, unless the moving party is able to show reasonable cause and proper diligence and no harm to the public will result.

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09
Prior Effective Dates: 05/23/2005

4761:1-12-15 Reports and recommendations.

(A) If the board uses a hearing examiner to hear a case, the hearing examiner shall submit a written report setting forth the proposed findings of fact and conclusions of law and recommendations of the action to be taken by the board within thirty days following the close of an adjudication hearing conducted pursuant to Chapter 119. of the Revised Code. The hearing shall not be considered closed until such time as the record is complete, as determined by the hearing examiner. Failure of the hearing examiner to issue the report and recommendation within thirty days after the hearing record is closed does not constitute in and of itself grounds for dismissal of the charges against respondent.

(B) A copy of such written report shall be issued to the representatives of record as identified in rule 4761:1-12-01 of the Administrative Code. 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) The respondent's representative of record may, within ten days of his 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.

(D) Upon written request, the board may grant extensions of the time within which to file objections. In the event that the full board is not in session, the appointed hearing officer may grant such extensions.

(E) 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 order additional testimony to be taken or 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 which, with reasonable diligence could not have been discovered and produced at the hearing shall be made in the manner provided in rules 4761:1-12-03 , 4761:1-12-04 , and 4761:1-12-05 of the Administrative Code. Such motion to reopen shall be filed not later than three days prior to the scheduled consideration by the board of the hearing examiner's report and recommendation and any objections thereto. 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 upon the motion.

(G) Any request for leave to address the board 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 has been actually notified of the request and given opportunity to respond. Without leave of the board, the respondent or any representative of record shall not be permitted to address the board at the time of consideration of the hearing examiner's report and recommendation.

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

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09
Prior Effective Dates: 05/23/2005

4761:1-12-16 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.

(B) Upon request made to the board, a copy of original transcripts, if the transcript is on file at the board office, may be reviewed at the board offices or signed out for a period of forty-eight hours. Additional copies may be prepared at the requestor's expense.

(C) Original transcripts, if the transcript is on file at the board office, shall not be removed from the board offices.

Effective: 08/09/2010
R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09
Prior Effective Dates: 05/23/2005

4761:1-12-17 Prior action by the board.

The attorney hearing examiner or the hearing officer shall admit evidence of any prior action entered by the Ohio respiratory care board against the respondent, including formal disciplinary actions or warning letters.

R.C. 119.032 review dates: 05/06/2010 and 05/06/2015
Promulgated Under: 119.03
Statutory Authority: 4752.17(A)(11)
Rule Amplifies: 4752.09
Prior Effective Dates: 05/23/2005