Chapter 5101:6-51 Hearings for recovery of ovrpayments

5101:6-51-01 Chapter 119 hearings conducted under authority of section 5111.914 of the Revised Code: definitions and scope of applicability.

(A) The following definitions apply to Chapter 5101:6-51 of the Administrative Code.

(1) "Affected party" means a person whose interests are subject to an adjudication by the Ohio department of job and family services (ODJFS) under authority of section 5111.914 of the Revised Code.

(2) "Appellant" means an affected party who has requested an adjudication hearing pursuant to Chapter 119. of the Revised Code.

(3) "Department" means ODJFS.

(4) "Depository agent" means the official mailing address of the office of legal and acquisition services of ODJFS for the purpose of receiving correspondence or filings for any hearing held under authority of section 5111.914 of the Revised Code.

(5) "Director" means the director of ODJFS or the director's designee.

(6) "Hearing" means a hearing held by an issuing state agency under authority of section 5111.914 of the Revised Code and that is in compliance with sections 119.06 to 119.13 of the Revised Code.

(7) "Issuing state agency" means a state agency that has entered into a contract with ODJFS under section 5111.91 of the Revised Code and that has issued a notice of overpayment under authority of section 5111.914 of the Revised Code. This shall not include a political subdivision directly or by contract.

(8) "ODJFS" means the Ohio department of job and family services.

(9) "Order" means an adjudication issued by ODJFS of the facts and/or sums in controversy in any hearing conducted by an issuing state agency under the authority of section 5111.914 of the Revised Code that is a final disposition of the director as regard to the rights, duties, privileges, benefits, legal relationships, jurisdictional status, or standing of any appellant of a proceeding initiated under authority of section 5111.914 of the Revised Code.

(10) "Person" means a person, firm, corporation, association, or partnership.

(11) "Provider" means any person, institution or entity, governmental or non-governmental, that furnishes medicaid services under a provider agreement with ODJFS pursuant to Title XIX of the Social Security Act, 79 Stat. 286 (1965), 42 U.S.C. 1396 , as amended.

(12) "Provider agreement" means a contract between ODJFS and a provider of medical services and supplies pursuant to rules contained in Chapter 5101:3-1 of the Administrative Code.

(13) "Repayment due date" means the date that payment is due to the state based upon notification of an identified overpayment. The repayment due date shall be established as follows:

(a) If a settlement is reached in accordance with section 5111.914 of the Revised Code, the repayment shall be due no later than the forty-fifth day after full execution of the settlement. A settlement is fully executed only after all parties to the settlement have signed the settlement and ODJFS has issued written approval of the settlement either by signing the settlement or by separate written approval.

(b) If settlement is not reached in accordance with section 5111.914 of the Revised Code, the repayment shall be due within forty-five days after the effective date of the adjudication order.

(B) Scope of applicability.

(1) Chapter 5101:6-51 of the Administrative Code prescribes the procedures to be followed in all hearings held before an issuing state agency pursuant to section 5111.914 of the Revised Code. The procedures set forth in Chapter 5101:6-51 of the Administrative Code shall be followed in all instances of notices of overpayments issued by the issuing state agency except as follows. The issuing state agency is not required to follow the procedures set forth in Chapter 5101:6-51 of the Administrative Code in cases where a provider requests one or more claims adjustments if all of the following conditions are met:

(a) The provider's request is not a request to negotiate, or to dispute a notice of overpayment, and

(b) The adjustments can be completed in full within forty-five days of the provider's request.

(2) An issuing state agency's proposed findings shall be limited to findings of overpayments for medicaid services where the alleged overpayments were made under the component of the medicaid program that the issuing state agency administers.

(3) Proposed findings issued under authority of section 5111.914 of the Revised Code are not a "final fiscal audit" as defined in rule 5101:6-50-01 of the Administrative Code.

(4) The right to a hearing pursuant to authority provided in section 5111.914 of the Revised Code is limited to an issuing state agency's proposal to recover a medicaid overpayment.

(5) The provisions of Chapter 5101:6-51 of the Administrative Code are to be interpreted and construed to achieve their general purpose of providing orderly and fair procedures for conducting hearings before a state agency.

