Chapter 5101:6-6 Hearing Procedure

5101:6-6-01 State hearings:- scheduling and attendance.

(A) Time and place of the hearing

(1) The hearing shall be conducted at a reasonable time, date, and place. The hearing will usually be conducted at the local agency, since it is usually most convenient to the individual. However, there may be circumstances which warrant conducting the hearing at another time, date, or place. In these cases, efforts shall be made to schedule the hearing at a time, date, and place convenient to all parties involved.

(a) The bureau of state hearings may elect to have the hearing officer participate via video conference, with the appellant and the county representatives participating at the local agency.

(b) Documents shall be provided to the hearing officer for inclusion in the record in accordance to the requirements for telephone hearings as set forth in rule 5101:6-6-04 of the Administrative Code.

(c) State hearings conducted via video conference shall be considered face to face hearings.

(2) When a hearing request can be identified as involving a prevention retention and contingency (PRC) program issue, dealing with an emergent need, or a denial of expedited food assistance, the hearing shall be scheduled and conducted more quickly than other requests, if necessary, so that the decision can be issued within the thirty-day period specified in rule 5101:6-7-01 of the Administrative Code.

(3) The hearings section shall expedite food assistance hearing requests from assistance groups, such as migrant farm workers, that plan to move from the county before the hearing decision would normally be issued.

(a) Hearing requests from these assistance groups shall be scheduled and conducted more quickly than other requests, if necessary, to enable them to receive a decision, and a restoration of benefits if appropriate, before they leave the county.

(b) To qualify, the assistance group must submit, in writing if possible, its planned date of move. When this information is provided in an oral request, the local agency shall put the information in writing and forward it to the district hearings section with the hearing request, if possible, or immediately upon receipt.

(4) Hearings involving the determination of the community spouse resource allowance shall be conducted within thirty days of the date of the hearing request. This requirement shall not prevent the granting of otherwise appropriate postponements and continuances.

(5) When the hearing is conducted at the local agency, the local agency shall provide adequate accommodations where the hearing can be conducted in privacy, with the proper decorum, and with a minimum of distractions.

(B) The bureau of state hearings shall send written notice of the time, date, and place of the hearing to the individual and authorized representative, to the local agency, and to the medical determination units identified in paragraph (C)(1) of this rule, who may be participating, via use of a notice describing the date, place, and time of the state hearing.

(1) A copy of the scheduling notice shall be retained and included in the hearing record.

(2) This notice shall be mailed at least ten calendar days prior to the date of the hearing, unless the appellant or authorized representative requests less advance notice in order to expedite scheduling. Expedited hearings may be granted at the discretion of the hearing authority.

(3) When the hearing request involves action or lack of action by a managed care plan, copies of the scheduling notice shall be sent to the managed care plan and to the Ohio department of medicaid, bureau of managed care..

(4) The scheduling notice shall:

(a) Provide the name, address and telephone number of the person to notify if the individual cannot attend the hearing.

(b) Explain that the hearing request will be dismissed if the appellant or authorized representative fails, without good cause, to appear for the hearing.

(c) Explain state hearing procedures and provide other information necessary for the individual's understanding of the proceedings and the effective presentation of his or her case.

(d) Explain that the appellant or representative may examine the case file prior to the hearing.

(C) Attendance

(1) Attendance at the hearing is limited to the following:

(a) The agency representative.

(b) The individual and/or authorized representative.

(c) Legal representation for the individual and for the agency.

(d) Witnesses called by the individual and the agency to present relevant testimony.

(e) Other persons, only if the individual agrees and if their attendance does not interfere with the orderly conduct of the hearing.

(2) When the hearing involves one of the medical determination issues listed in this paragraph, the agency representative shall be an employee of the medical determination unit or agency, or an agent of that office.

(a) Medical determination issues include the following:

(i) Prior authorization for medical services.

(ii) Need for long-term care.

(iii) Determination of disability and incapacity.

(iv) Precertification of hospital admissions and medical procedures.

(v) Preadmission screening and resident review (PASRR) determinations made by the Ohio department of mental health and addiction services and the Ohio department of developmental disabilities.

(vi) Coordinated services program (CSP) issues, including enrollment, continued enrollment, denial of a requested designated provider change, and denial of payment for services by a nondesignated provider.

(vii) Home and community-based services (HCBS) waiver determinations.

(viii) County board of developmental disabilities actions.

(b) The medical determination unit shall participate in the hearing, either in person or by telephone.

(c) If the medical determination unit is to participate in the hearing by telephone, such participation shall be as described in rule 5101:6-6-04 of the Administrative Code.

(3) When the hearing involves action or lack of action by a managed care plan, a representative of the managed care plan shall participate in the hearing as the agency representative.

The managed care plan representative shall participate in the hearing either in person or by telephone.

