Chapter 5101:6-5 Pre-Hearing Procedures; Postponement, Denial, or Dismissal of Hearing

5101:6-5-01 State hearings: procedures prior to the state hearing.

(A) The bureau of state hearings shall handle the receipt and processing of the request for a state hearing. When the hearing request is made to the local agency, the local agency shall date stamp the request, retain a copy, and mail or transmit the request to "ODJFS, Bureau of State Hearings, P.O. Box 182825, Columbus, Ohio 43218-2825," or fax to 614-728-9574 or email to bsh@jfs.ohio.gov [File Link Not Available], within one business day from the date of receipt.

(B) The local agency proposing the action about which the individual requested the state hearing shall complete an appeal summary. The summary consists of a prescribed form (the JFS 04067 "Appeal Summary" (rev. 5/2001), or for a medicaid managed care plan the JFS 01959 "Appeal Summary for Managed Care Plans" (rev. 6/2003)) and attachments, and is intended to provide a summary of all facts and documents relevant to the issue under appeal sufficient to demonstrate the basis for the local agency's action.

The local agency shall file its appeal summary with the bureau of state hearings at least three business days prior to the scheduled hearing date, and also make it available to the individual or authorized representative at least three days prior to the hearing for inspection. Failure to do so may be considered good cause for postponing or continuing the hearing if the individual has been materially disadvantaged by the failure.

(C) County conferences

(1) In order to avoid unnecessary state hearings, the local agency shall provide an opportunity for the individual to discuss and/or resolve disagreements with the local agency's actions or inaction. For a medicaid managed care plan, the plan's appeal or grievance process substitutes for the county conference requirement.

(2) When an individual requests a county conference, the local agency shall convene a conference presided over by the local agency's director or a designee. Both the local agency and the individual may bring whomever each reasonably wants to be at the conference. The issue to be decided by the presiding person shall be whether the local agency can show, by a preponderance of the evidence, that its action or inaction was in accordance with applicable regulations. If not, the presiding person shall retract the notice of adverse action and/or decide the question of the individual's entitlement to benefits, or arrange to make that determination as quickly as possible. The outcome of the county conference shall be recorded, in writing, in the case record.

(3) The individual need not have a county conference in order to have a state hearing, nor does the holding of a county conference, or the individual's failure to appear for one, diminish the right to a state hearing. A state hearing must still be held unless a resolution is reached at the county conference and the individual withdraws the hearing request in writing. Any such withdrawal shall be signed and dated by both the individual and the local agency representative, shall clearly set forth the resolution upon which the withdrawal is based, and shall be forwarded to the assigned hearings section within two business days. The local agency shall give one copy of the withdrawal to the individual and retain one copy in the case file.

(4) The local agency shall schedule a county conference for assistance groups contesting a denial of expedited food assistance within two business days, unless the assistance group requests that the county conference be scheduled later or states that it does not wish to have a county conference.

(D) Legal representation

Both the individual and the local agency have the right to be represented by legal counsel at the state hearing. The local agency shall provide the individual with information regarding free legal services in the community, as specified in Chapters 5101:6-1 to 5101:6-9 of the Administrative Code and upon request from the appellant, via the JFS 04059 "Explanation of State Hearing Procedures" (rev. 10/2008). The local agency may provide legal services through a social services contract.

(E) Access to documents and regulations

(1) The individual and authorized representative shall be provided reasonable time before the date of the hearing, as well as during the hearing, to examine the contents of the case file, as well as all records and documents to be used by the local agency at the hearing, except for confidential information protected from release.

(2) If the individual or authorized representative requests case record documents that are relevant to the issue under appeal, the local agency shall provide one copy of each such document at no cost. The authorized representative must provide the individual's signed authorization to the local agency before obtaining a copy of case record material.

(3) Current program manuals shall be made available to the individual or authorized representative for review at the local agency.

(4) The local agency's failure to provide or allow access to the information, at least three days prior to scheduled hearing, as required by this paragraph, may be the basis for postponing or continuing the hearing.

(5) Confidential material protected from release, and other documents or records that the individual will not have an opportunity to contest or challenge, shall not be presented at the hearing nor affect the hearing officer's decision.

(6) When the hearing involves work registration or employment and training, the individual shall also be allowed to examine the employment and training component case file, except for confidential information (which may include test results) that the agency determines should be protected from release.

(7) When the hearing involves action or lack of action by a managed care plan, the provisions of paragraphs (E)(1), (E)(2), (E)(4), and (E)(5) of this rule shall apply to the managed care plan, its subcontracting providers, and all relevant records.

(F) Subpoenas

(1) Both the local agency and the individual or authorized representative may request in writing, at least five calendar days prior to the date of the state hearing, that ODJFS issue a subpoena to compel the presence of documents and witnesses that would not otherwise be available and that are essential to the requesting party's case.