Effective: 08/01/2011
R.C. 119.032 review dates: 05/12/2011 and 08/01/2016
Promulgated Under: 119.03
Statutory Authority: 5111.02 , 5111.85
Rule Amplifies: 119.07 , 119.08 , 119.09 , 119.10 , 119.13 , 5111.02 , 5111.85 , 5111.91 , 5111.914
Prior Effective Dates: 6/22/06

5101:6-51-02 Chapter 119 hearings conducted under authority of section 5111.914 of the Revised Code: notice of overpayment, negotiation of settlement, terms of settlement, referral to the attorney general for collection, and repayment.

(A) Notice of overpayment.

An issuing state agency that identifies a medicaid overpayment shall send a notification, by certified mail, return receipt requested, of the overpayment amount to the medicaid provider. The issuing state agency shall send a copy of the notification to ODJFS not later than five business days after sending the notification to the provider. The notification of overpayment shall contain a clear statement of all the following:

(1) The amount of the overpayment including interest charges;

(2) A general description of the grounds for the overpayment finding;

(3) A request that the provider voluntarily repay the overpayment;

(4) The address where payment should be made;

(5) The acceptable methods of payment;

(6) A statement that if voluntary repayment is not made in full within thirty days of the provider's receipt of notification that the issuing state agency will proceed with formal notice of hearing rights in accordance with section 5111.914 of the Revised Code; and

(7) A statement that as an alternative to payment the provider may within thirty days of the date of mailing of the notification submit to the issuing state agency a written statement disputing the overpayment amount and requesting an opportunity to negotiate a settlement of the overpayment.

(B) Negotiation of settlement.

The issuing state agency may in its sole discretion attempt to negotiate a settlement in accordance with this rule. If the provider files a written request to negotiate within thirty days of the date of mailing of the notification in accordance with paragraph (A)(7) of this rule, and the issuing state agency exercises its discretion to attempt to negotiate a settlement, the issuing state agency shall notify the provider that the agency is rescinding its notification of overpayment in order to negotiate a settlement of the overpayment.

(1) The issuing state agency must submit a negotiated settlement to ODJFS for review and approval or rejection within thirty days after the provider's written statement filed in accordance with paragraph (A)(7) of this rule. If the issuing state agency does not submit a negotiated settlement to ODJFS within thirty days, the issuing state agency shall issue a notice of opportunity for hearing in accordance with section 5111.914 of the Revised Code and rule 5101:6-51-04 of the Administrative Code.

(2) If ODJFS signs the agreement or issues written approval, the provider shall make repayment under the terms of the settlement.

(3) If ODJFS rejects the settlement, the issuing state agency shall issue a notice of opportunity for hearing in accordance with section 5111.914 of the Revised Code and rule 5101:6-51-04 of the Administrative Code.

(4) If the issuing state agency exercises its discretion to not attempt to negotiate a settlement, the issuing state agency shall issue a notice of opportunity for hearing in accordance with section 5111.914 of the Revised Code and rule 5101:6-51-04 of the Administrative Code.

(C) Terms of settlement.

A negotiated settlement shall comply with the following standards:

(1) The settlement shall expressly require repayment within forty-five days of the date of the later of either full execution of the settlement or final written approval of the settlement by ODJFS.

(2) The negotiated settlement shall cover both the federal share and state share of the amount the parties agree upon and interest charges.

(3) The negotiated settlement shall clearly identify what disputed sums or facts are the subject of final resolution by the settlement and shall identify the grounds upon which any amounts are compromised.

(4) The negotiated settlement may compromise the amount repaid only on the following grounds:

(a) The provider produces evidence showing that specified sums identified are not an overpayment;

(b) A sum was identified as an overpayment based upon an incorrect application of law or fact; or

(c) A sum was identified as an overpayment based upon a clearly identified clerical error.

(5) The settlement may contain any other terms the parties consider necessary for execution of the settlement but such terms shall be invalid if they conflict with laws or rules governing the medicaid program.

(6) A negotiated settlement shall not be valid and enforceable unless ODJFS signs the agreement or issues other written approval of the agreement.

(D) Nothing shall preclude settlement negotiations on the same or different grounds after the issuance of a notice of opportunity for hearing issued under authority of section 5111.914 of the Revised Code.

(E) Referral to the attorney general for collection.

