Chapter 5160-70 Hearing or Review for Providers

5160-70-01 Chapter 119 hearing or administrative reconsideration procedures for medicaid providers.

(A) The following definitions apply to Chapter 5160-70 of the Administrative Code:

(1) "Appellant" means the party who requested an adjudication hearing pursuant to Chapter 119. of the Revised Code and is appealing the adjudication order to the Franklin county court of common pleas.

(2) "Certified mail" means the United States postal service mail service in which the delivery person obtains the signature of the recipient of the mail on a form as proof of delivery to the specified addressee. Pursuant to section 1.02 of the Revised Code, certified mail includes registered mail.

(3) "Department" means the Ohio department of medicaid ("ODM").

(4) "Depository agent" means the ODM office of legal services at its official mailing address for the purpose of receiving correspondence or filings for any hearing held under authority of Chapter 5160-70 of the Administrative Code.

(5) "Director" means the director of ODM.

(6) "Adjudication order" means the order made by the director after notice and an opportunity for a hearing is afforded pursuant to Chapter 119. of the Revised Code.

(7) "Final fiscal audit" means a medicaid final rate settlement or a medicaid hospital final settlement, including a final settlement in which Title V monies are offset against medicaid monies proposed for adjudication by ODM.

(8) "Hearing" means a hearing held by ODM in compliance with sections 119.06 to 119.13 of the Revised Code.

(9) "Last known address" means the most recent mailing address reported to ODM in compliance with reporting requirements.

(10) "Notice of intended action" means the written notice to the party of the department's intended action and notice of the right to a hearing pursuant to Chapter 119. of the Revised Code.

(11) "ODM" means the Ohio department of medicaid.

(12) "Participants in the hearing" means the party and the party's counsel in the hearing and ODM and ODM's counsel in the hearing.

(13) "Party" means a person whose interests are the subject of a notice of intended action by ODM.

(14) "Person" means an individual, corporation, whether nonprofit or for profit, a partnership, a limited liability company, and unincorporated society or association.

(15) "Medicaid provider" or "provider" means a person or governmental entity with a valid provider agreement to provide medical services or supplies to medicaid recipients. To the extent appropriate in the context, "medicaid provider" or "provider" includes a person or governmental entity applying for a provider agreement, a former medicaid provider, or both.

(16) "Notice by ordinary mail" means the service obtained by the agency after the party fails to claim the certified mail notice and the agency sends the notice by ordinary mail using a certificate of mailing to the party's last known address and the ordinary mail notice is not returned showing failure of delivery.

(17) "Provider agreement" means a contract between ODM and a person or governmental entity that allows the person or governmental entity to provide medical services and supplies for the Ohio medicaid program.

(18) "Take any action based on a final fiscal audit" means ODM issuing a notice of intended action seeking recovery of medicaid overpayments that were identified in the final fiscal audit.

(B) 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 and Chapter 5160-70 of the Administrative Code. The time within which an act is required by law to be completed is computed by excluding the first day and including the last day. When the last day falls on a Saturday, Sunday, or legal holiday, the act may be completed on the next succeeding day that is not a Saturday, Sunday, or legal holiday. When the last day to perform an act that is required by law to be performed in a public office occurs when that public office is closed to the public for the entire day, the act may be performed on the next succeeding day that is not a Saturday, Sunday, or legal holiday and on which the public office is open.

Effective: 1/1/2015
Five Year Review (FYR) Dates: 01/01/2020
Promulgated Under: 119.03
Statutory Authority: 5160.02, 5164.02
Rule Amplifies: 119.06, 119.07, 119.08, 119.09, 119.094, 119.10, 119.12, 119.13

5160-70-02 Procedures for providers seeking review of department actions or proposed department actions.

(A) Chapter 5160-70 of the Administrative Code prescribes the procedures to be followed when medicaid providers seek review of actions or proposed actions of the department, except for any action taken or decision made by the department with respect to entering into or refusing to enter into a contract with a managed care organization pursuant to section 5167.10 of the Revised Code and any action taken under section 5165.60 to 5165.89 of the Revised Code. The rules in Chapter 5160-70 of the Administrative Code prevail over the provisions set forth in Chapter 5101:6-50 of the Administrative Code.