If the managed care plan representative is to participate in the hearing by telephone, such participation shall be as described in rule 5101:6-6-04 of the Administrative Code.

(4) Any disputes regarding attendance shall be resolved by the hearing officer prior to the hearing.

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 , 5164.758 , 5167.13
Prior Effective Dates: 4/15/75, 6/1/80, 6/2/80, 9/18/80, 10/1/81, 2/1/82, 5/1/82, 10/1/82, 1/1/83, 7/3/83, 11/1/83 (Temp), 12/22/83, 3/1/84 (Temp), 6/1/84, 5/1/85 (Emer), 7/30/85, 4/1/87, 8/20/87, 9/1/87, 9/30/22 (Emer), 12/22/88, 4/1/89, 12/29/89 (Emer), 3/22/90, 6/1/93, 6/1/97, 5/15/99, 6/1/03, 9/1/08, 7/1/11 (Emer), 1/1/12

5101:6-6-02 State hearings: rights and responsibilities of the participants.

(A) The agency representative

The agency representative presents and is the advocate for the agency's case at the hearing. This person shall explain the reasons for the agency's action, cite the regulations upon which the action was based, provide relevant case information and documents, and answer relevant questions from the individual and the hearing officer. The agency representative has the same rights as the individual to confront and cross-examine during the hearing.

When the hearing involves action or lack of action by a managed care plan, the managed care plan representative shall have the same rights and responsibilities as those of the agency representative.

(1) If the issue being addressed at the hearing is an action taken by the agency, based on the agency's prevention, retention and contingency (PRC) plan, and the agency wants to have the application of that plan considered in the decision making process, a copy of the plan must be provided to the hearing officer for inclusion in the record.

(B) The individual making the hearing request

(1) The individual and representative shall have the opportunity to present their case in their own way. The hearing shall be conducted informally, and formal rules of evidence shall not apply.

(2) The individual and authorized representative shall have adequate opportunity to:

(a) Examine, at a reasonable time before the hearing as well as during the hearing, the contents of the case file, except for confidential information protected from release, as well as all records and documents to be used by the local agency at the hearing.

(b) Bring witnesses.

(c) Submit evidence to establish all pertinent facts and circumstances.

(d) Advance arguments without undue interference.

(e) Question or refute any testimony or evidence, including the opportunity to confront and cross-examine adverse witnesses.

(C) The hearing officer

(1) State hearings shall be conducted by an impartial Ohio department of job and family services (ODJFS) hearing officer who has no personal stake or involvement in the case and was not directly involved in the initial determination being appealed. The hearing officer shall be under the direction and supervision of the bureau of state hearings.

(2) The hearing officer shall not consult with either party concerning the substance of the case prior to the hearing, except for review of the hearing request and appeal summary.

(3) Hearings are normally held at the local agency office. The hearing officer shall assure that the accommodations provided by the local agency for the hearing are adequate and that the hearing can be conducted in privacy, with the proper decorum, and with a minimum of distractions.

(4) The hearing officer shall regulate attendance at the hearing in accordance with rule 5101:6-6-01 of the Administrative Code. If space is limited, witnesses may be called into the hearing room one at a time.

(5) The hearing officer shall begin the hearing by starting the recording equipment and providing the following introductory information:

(a) The name and role of the hearing officer, the case name, and the appeal number.

(b) How the hearing will be conducted, including the order of presentation and questioning.

(c) The time frame within which a decision must be issued.

(d) Who will issue the decision.

(e) How the parties will be notified of the decision.

(f) Where the complete hearing record will be kept after the decision is issued.

(g) The available appeal rights.

(6) After the opening remarks, the hearing officer shall state the issue to be heard, as it appears on the hearing request. The issue shall always be whether the agency's action or inaction was in accordance with applicable regulations. The hearing officer shall entertain requests from either party to amend the issue as stated. Amendment is appropriate so long as it does not substantially alter the nature of the issue or the ability of the parties to address the issue at the hearing. Any amendment of the issue as stated on the hearing request shall be formally recorded.

(7) The hearing officer shall ask both parties for any additional issues, and shall rule on their inclusion in the hearing. An additional issue may be heard only if both parties agree, and if the hearing officer determines that both parties are prepared to address the additional issue and that there is adequate time to do so.

(8) The hearing officer shall record the name and role of each person in attendance and shall administer an oath or affirmation to all who intend to offer testimony.

(9) The hearing officer shall regulate the order of presentation by the parties.

Normally, the agency presentation will be made first, subject to questioning by the individual and the hearing officer, followed by the individual's presentation, subject to questioning by the agency and the hearing officer. Both parties will then be allowed a brief closing statement.