(1) If a settlement is reached in accordance with this rule and the repayment is not received by the forty-fifth day after full execution of the settlement or final written approval of the settlement by ODJFS, the issuing state agency shall refer the matter to the attorney general's office for collection as required by section 131.02 of the Revised Code.

(2) If settlement is not reached in accordance with section 5111.914 of the Revised Code, repayment shall be due within forty-five days after the effective date of the adjudication order that is issued pursuant to a hearing initiated under section 5111.914 of the Revised Code. Except as provided in paragraph (E)(3) of this rule, if repayment is not received by the forty-fifth day after the effective date of the adjudication order, the issuing state agency shall refer the amount to the attorney general for collection as required by section 131.02 of the Revised Code.

(3) If an appeal of the adjudication order is timely filed and a stay is granted by the court within forty-five days of the issuance of the adjudication order, the issuing state agency shall not refer the matter to the attorney general's office for collection until the expiration or lifting of the order granting the stay, or until such other order of the court permits implementation of the adjudication order.

(4) An issuing state agency shall not certify a medicaid overpayment for collection by the attorney general under section 131.02 of the Revised Code without first following the procedures required by section 5111.914 of the Revised Code and Chapter 5101:6-51 of the Administrative Code.

(5) The issuing state agency shall send a report at least quarterly to ODJFS enumerating the status of recovery of any amounts identified in notices issued under authority of this rule. The report shall be in a form and manner specified by ODJFS.

Effective: 08/01/2011
R.C. 119.032 review dates: 05/12/2011 and 08/01/2016
Promulgated Under: 119.03
Statutory Authority: 5111.02 , 5111.85
Rule Amplifies: 119.06 , 119.07 , 119.09 , 131.02 , 5111.02 , 5111.85 , 5111.91 , 5111.914
Prior Effective Dates: 6/22/06

5101:6-51-03 Chapter 119 hearings conducted under authority of section 5111.914 of the Revised Code: interest for findings pursued for recovery.

(A) Pursuant to division (E) of section 5111.03 of the Revised Code, any provider of services or goods contracting with ODJFS pursuant to Title XIX of the Social Security Act that, without intent, obtains payments under Chapter 5111. of the Revised Code in excess of the amount to which the provider is entitled, thereby becomes liable for payment of interest on the amount of the excess payments at the maximum real estate mortgage rate on the date the payment was made to the provider for the period from the date upon which payment was made to the date upon which repayment is made to the state.

(B) Interest payments shall be charged on a daily basis for the period from the date the overpayment was made to the date upon which repayment is received by the state.

(C) The "date upon which payment was made" means the date of the overpayment and shall be determined in accordance with the following:

(1) For any overpayment that is identified as the result of either a reasonable cost based reimbursement settlement, or cost report reconciliation, or rate setting reimbursement settlement, or similar cost settlement reporting, the "date of the overpayment" shall be ten days from the date the issuing state agency's notice of overpayment is received by the provider as shown by the U.S. postal service return receipt slip.

(2) For any other finding of overpayment by the issuing state agency, the "date of the overpayment" shall be the latest date of the warrant issued in payment for any of the paid claims that form the basis for the overpayment finding.

(D) The "date upon which repayment is received by the state" shall mean one of the following:

(1) The date the repayment is time-stamped by the issuing state agency;

(2) The date the repayment is deposited as certified mail with the U.S. postal service; or

(3) In the case of any repayment through offset of future claims for reimbursement, the date the repayment is posted on the books of the issuing state agency.

(E) The maximum real estate mortgage rate shall be calculated pursuant to division (B)(4) of section 1343.01 of the Revised Code, as amended. Namely, the rate shall be three per cent in excess of the discount rate on ninety-day commercial paper in effect at the federal reserve bank in the fourth federal reserve district on the day the repayment was made. (The " discount rate on ninety-day commercial paper in effect at the federal reserve bank in the fourth district" is the rate that the federal reserve bank in the fourth district uses as the interest rate it charges to member banks.)

(F) Interest payments shall be calculated on the basis of simple interest.

(G) Interest shall be charged on medicaid overpayments that have occurred on and after April 24, 1978, and that are identified for repayment after August 1, 1982.

(H) The issuing state agency may waive the interest penalty when repayment is made in full and the amount of interest owed by any single provider is less than fifty dollars. The issuing state agency may waive the interest penalty when voluntary repayment of individual claims is made by a provider before any notification by the issuing agency that an overpayment has occurred.