(B) Except as provided in paragraph (C) of this rule and section 5164.58 of the Revised Code, the department shall do the following by issuing an order pursuant to an adjudication conducted in accordance with Chapter 119. of the Revised Code:

(1) Pursuant to section 5164.38 of the Revised Code, refuse to enter into a provider agreement with a provider;

(2) Pursuant to section 5164.38 of the Revised Code, refuse to revalidate a medicaid provider's provider agreement;

(3) Pursuant to section 5164.38 of the Revised Code, suspend or terminate an existing medicaid provider's provider agreement;

(4) Pursuant to section 5164.38 of the Revised Code, take any action based upon a final fiscal audit;

(5) Pursuant to section 5165.46 of the Revised Code:

(a) Take any audit disallowance that the department makes as the result of a nursing facility cost report audit under section 5165.109 of the Revised Code;

(b) Make any adverse finding that results from an exception review of resident assessment data conducted for a nursing facility under section 5165.193 of the Revised Code after the effective date of the nursing facility's medicaid payment rate for direct care costs that is based on the resident assessment data;

(c) Recover any medicaid payment deemed an overpayment based upon the final cost report filed by an exiting nursing facility operator under section 5165.523 of the Revised Code;

(d) Impose any penalty under section 5165.42 of the Revised Code or section 5165.523 of the Revised Code.

(6) Pursuant to section 5165.525 of the Revised Code, issue a final debt summary report;

(7) Pursuant to division (A) of section 5165.77 of the Revised Code, terminate a nursing facility's participation in the medical assistance program, appoint a temporary manager of a nursing facility, or deny payment to a nursing facility for all medicaid eligible residents admitted after the effective date of the order.

(C) The Chapter 119. administrative procedures, including hearing rights, are not applicable to department actions that include, but are not limited to, the following:

(1) Pursuant to section 5164.38 of the Revised Code, the termination of the provider agreement because the terms of the provider agreement require the medicaid provider to hold a license, permit, or certificate or maintain a certification issued by an official, board, commission, department, division, bureau, or other agency of state or federal government other than the department of medicaid, and the license, permit, certificate, or certification has been denied, revoked, not renewed, suspended, or otherwise limited;

(2) Pursuant to section 5164.38 of the Revised Code, the termination of the provider agreement because the terms of the provider agreement require the medicaid provider to hold a license, permit, or certificate or maintain certification issued by an official, board, commission, department, division, bureau, or other agency of state or federal government other than the department of medicaid, and the provider has not obtained the license, permit, certificate, or certification;

(3) Pursuant to section 5164.38 of the Revised Code, the denial of the medicaid provider's application for a provider agreement or the provider's provider agreement is terminated or not revalidated, because of or pursuant to any of the following:

(a) The termination, refusal to renew, or denial of a license, permit, certificate, or certification by an official, board, commission, department, division, bureau, or other agency of this state other than the department of medicaid, notwithstanding the fact that the provider may hold a license, permit, certificate, or certification from an official, board, commission, department, division, bureau, or other agency of another state;

(b) Division (E)(3)(b) of section 5164.38 of the Revised Code and division (D) of section 5164.35 of the Revised Code, when a judgment has been entered in either a criminal or civil action against a medicaid provider or its owner, officer, authorized agent, associate, manager, or employee in an action brought pursuant to section 109.85 of the Revised Code, except if the provider or owner can demonstrate to the department that the provider or owner did not directly or indirectly sanction the action of its authorized agent, associate, manager, or employee which resulted in the entry of judgment;

(c) Division (E)(3)(b) of section 5164.38 of the Revised Code and division (E) of section 5164.35 of the Revised Code, when the attorney general on behalf of the state has commenced proceedings in any court of competent jurisdiction and settled or compromised any such case brought under section 5164.35 of the Revised Code;