(10) In regulating the conduct of the hearing, the hearing officer is responsible for developing the fullest possible record upon which to base all necessary findings of fact. Each party shall be treated fairly and impartially and given adequate opportunity to address the issues. The hearing officer has an affirmative obligation to assist unrepresented individuals in understanding the nature of the issue and the regulations that relate to it, and in presenting testimony and evidence necessary to address all relevant factual questions. The hearing officer shall take an active part in questioning the parties and the evidence presented, insofar as that is necessary to develop the fullest possible record.

(11) After all relevant testimony and evidence has been presented, the hearing officer shall determine whether a sufficient record has been developed upon which to make the decision. If not, the hearing officer may either order that the hearing be continued to a later date or leave the record open for the submission of additional evidence.

(a) Where relevant and useful, the hearing officer may order an independent medical assessment or professional evaluation.

(b) If the hearing is to be continued to a later date, the hearing officer shall schedule the continuance at the earliest possible date acceptable to all parties and shall formally record the new date and time, as well as the specific purpose of the continuance. Notification of the parties at the hearing shall be followed by written notification via state hearing scheduling notice.

(c) If the record is to be left open to allow the submission of additional documentary evidence, the hearing officer shall formally record the nature and purpose of the additional evidence and shall establish the earliest possible realistic deadline for its submission to the hearing officer.

(d) Additional evidence submitted prior to the deadline shall be forwarded to the other party with notice of the deadline for response. Evidence submitted after the deadline may be returned to the submitting party with notice that it will not be used in reaching the decision.

(e) The hearing officer shall also have the authority to reconvene the hearing if the nature of the additional evidence or response requires. When the record has been left open for submission of additional evidence by the agency, the individual shall always be afforded the right to rebut such evidence in person at a reconvened hearing if he or she chooses.

(f) When the record has been left open, the hearing decision shall so indicate, and shall record the resulting submissions or failure to submit, as well as the substance of any rebuttal.

(12) If assistance has been continued due to a timely appeal, the hearing officer shall determine, prior to adjourning the hearing, whether the sole issue is one of state or federal law and not one of fact or judgment.

(13) The hearing officer shall close the hearing by informing the parties when they can expect the written decision, adjourning the hearing, and turning off the recording equipment.

(14) Following the hearing, the hearing officer shall not discuss the substance of the case with either party, unless at a supplemental hearing at which both parties are present.

(15) Finally, the hearing officer shall prepare the JFS 04005 "State Hearing Decision" (rev. 3/2003), to include the issue, findings of fact, conclusions of policy, and recommendations, and submit it to the assigned hearing authority for issuance.

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, 6/1/80, 6/2/80, 9/18/80, 10/1/81, 5/1/82, 10/1/82, 11/1/83 (Temp), 12/22/83, 3/1/84 (Temp), 6/1/84, 5/1/85 (Emer), 7/30/85, 4/1/87, 2/1/92, 6/1/93, 6/1/97, 5/15/99, 6/1/03, 9/29/06 (Emer), 12/18/06, 9/1/08

5101:6-6-03 State hearings: recording the hearing.

(A) All state hearings shall be recorded by the hearing officer. The recording shall be started at the beginning of the hearing and shall continue until the hearing is concluded. There shall be no testimony or other proceedings off the record. The recording shall not be altered or edited in any manner or for any reason.

(B) The recording of the hearing shall not be a part of the official hearing record. The recording shall be maintained for thirty calendar days after the issuance of the hearing decision unless an administrative appeal has been requested. If an administrative appeal is requested, the recording shall be maintained for seven months after all administrative appeal proceedings have been completed. The recording may be erased after expiration of the above period.

(C) The individual, authorized representative, or agency may request a copy of the recording. The bureau of state hearings shall respond to such requests within two workdays whenever possible, and shall mail the copy free of any charge. Nonreceipt of a copy of a recording within the administrative appeal period shall not result in an extension of the administrative appeal period.

(D) The individual, authorized representative, and/or the agency may record the hearing, at their own expense, so long as it does not seriously interfere with the orderly conduct of the hearing.

(E) If, during the administrative appeal process, it is found that the hearing officer's recording is lost or unusable (for example, because it has been damaged or because material portions of the recording are inaudible), the administrative appeal hearing examiner shall remand the case to the state hearing officer for a new hearing if the individual takes material issue with the recitation of the testimony set forth in the hearing decision.

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: 10/1/85, 4/1/87, 10/14/88 (Emer), 12/22/88, 6/1/93, 10/1/97 (Emer), 12/1/97, 5/15/99, 6/1/03, 9/1/08

5101:6-6-04 State hearings: telephone hearings.

(A) The bureau of state hearings may schedule some or all hearings as telephone hearings, following the procedures outlined in this paragraph.