Effective: 08/01/2011
R.C. 119.032 review dates: 05/12/2011 and 08/01/2016
Promulgated Under: 119.03
Statutory Authority: 5111.02 , 5111.85
Rule Amplifies: 5111.02 , 5111.03 , 5111.85 , 5111.91 , 5111.914
Prior Effective Dates: 6/22/06

5101:6-51-04 Chapter 119 hearings conducted under authority of section 5111.914 of the Revised Code: notice and requesting a hearing.

(A) Written notice of intended action.

(1) Whenever an issuing state agency proposes to take an action under authority of section 5111.914 of the Revised Code, the issuing state agency shall send the affected party written notice of the agency's intended action ("notice of intended action"). The issuing state agency shall mail, certified mail, return receipt requested, such notice , which shall at a minimum include all of the following:

(a) Notice of the specific action or actions the agency intends to take;

(b) Charges or reasons for the proposed action or actions;

(c) Statute or rule directly involved;

(d) A statement that the affected party is entitled to a prior hearing if the hearing is requested within thirty days from the date of mailing the notice;

(e) A statement that the affected party may appear at a hearing in person or through an attorney;

(f) A statement that the affected party may present positions entirely in writing, may examine evidence and adverse witnesses at the hearing, and may introduce evidence and bring forth witnesses on behalf of the affected party; and

(g) A statement that rules governing affected party hearings before the issuing state agency are to be found in Chapter 5101:6-51 of the Administrative Code.

(2) The issuing state agency shall also mail a copy of the notice to the affected party's attorney or other representative of record. To qualify as an attorney or representative of record, the party or the attorney or representative must notify the issuing state agency, in writing, that the attorney or representative is to be designated the attorney or representative of record. The notification must include the address where the issuing state agency should mail the notice to the attorney or representative of record. The mailing of notice to the affected party's attorney or representative is not deemed to perfect service of the notice. Failure to mail a copy of the notice to the attorney or representative of record shall not result in failure of otherwise perfected service upon the affected party. In those instances where an affected party is a corporation doing business in Ohio or is incorporated in Ohio, the mailing of notice to the corporation's statutory agent pursuant to sections 1701.07 and 1703.19 of the Revised Code shall perfect service provided there is compliance with all the requirements of paragraph (A) of this rule.

(3) When the notice required by paragraph (A) of this rule is returned because of inability to deliver, the issuing state agency may either have its employee make personal delivery of the notice or cause the notice to be published once a week for three consecutive weeks in a newspaper of general circulation in the county where the last known place of residence or business of the affected party is located. The issuing state agency shall mail, first class mail, a copy of the first publication of the notice in a newspaper to the affected party at the last known place of residence or business. The notice is deemed received as of the date of last publication. Nothing in this rule is to be construed to limit or otherwise prohibit the utilization of sections 1701.07 and 1703.19 of the Revised Code to perfect service of process.

(B) Request for a hearing.

(1) Any request for a hearing made as the result of notice issued pursuant to paragraph (A) of this rule must be made in writing and mailed or delivered to the issuing state agency within thirty calendar days of the mailing or personal delivery of the notice. If a request for a hearing is mailed or delivered to the issuing state agency, the request is deemed to have been made as follows:

(a) If the request is mailed by certified mail, the request is deemed to have been made as of the date stamped by the U.S. postal service on its receipt form (PS form 3800 or any future equivalent postal service form).

(b) If the request is mailed by regular U.S. mail, the request is deemed to have been made as of the date of the postmark appearing upon the envelope containing the request. In those cases where a postmark is illegible or fails to appear on the envelope, the request is deemed to have been made as of the date of its receipt by the issuing state agency as evidenced by the agency's time stamp.

(c) If a request for a hearing is mailed or personally delivered to a party or address other than the issuing state agency, the request is deemed to have been made as of the date of its receipt by the issuing state agency as evidenced by the agency's time stamp.

(d) If a request for a hearing is personally delivered to the issuing state agency, the request is deemed to have been made as of the date of its receipt as evidenced by the agency's time stamp.

(e) If a request for a hearing is made by facsimile transmission or by electronic mail, the request is deemed to have been made as of the date of its receipt as evidenced by the receipt date generated by the facsimile transmission or as shown on the electronic mail received by the issuing state agency.

