Chapter 4779-11 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 4779-11-02 of the Administrative Code and 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 Chapter 119. of the Revised Code.
(C) Filing or mailing a motion or notice for a board adjudication 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 4779-11-02 of the Administrative Code.
(2) The date of mailing any document concerning a board adjudication proceeding, including, but not limited to, a notice of opportunity or adjudication order, shall be the date appearing on the certified mail receipt, if inscribed by the USPS, or the next business day following the date mailed as indicated by board records.
(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.
(F) The board may consider circumstances when making a decision regarding charges or disciplinary action. Circumstances the board may consider include, but are not limited to the following:
(1) Whether the act is willful, intentional, irresponsible, or unintentional;
(2) The frequency of the occurrence of the act at issue;
(3) Whether the act represents a pattern of commissions or omissions;
(4) The outcome of a licensee's or applicant's actions; or
(5) The level of harm or potential harm to a client.
R.C. 119.032 review dates: 12/27/2012 and 01/02/2018
Promulgated Under: 119.03
Statutory Authority: 4779.08
Rule Amplifies: RC 119.06, 119.09, 4779.08, 4779.28
Prior Effective Dates: 01/23/03
(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.
(C) Respondent or respondent's 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.
(A) The board may 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 be in the interest of public safety.
(B) Upon written or oral motion of respondent or respondent's representative of record, the hearing examiner assigned to the proceeding may continue the hearing.
(C) A motion for continuance shall be filed not later than fourteen calendar days prior to the scheduled date of the hearing.
(D) A hearing shall not be continued upon motion by respondent or respondent's representative of record unless a showing of reasonable cause and proper diligence is presented. Before granting a continuance, consideration shall be given to harm to the public which may result from a delay in the proceedings.
(E) In no event will a motion for continuance filed by respondent or respondent's representative of record less than five calendar 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.
(F) If a continuance is granted, the board or the hearing examiner assigned to the proceeding shall immediately establish a new hearing date unless circumstances prohibit.
(G) When a hearing has been continued, the board shall make a reasonable attempt to notify all of the witnesses subpoenaed for a hearing.
(A) 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 board or, if the board is not in session, by the president of the board acting on behalf of the board.
(B) The board shall adhere to all timelines set by the Revised Code or by the hearing examiner. No motion for an extension of time shall be granted by the board unless:
(1) The party filing the motion demonstrates that an extraordinary situation exists which could not have been anticipated and which would justify the granting of a motion for extension of time; and
(2) The respondent or respondent's representative of record can show that no harm to the public will result from the delay in the proceedings. In making a determination about harm to the public, the board may consider whether the respondent holds a current, valid license to practice under R.C. 4779 in Ohio, whether the license has been suspended, or whether the license has been voluntarily surrendered.
(C) Without leave of the board neither respondent nor any representative of record shall be permitted to address the board at the time of the board's consideration of the hearing examiner's report and recommendation. Any request for such leave shall be filed by motion no less than three business 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 and given an opportunity to respond. The board, or if the board is not in session, the board president acting on behalf of the board, shall render a decision as to whether to permit respondent or a representative of record to address the board. If a request to address the board is granted, the opposing representative may also address the board.
(D) If a request to address the board is granted, the parties shall speak no longer than ten minutes each, inclusive of any questions and answers. The time to address the board may be divided, consistent with the approach used for appellate practice, if such division is mutually agreed to by both parties and approved by the board.
(A) Except as otherwise provided under 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 4779-11-03 of the Administrative Code, shall be in writing and filed in accordance with this rule.
(B) A written motion shall state with particularity the 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 4779.29 of the Revised Code, a motion shall be made no later than fourteen days before the scheduled date of the hearing, unless 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 by the board or hearing examiner. A moving party may reply to a response only with the permission of the board or hearing examiner.
(D) The board or hearing examiner shall rule on a written motion in writing and shall issue a copy of the ruling to respondent or respondent's 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 any oral motion made at a hearing shall be included in the record of the hearing.
(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' rights. The legal counsel shall neither examine nor cross-examine any witness.
(B) If a witness refuses to answer a question ruled proper at a hearing or disobeys a subpoena, the board, pursuant to section 119.09 of the Revised Code, may institute contempt proceedings or file a motion to compel.
(C) A representative of record may move for a separation of witnesses at the hearing.
(A) The board or hearing examiner shall admit evidence of any prior action entered by the state board of orthotics, prosthetics and pedorthics of Ohio against the respondent.
(A) Upon written request by respondent or 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 respondent or respondents' representative of record requests to be subpoenaed.
(C) Except upon leave of 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 in order to allow sufficient time for preparation and service of the subpoena.
(D) If the number of subpoenas requested by respondent or 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. Absent such limitation, the board shall issue each subpoena requested by respondent or counsel for respondent within ten business days of request.
(E) After a hearing has commenced the board or hearing examiner may order the issuance of a subpoena for purposes of hearing to compel the attendance and testimony of a witness or production of books, records, or papers.
(A) No board member or hearing examiner shall initiate or consider ex parte communication or communication on behalf of only one party concerning a pending adjudication. Nothing in this paragraph shall preclude a hearing examiner or board staff member from engaging in ex parte communication regarding a procedural matter or matter affecting the efficient conduct of the hearing with the representatives of record
(B) A hearing examiner or board member shall disclose on the record the source and substance of any ex parte or attempted ex parte communication other than communication regarding a procedural matter or matter affecting the efficient conduct of the hearing permitted in paragraph (A) of this rule. Such disclosure shall be made at the hearing or at a board meeting prior to deliberating on the affected adjudication proceeding
(A) Any matter which is the subject of a hearing, a notice of opportunity for hearing, or regarding a board investigation into compliance with Chapter 4779. of the revised Code or agency-level 4779 of the Administrative Code, may be settled at any time prior to initiation or completion of formal action under R.C. Chapter 119. by the board on the matter.
(B) A settlement shall be negotiated on behalf of the board by any board member designated to act as liaison for compliance/enforcement actions of the board. Such board member may provide sufficient instructions and guidance to staff and/or the board's assistant attorney general for such other representatives of the board to conduct negotiations in the board member's stead.
(C) A settlement agreement shall be in writing and shall be submitted for ratification to the board only after it has been subscribed to by respondent and/or respondent's attorney.
(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.
(A) Any representative of record may serve upon the opposing representative of record a written request for a list of both the witnesses and documents intended to be introduced at hearing. Except in the case of summary suspensions, within twelve days of service of the request the opposing representative of record shall supply such a list to the requesting representative. 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 the hearing. Failure to comply with this request may result in exclusion from the hearing of such testimony or documents that were the subject of the request upon motion of the representative of record to whom disclosure is refused.
(B) The hearing examiner shall, upon motion of any representative of record, issue an order setting forth:
(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. All representatives of record shall participate in the prehearing conference prepared to discuss the items enumerated in this paragraph. The hearing examiner may issue a procedural order based on information obtained at a prehearing conference. A prehearing conference may be held for any of the following purposes:
(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) With or without a written motion from a representative of record, the hearing examiner may convene a status conference with representatives of record to address any matter related to preparation for the hearing or the conduct of the hearing. The hearing examiner may issue such orders related to preparation for the hearing and the conduct of the hearing which in the judgment of the hearing examiner facilitate the just and efficient disposition of the subject of the hearing.
(A) Any disciplinary action taken by the board pursuant to sections 4779.28, and/or 4779.29, and/or 4779.30, and/or 4779.33 of the Revised Code which results in suspension from practice shall either lapse by its own terms or contain a written statement of the conditions under which the license or certificate may be reinstated.