(2) The hearing authority shall make the determination as to whether such subpoenas shall be issued and whether subpoenaed individuals shall participate in person or by telephone. If a subpoena request is denied, the reason for denial shall be clearly explained in the state hearing decision.

(3) Subpoenas shall be served by mail. The payment of witness fees for attendance and travel is not required.

(4) When the hearing involves action or lack of action by a managed care plan, the managed care plan shall have the same subpoena rights as the local agency.

(G) Transportation

The local agency may provide transportation to the individual through a social services contract where a valid need for transportation exists.

(H) Translations of hearing decisions

If an individual or authorized representative requests that a hearing decision be translated, the bureau of state hearings shall provide a translation in accordance with the "Ohio Department of Job and Family Services Language Access Policy" (rev. 4/3/2008) at http://jfs.ohio.gov/civilrights/pdf/LEP_Policy_12.pdf.

(I) Interpreters for hearings

If an individual or authorized representative has limited proficiency in English or communicates using sign language, the local agency shall provide an interpreter for the individual or authorized representative, at the request of the individual, authorized representative, or hearing authority. The bureau of state hearings will work with all local agencies to insure interpreter services at a reasonable cost to the local agencies when it comes necessary to utilize such services.

(J) Group hearings

(1) The bureau of state hearings may respond to a series of individual state hearing requests by scheduling a single group hearing. Requests may be consolidated only when individual issues of fact are not disputed and where related issues of state or federal law are the sole issues being raised.

(2) In all group hearings, the rules governing individual hearings must be followed.

Each individual shall be permitted to present his or her own case or have his or her case presented by an authorized representative.

(3) Individuals scheduled for a group hearing shall be notified of the group hearing procedures via the JFS 04059, along with the scheduling notice.

Effective: 02/28/2014
R.C. 119.032 review dates: 11/18/2013 and 02/01/2019
Promulgated Under: 119.03
Statutory Authority: 3125.25 , 5101.35
Rule Amplifies: 3125.25 , 5101.35 , 5160.011
Prior Effective Dates: 4/15/75, 6/28/76, 9/1/76, 10/1/78, 12/1/79, 6/1/80, 6/2/80, 9/18/80, 10/1/81, 2/1/82, 5/1/82, 10/1/82, 1/17/83, 4/1/83, 7/1/83, 11/1/83 (Temp), 12/1/83, 12/22/83, 3/1/84 (Temp), 6/1/84, 5/1/85 (Emer), 7/1/85 (Emer), 7/30/85, 9/25/85, 4/1/86, 4/1/87, 9/1/87, 10/14/88, 4/1/89, 2/1/92, 6/1/93, 6/1/97, 5/15/99, 6/1/03, 7/1/09, 8/1/10

5101:6-5-02 State hearings: postponement of the state hearing.

(A) Postponement is a request prior to the hearing date to schedule the hearing for a later date.

(1) Public assistance, social services and child support services

(a) The hearing may be postponed at the request of the individual or authorized representative when good cause, as defined in rule 5101:6-5-03 of the Administrative Code, exists.

(b) The hearing authority shall have final authority to determine whether good cause exists. Verification of good cause may be required.

(c) The hearing authority shall have final authority to deny repeated requests for postponement.

(d) Postponement shall not extend the time limit for issuing a state hearing decision.

(2) Food assistance

(a) The assistance group is entitled to postponement of its scheduled hearing date, not to exceed thirty calendar days.

(b) If postponement is requested, state hearings shall reschedule the hearing at the earliest available time and date convenient to the assistance group.

(c) The sixty-day time limit for issuing a decision shall be extended by as many days as the hearing is postponed.

(B) Postponement shall not affect continuation of assistance.

(C) When a request for postponement is denied, the individual or authorized representative must attend the scheduled hearing or be subject to dismissal as described in rule 5101:6-5-03 of the Administrative Code.

(D) The postponement rights described in paragraphs (A), (B) and (C) of this rule apply only to the individual, and not to the agency.

(E) The local agency may request one postponement not later than seven days prior to the hearing. No postponement will be granted if it will prevent state hearings from issuing the decision within applicable time limits.

Effective: 02/28/2014
R.C. 119.032 review dates: 11/18/2013 and 02/01/2019
Promulgated Under: 119.03
Statutory Authority: 3125.25 , 5101.35
Rule Amplifies: 3125.25 , 5101.35 , 5160.011
Prior Effective Dates: 9/1/76, 6/2/80, 10/1/81, 2/1/82, 5/1/82, 10/1/82, 1/1/83, 4/1/83, 7/1/83, 7/3/83, 11/1/83 (Temp), 12/1/83, 3/1/84 (Temp), 6/1/84, 5/1/85 (Emer), 7/30/85, 4/1/87, 6/1/93, 10/1/97 (Emer), 12/30/97, 5/15/99, 6/1/03, 9/1/08, 2/16/12

5101:6-5-03 State hearings: denial and dismissal of state hearing requests.