(2) Any request for a hearing made as the result of notice issued by publication pursuant to paragraph (A)(3) of this rule must be made in writing and delivered to the proper address listed in the notice of the issuing state agency within thirty calendar days of the notice's final date of publication.

(3) All requests for hearings must clearly identify both the affected party involved and the proposed action that is being contested.

(4) A request for a hearing is not valid if it is delivered to ODJFS.

(C) If an affected party fails to request a hearing or if the request is not timely, the issuing state agency shall request ODJFS to issue a final and binding order of adjudication adopting and ratifying the allegations contained in the notice of intended action.

Effective: 08/01/2011
R.C. 119.032 review dates: 05/12/2011 and 08/01/2016
Promulgated Under: 119.03
Statutory Authority: 5111.02 , 5111.85
Rule Amplifies: 119.06 , 119.07 , 119.09 , 119.13 , 5111.02 , 5111.85 , 5111.91 , 5111.914
Prior Effective Dates: 6/22/06

5101:6-51-05 Chapter 119 hearings conducted under authority of section 5111.914 of the Revised Code: appointment and powers of a hearing examiner and rules of practice.

(A) Initial scheduling of the hearing.

(1) When an affected party timely requests a hearing, the issuing state agency shall set the date, time, and place for the hearing and notify the appellant of the scheduling. The issuing state agency shall initially schedule the hearing not earlier than seven calendar days but not later than fifteen days after the hearing was requested. The first notification concerning a scheduled hearing shall be written and sent registered mail, return receipt requested. All subsequent letters and notices shall be sent by regular U.S. mail.

(2) Nothing in this rule shall be construed so as to prevent the issuing state agency from postponing and rescheduling any hearing upon its own motion or upon the motion of any appellant who can show good cause for such a request

(3) Nothing in this rule shall be construed from preventing the issuing state agency and the appellant from entering into a written agreement establishing the time, date, and place of the hearing.

(B) Joinder of individual cases.

On its own motion, or on motion of the appellant, the issuing state agency or the hearing examiner may join any individual cases where there exist incidents of common ownership or interest and where joinder would be appropriate for efficient and economic fairness to the parties.

(C) Computation of time deadlines.

Section 1.14 of the Revised Code controls the computing of time deadlines imposed by Chapter 119. of the Revised Code.

(D) Rules of practice in hearings conducted under this chapter.

In all hearings conducted under section 5111.914 of the Revised Code, the following rules of practice shall be followed:

(1) The attorney general, or assistants or special counsel designated by the attorney general, will represent the issuing state agency. The director of the issuing state agency may designate staff members of the issuing state agency to assist the attorney general in the preparation and presentation of such hearings and to be present at all times during the hearing and any pre-hearing conferences.

(2) Any individual not appearing pro se and any corporation, partnership, association, or other entity must be represented by an attorney admitted to the practice of law in the state of Ohio. Individuals authorized to practice law in any other jurisdiction may be permitted to represent an appellant in hearings under section 5111.914 only upon order of a court of common pleas of Franklin county. When the appellant is represented by more than one attorney, one attorney must be designated by the appellant as "trial counsel" and that attorney is deemed the appellant's attorney of record and is primarily responsible for the appellant's case at the hearing. No attorney representing an appellant is permitted to withdraw from any hearing without prior notice being served upon the issuing state agency and prior approval by the hearing examiner.

(E) Authority of hearing examiners.

The issuing state agency shall assign a hearing examiner to conduct any hearing held under authority of section 5111.914 of the Revised Code. Any person assigned to be a hearing examiner must be admitted to the practice of law in the state of Ohio. The hearing examiner may be an employee of the issuing state agency or under contract to the issuing state agency. The hearing examiner has the same powers as granted to the issuing state agency in conducting the hearing. These powers include, but are not limited to, the following:

(1) The general authority to regulate the course of the hearing and to issue orders governing the conduct of the hearing.

(2) The authority to administer oaths or affirmations, order the production of documents and the attendance of witnesses, call and examine witnesses in a reasonable and impartial manner, and to determine the order in which the participants to a hearing will present testimony and be examined in a manner consistent with essential fairness and justice.

(3) The authority to pass upon the admissibility of evidence, rule on objections, procedural motions, and other procedural matters.