(1) Telephone hearings shall normally be conducted with all participants except the hearing officer present at the local agency office. The hearing officer shall conduct the hearing, as described in rule 5101:6-6-02 of the Administrative Code, by telephone from the hearing officer's office or other site suitably equipped with the proper telephone equipment.

When a telephone hearing concerns one of the medical determinations listed in paragraph (C)(2) of rule 5101:6-6-01 of the Administrative Code, the agency representative shall participate in the hearing as described in that paragraph.

(2) Scheduling telephone hearings shall be done in accordance with the following:

(a) If the hearing is to be scheduled as a telephone hearing, the JFS 04002 "State Hearings Scheduling Notice" (rev. 09/02) shall inform the individual of that fact and that he or she may choose to have a face-to-face hearing instead.

(b) The JFS 04002 shall include a telephone number which the individual can call free of charge to request a face-to-face hearing and shall explain that a request for a face-to-face hearing must be made no later than three calendar days prior to the date of the hearing.

(c) Hearings initially scheduled as telephone hearings that are rescheduled as face-to-face hearings at the individual's request shall be rescheduled in accordance with rule 5101:6-6-01 of the Administrative Code.

(3) Documents shall be made available to the hearing officer for inclusion in the official hearing record as follows:

(a) The agency shall be responsible for submitting an appeal summary with all relevant documents to the appropriate hearings office as required by rule 5101:6-5-01 of the Administrative Code. In the case of a hearing in which the sole issue is that of a disability determination or disability onset date, the disability determination area (DDA) representative will not routinely participate in the hearing. A copy of the appeal summary will be sent to the appellant prior to the hearing date, explaining that the appeal summary will stand in place of DDA participation, and if the appellant chooses to have a DDA representative participate in the hearing, a request, either in writing or orally, can be made to the hearing authority and arrangement for participation will be made.

(b) The individual shall be responsible for providing any documents he or she wants considered to the appropriate hearings office prior to the hearing. The local agency shall assist in copying and sending such documents if the individual requests.

(c) If, during the hearing, it is determined that not all necessary documents have been received by the hearing officer, the agency shall transmit the additional documents to the hearing officer, so that they may be examined by the hearing officer before the conclusion of the hearing.

(d) If it is not possible to transmit the additional documents to the hearing officer before the conclusion of the hearing, the record shall be held open until they are received. The individual shall be given the option of having the hearing reconvened when the additional documents are received.

Once the additional documents are received and reviewed, the hearing officer may also decide to reconvene the hearing to resolve questions which arise upon review.

(e) Documents that were not available for the individual to review during the hearing may not be submitted to the hearing officer after the hearing, unless the individual is provided the opportunity for rebuttal as required by rule 5101:6-6-02 of the Administrative Code.

(4) For all hearings scheduled as telephone hearings, the local agency shall be responsible for providing a suitable hearing room equipped with a speaker telephone capable of clear, recordable transmission of the testimony of the participants.

(5) The hearing officer is responsible for ensuring that the hearing is recorded clearly so that a complete transcription may be made if required.

(6) All other hearing procedures contained in Chapters 5101:6-1 to 5101:6-9 of the Administrative Code apply equally to telephone hearings.

(B) The following procedures apply when a medical determination unit or other party is to participate in the hearing by telephone.

(1) The hearing office shall be responsible for the following:

(a) Notifying the local agency that the hearing will involve telephone participation, so that a suitable hearing room can be provided.

(b) Notifying the medical determination unit or other party of the date and time of the hearing and obtaining the telephone number where the representative can be reached on the day of the hearing.

(2) The local agency shall be responsible for the following:

(a) Providing a suitable hearing room.

(b) Providing a staff member to attend the hearing and to bring the individual's case file, including, if applicable, the appeal summary and supporting documentation provided by the medical determination unit.

(3) When the individual, local agency staff member, and hearing officer are present and ready to begin the hearing, the hearing officer shall call the medical determination unit or other party, assure that the speaker phone and tape recording equipment are working properly, and begin the hearing.

(4) The hearing shall be conducted in accordance with rule 5101:6-6-02 of the Administrative Code.

(5) The hearing officer shall be responsible for assuring that new, previously unavailable evidence is described in sufficient detail for the individual participating by telephone to offer rebuttal.

Effective: 02/28/2014
R.C. 119.032 review dates: 11/18/2013 and 02/01/2019
Promulgated Under: 119.03
Statutory Authority: 5101.35
Rule Amplifies: 5101.35 , 5160.011
Prior Effective Dates: 6/2/80, 9/19/80, 5/1/82, 5/1/85 (Emer), 7/30/85, 4/1/87, 8/20/87, 4/1/89, 4/3/89 (Emer), 6/18/89, 10/21/91 (Emer), 12/26/91, 6/1/93, 5/15/99, 6/1/03, 9/1/09