(A) The local agency shall not deny or dismiss any request for a state hearing. All requests shall be sent to the bureau of state hearings, in accordance with rule 5101:6-5-01 of the Administrative Code.

(B) When a state hearing request is denied or dismissed, the individual and authorized representative shall be provided written notice describing the denial or dismissal, with a copy to the local agency.

When a hearing request involves multiple issues, and when the appellant withdraws his or her request with regard to some but not all of the issues under appeal, notice of dismissal of the withdrawn appeals may be included in the JFS 04005 "State Hearing Decision" (rev. 3/2003) rather than provided via separate notice.

When the hearing request involves one of the medical determination issues listed in paragraph (C)(2) of rule 5101:6-6-01 of the Administrative Code, a copy of the notice shall be sent to the appropriate medical determination unit.

When the hearing request involves action or lack of action by a managed care plan, copies of the notice shall be sent to the managed care plan and to the unit within the Ohio department of job and family services (ODJFS) administering the medicaid managed care program.

(C) A state hearing request may only be denied prior to the mailing of the JFS 04002 "State Hearing Scheduling Notice" (rev. 9/2002), and only for the following reasons:

(1) The request is untimely, as defined by rule 5101:6-3-02 of the Administrative Code.

If the request indicates that proper notice was not received, the request shall be accepted and the issue of timeliness shall be determined as a preliminary matter at the hearing.

(2) The request was not made by the individual or authorized representative, or written authorization specifically designating the person making the request to act on the individual's behalf was not submitted with the request.

Such a denial must be consistent with the provisions of rule 5101:6-3-02 of the Administrative Code.

(3) The request concerns an issue that is not appealable under the provisions of rule 5101:6-3-01 of the Administrative Code.

If the issue as stated in the request is unclear, the bureau of state hearings shall request clarification from the individual.

(4) The sole issue of the request is a change in state or federal law, or local agency policy adopted pursuant to options authorized in state law, that requires automatic adjustments of benefits for classes of recipients, unless the reason for the request is the misapplication of the change to the appellant's individual circumstances.

(5) The request concerns the placement of the assistance group for food assistance on an alternate issuance system or the length of time the assistance group remains on this system.

(6) It is clear that the issue has been previously decided through the state hearing process.

(D) After a state hearing request is scheduled, it may no longer be denied, but must be heard, or dismissed as described in paragraphs (E)(1) and (E)(2) of this rule. Dismissal of a state hearing request constitutes a binding decision on the hearing request. In the event that a dismissal notice is issued in error, it may be reversed by the hearing authority allowing for the state hearing process to continue.

(E) A request for a state hearing may be dismissed only for the following reasons:

(1) The appellant or authorized representative withdraws the hearing request, before the state hearing decision is issued.

(2) The request is abandoned. A state hearing request is "abandoned" when the individual or authorized representative fails, without good cause, to attend the state hearing. A "state hearing" is defined as the initial state hearing, a hearing that has been rescheduled, or a hearing that has been continued.

(a) When the hearing has been abandoned, the individual and authorized representative shall be notified that the hearing request will be dismissed if good cause for failing to attend is not shown within ten days of the mailing date of the notice.

(b) The hearing shall be rescheduled if the individual or authorized representative contacts the hearing authority, in writing or by telephone, within the ten-day period and establishes good cause.

(c) The request shall be dismissed as abandoned if the bureau of state hearings does not receive a showing of good cause within the ten-day period. The date of dismissal is the day after the ten-day period ends.

(d) If the individual contacts the hearing authority but fails to establish good cause, the individual shall be given written notice of that determination and of the right to and the method of obtaining an administrative appeal. Copies shall be sent to the local agency.

(e) "Good cause" is defined as death in the immediate family, sudden illness or injury of the individual or a member of the individual's immediate family, or other circumstances that reasonably prevented attendance at the hearing.

(f) The hearing authority shall have final authority to determine if good cause was timely shown. Verification of good cause may be required.

Effective: 02/28/2014
R.C. 119.032 review dates: 11/18/2013 and 02/01/2019
Promulgated Under: 119.03
Statutory Authority: 3125.25 , 5101.35
Rule Amplifies: 3125.25 , 5101.35 , 5160.011
Prior Effective Dates: 9/1/76, 6/2/80, 10/1/81, 2/1/82, 5/1/82, 10/1/82, 1/1/83, 4/1/83, 7/1/83, 7/3/83, 11/1/83 (Temp), 12/1/83, 3/1/84 (Temp), 6/1/84, 5/1/85 (Emer), 7/30/85, 4/1/87, 7/1/88 (Emer), 9/1/88, 4/1/89, 10/1/91, 2/1/92, 6/1/93, 6/1/97, 5/15/99, 6/1/03, 9/1/08, 8/1/10