(4) The authority to issue orders intended to facilitate settlement of the case, including the scheduling of settlement conferences, directing the exchange of offers and demands, and any other actions that may facilitate the prompt resolution of disputed matters.

(5) The authority to hold one or more pre-hearing conferences of the participants for the purpose of resolving issues that can be resolved by the participants including facilitation of a settlement, identifying the witnesses to be presented and the subject of their testimony, discussing possible admissions or stipulations regarding the authenticity of records, identifying and marking exhibits, and ruling on any procedural motions of the participants, resolving outstanding discovery claims, and clarifying the issues to be addressed at the hearing, and discussing any other matters deemed appropriate by the hearing examiner for the thorough and expeditious preparation and disposition of the case.

(6) The authority to take such other actions as might be necessary to avoid unnecessary delay, prevent presentation of irrelevant or cumulative evidence, prevent argumentative, repetitious, or irrelevant examination or cross-examination, and to assure that the hearing proceeds in an orderly and expeditious manner.

(7) Nothing in this rule nor in any other rule of the Administrative Code is to be construed as granting a hearing examiner the authority to dismiss any hearing. Nothing in this rule nor in any other rule of the Administrative Code limits the authority of the issuing state agency to withdraw its written notice of intended action.

(8) The hearing examiner may require the submission of briefs and memoranda at any time during the proceeding. The hearing examiner may limit these filings to one or more specific issues and may prescribe procedures and time schedules for their submission. All briefs, memoranda, motions or other pleadings are subject to the following requirements:

(a) If any unreported court decision is cited in any brief or memorandum, a copy of such decision is to be attached to the brief or memorandum containing the citation.

(b) All briefs, memoranda, motions or other pleadings must be filed with the issuing state agency. A certificate of service is to be attached attesting both to the service of a copy of the pleading on the opposing party and the provision of a copy to the hearing examiner.

(c) Only those pleadings, orders, and other papers filed with the issuing state agency shall be a part of the official record.

(d) All briefs, memoranda, motions, or other pleadings and papers must be on eight-and-one-half-inch by eleven-inch paper and double-spaced.

(e) All orders, reports, recommendations, and rulings issued by the hearing examiner are to be signed, dated, and filed with the issuing state agency.

(f) All exhibits, or other evidence admitted into the record or proffered, shall be filed by the hearing examiner with the issuing state agency at the conclusion of the hearing.

(F) Withdrawal of notice of intended action.

The issuing state agency, upon its own motion, at any time prior to the issuance of an order of adjudication, may withdraw its written notice of intended action. Such withdrawal shall be without prejudice to the rights of the parties. An appellant may withdraw a request for a hearing only with the prior approval of the hearing examiner.

Effective: 08/01/2011
R.C. 119.032 review dates: 05/12/2011 and 08/01/2016
Promulgated Under: 119.03
Statutory Authority: 5111.02 , 5111.85
Rule Amplifies: 119.06 , 119.07 , 119.08 , 119.09 , 119.10 , 119.13 , 5111.02 , 5111.85 , 5111.91 , 5111.914
Prior Effective Dates: 6/22/06

5101:6-51-06 Chapter 119 hearings conducted under authority of section 5111.914 of the Revised Code: discovery.

(A) Hearing examiner may allow pre-hearing discovery.

(1) As a part of the authority to conduct the hearing, and except as provided in paragraph (B) of this rule, the hearing examiner may allow pre-hearing discovery of any matter that is not privileged or confidential and that is relevant to the subject matter of the proceeding, provided that such discovery is necessary to facilitate the thorough and adequate preparation of the hearing. The participants to any hearing governed by this chapter may also conduct pre-hearing discovery by mutually agreeable methods or by stipulations subject to approval by the hearing examiner. When a method of pre-hearing discovery is permitted, it shall be conducted in accordance with the Ohio Rules of Civil Procedure (7/1/2000) unless the hearing examiner orders otherwise, and except as modified by paragraph (B) of this rule. Use of discovered material at any hearing shall also be governed by the Ohio Rules of Civil Procedure (7/1/2000).

(2) When permitted pursuant to this rule, pre-hearing discovery may begin immediately after a hearing request is timely made, and must be completed before the actual commencement of the hearing. The hearing examiner may limit the length of the time allowed for discovery and may shorten or lengthen the time allowed for response to discovery requests. Pre-hearing discovery may be obtained through use of interrogatories, requests for the production of documents, permission to enter upon land or other property, depositions, and requests for admissions.

(3) Nothing in this rule prohibits an appellant or the issuing state agency from gaining access to any information made public by the operation of state law.

(B) Depositions. For the purpose of conducting a hearing, the issuing state agency or any appellant may take depositions of witnesses residing within or without the state in the same manner as is prescribed by law for the taking of depositions in civil actions in the court of common pleas of this state. Depositions of state employees are to be conducted in the Columbus offices of the issuing state agency during normal business hours unless other arrangements are approved by the issuing state agency.

(C) Subpoena issuance and enforcement.

The issuing state agency, upon its own motion or that of any appellant, shall issue a subpoena requiring the attendance of witnesses and the production of books and records as are necessary for the purpose of conducting a hearing.

(1) Upon the request of the appellant, the issuing state agency shall issue a subpoena for any witness or a subpoena duces tecum to compel the production of any books, records, or papers. The issuing state agency shall issue such subpoena in blank to a party requesting it, who is solely responsible for completing the subpoena form, including the address where the person is to be served, and returning it to the issuing state agency along with a written request for service. The written request along with the completed subpoena must be received by the issuing state agency no later than twenty-one business days before commencement of the hearing or deposition, unless otherwise ordered for good cause shown. Upon its own initiative and for its own use, the issuing state agency may issue a subpoena for any purpose set forth in this rule or otherwise authorized by law. At its discretion, the issuing state agency may make available electronically a subpoena in blank and may authorize electronic submission of a completed subpoena.

(2) All subpoenas issued under this rule are to be directed to the sheriff of the county where the person to be served resides or is found. The subpoena is to be served and returned in the same manner as a subpoena in a criminal case. Fees and mileage of the sheriff and the witness will be the same as that allowed in the court of common pleas in criminal cases. The issuing state agency will pay allowable fees and mileage.

(3) In any case of disobedience or neglect of any subpoena served upon any person, or the refusal of any witness to testify to any matter in which there may be lawful interrogation, the issuing state agency will apply to the court of common pleas where such disobedience, neglect, or refusal occurs for an order to compel obedience by attachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from such court, or a refusal to testify therein.

Effective: 08/01/2011
R.C. 119.032 review dates: 05/12/2011 and 08/01/2016
Promulgated Under: 119.03
Statutory Authority: 5111.02 , 5111.85
Rule Amplifies: 119.06 , 119.07 , 119.08 , 119.09 , 119.10 , 119.13 , 5111.02 , 5111.85 , 5111.91 , 5111.914
Prior Effective Dates: 6/22/06

5101:6-51-07 Chapter 119 hearings conducted under authority of section 5111.914 of the Revised Code: conduct of the hearing and adjudication order.

(A) Conduct of the hearing.

(1) The issuing state agency shall employ or contract with a hearing examiner to conduct all hearings initiated under authority of section 5111.914 of the Revised Code.

(2) The date, time, and place of any hearing under authority of section 5111.914 of the Revised Code is set by the issuing state agency or the hearing examiner. The hearing examiner shall provide written or electronic notice before the date of the hearing to all participants in the hearing and file a copy of the written notice in the record of the hearing.

(3) Subject to the prior approval of the hearing examiner, any appellant may choose to present the case entirely in writing provided that a written request is made by the appellant no later than fourteen business days before the date scheduled for the hearing. Any request to present the case entirely in writing must be filed with the hearing examiner. Any appellant who elects to present the case entirely in writing must do so in accordance with procedures ordered by the hearing examiner. The hearing examiner's order must be in writing and filed in the record of the hearing. In the event that the appellant elects to present its case in writing, the issuing state agency may elect to present its case entirely in writing. Nothing in this rule is to be construed as preventing the issuing state agency from compelling the attendance of the appellant or other witnesses at the hearing and questioning the appellant or other witnesses as if on cross-examination. Nothing in this rule is to be construed as preventing any appellant from examining any witnesses or evidence presented by the issuing state agency at the hearing.

(4) During the course of any hearing, the participants to the proceeding may enter into oral stipulations of fact, procedure, or the authenticity of documents that will be incorporated into the record and will bind the conduct of the participants. The hearing examiner conducting the case may require oral stipulations to be reduced to writing and submitted to the hearing examiner. The hearing examiner assigned to conduct a hearing has the power to rule on the admissibility of evidence or testimony, but a participant may make objections to the rulings thereon. If the hearing examiner refuses to admit evidence or testimony, the participant seeking admission of same must make a proffer thereof and such proffer will be made a part of the record of the hearing. The hearing examiner may refer to the guidelines contained in the Ohio Rules of Evidence (7/1/2007) in making decisions on admissibility.

(B) Findings of fact, conclusions, recommendations, and objections.

(1) Upon the conclusion of any hearing, the hearing examiner shall prepare a written report of findings of fact, conclusions of law, and recommendations of departmental action to be taken in disposition of the case. The hearing examiner shall file the report, together with a complete record of the proceeding, with the issuing state agency within not more than forty-five days after the conclusion of the hearing, unless the parties agree to an extension of the time for the filing of the hearing examiner's report. Within five days of its completion, the issuing state agency shall send by certified mail, return receipt requested, to the appellant or the appellant's attorney, a copy of the hearing examiner's report. The report will be considered to have been mailed as of the date appearing on U.S. postal service form 3800 or any future equivalent postal service form. Also, on completion of the report and recommendation, the issuing state agency shall submit its hearing officer's report and recommendation and the complete record of proceedings, including all transcripts, to ODJFS for final adjudication.

(2) An appellant may file written objections to the hearing examiner's report with ODJFS. Any such objections must be received by ODJFS no later than ten days after the appellant receives the report. Any such objections must be filed with the depository agent of ODJFS. ODJFS may grant an extension of time to file objections if the appellant's written request for an extension is received by ODJFS no later than ten days after the appellant's receipt of the report. The date the appellant receives the hearing examiner's report is the date indicated on the U.S. postal service form 3800 or any future equivalent postal service form. The director will consider timely written objections before approving, modifying, or disapproving the recommendations of the hearing examiner.

(C) Final order of adjudication.

(1) Recommendations of the hearing examiner may be approved, modified, or disapproved by the director. The director may remand the matter back to the issuing state agency to allow for additional testimony to be taken and permit the introduction of further documentary evidence. In those instances where the director modifies or disapproves the recommendations of the hearing examiner, the director will include the reasons therefore and incorporate them into the final order of adjudication.

(2) After the director has entered an order approving, modifying, or disapproving the hearing examiner's recommendation on the ODJFS journal of proceedings, the director will mail to the appellant and any attorney of record by certified mail, return receipt requested, a copy of the order and a statement of the time and method by which an appeal may be perfected. The director shall provide a copy of the order to the issuing state agency.

(D) Appeal of final adjudication order.

(1) Any appellant against whom a final order of adjudication is entered, pursuant to this rule, may appeal that order to the Franklin county court of common pleas.

(2) Any appellant desiring an appeal pursuant to this rule must file a notice of appeal with the depository agent of ODJFS and with the issuing state agency, setting forth the order appealed from and stating that the agency's order is not supported by reliable, probative, and substantial evidence and is not in accordance with the law. The notice may, but need not, set forth the specific grounds of the party's appeal beyond the statement that the agency's order is not supported by reliable, probative, and substantial evidence and is not in accordance with the law. In order to be determined filed with ODJFS, the notice of appeal must be received by ODJFS, as evidenced by an ODJFS date and time stamp, no later than fifteen days after the mailing to the affected party, as evidenced by U.S. postal service form 3800, or any future equivalent postal form, of the order to be appealed from. Appellant shall also file the notice of appeal with the court of common pleas no later than fifteen days after the mailing to the affected party, as evidenced by U.S. postal service form 3800, or any future equivalent postal form, of the order to be appealed from. In filing a notice of appeal with ODJFS, the issuing state agency or court, the notice that is filed may be either the original or a copy of the original notice.

Effective: 08/01/2011
R.C. 119.032 review dates: 05/12/2011 and 08/01/2016
Promulgated Under: 119.03
Statutory Authority: 5111.02 , 5111.85
Rule Amplifies: 119.06 , 119.07 , 119.08 , 119.09 , 119.10 , 119.12 , 119.13 , 5111.02 , 5111.85 , 5111.91 , 5111.914
Prior Effective Dates: 6/22/06, 1/20/11