(d) The provider's termination, suspension, or exclusion from the medicare program or from another state's medicaid program and, in either case, the termination, suspension, or exclusion is binding on the provider's participation in the Ohio medicaid program;

(e) The provider has pleaded guilty to or been convicted of a criminal activity materially related to the medicare or medicaid programs;

(f) The conviction of the provider or its owner, officer, authorized agent, associate, manager, or employee of one of the offenses that caused the provider's provider agreement to be suspended pursuant to section 5164.36 of the Revised Code; and

(g) The failure of the provider to provide the department the national provider identifier assigned to the provider by the national provider system pursuant to 45 C.F.R 162.408 (October 1, 2014). In this case, the department may take its action by sending a notice explaining the action to the provider. The notice shall be sent to the provider's last known address on record with the department. The notice may be sent by ordinary mail.

(4) Pursuant to section 5164.38 of the Revised Code, the denial of the provider's application for a provider agreement, or the provider's provider agreement is terminated or suspended, as a result of action by the United States department of health and human services and that action is binding on the provider's medicaid participation;

(5) Pursuant to section 5164.38 of the Revised Code, referencing sections 5164.36 and 5164.37 of the Revised Code, the suspension of the provider's provider agreement and payments pending indictment of the provider;

(6) Pursuant to section 5164.38 of the Revised Code, the denial of the application for a provider agreement because the application was not complete. In this case, the department may take its action by sending a notice explaining the action to the applicant. The notice shall be sent to the applicant's last known address on record with the department. The notice may be sent by ordinary mail;

(7) Pursuant to section 5164.38 of the Revised Code, the conversion of the provider's provider agreement under section 5164.32 of the Revised Code from a provider agreement that is not time-limited to a provider agreement that is time-limited. In this case, the department may take its action by sending a notice explaining the action to the provider. The notice shall be sent to the provider's last known address on record with the department. The notice may be sent by ordinary mail;

(8) Unless the provider is a nursing facility or ICF/IID, the non-revalidation of the provider's provider agreement pursuant to division (B)(1) of section 5164.32 of the Revised Code;

(9) The suspension, termination, or non-revalidation of the provider's provider agreement because of either of the following:

(a) Any reason authorized or required by one or more of the following: 42 C.F.R. 455.106, 455.23, 455.416, 455.434, or 455.450 (October 1, 2014);

(b) The provider has not billed or otherwise submitted a medicaid claim for two years or longer. In this case, the department may take its action by sending a notice explaining the action to the provider. The notice shall be sent to the provider's address on record with the department. The notice may be sent by ordinary mail.

(10) Acts of the director, agency employees or contractors of ODM that are ministerial in nature;

(11) Actions of ODM that are subject to public hearings under an administrative review procedure other than the review provided by Chapter 119. of the Revised Code;

(12) Rate calculations and interim settlements;

(13) Claims payment denial determinations and claims adjustments for reasons including, but not limited to, duplicate payments and payment for services not rendered;

(14) Notices of operational deficiency, and reviews and audits that are not subject to the Chapter 119. administrative procedure;

(15) Proceedings, authorized by section 5101.31 of the Revised Code and rules in Chapters 5101:6-1 to 5101:6-9 of the Administrative Code, provided to applicants for, or recipients of, benefits administered by the department, its designees, or contractors;

(16) Personnel action appeals of employees of ODM or of a county department of job and family services;

(17) Disputes involving the issuance, denial, or termination of a contract, a grant, or an interagency agreement issued by ODM or a protest filed with regard to a request for proposals or a request for application issued by ODM;

(18) Administrative actions taken by ODM that involve program administration and funding affecting county departments of job and family services.

(D) Except as otherwise set forth in the Ohio Administrative Code, actions taken that meet the exceptions of paragraph (C) of this rule and other administrative actions regarding medicaid providers that are not subject to hearings under Chapter 119. of the Revised Code and those individuals or providers who do not have medicaid provider agreements and are proposed for exclusion from participation may be reconsidered by the director, assistant director, or the deputy director over the area where the contestation arose. The director, assistant director, or the deputy director may designate who conducts the reconsideration, provided that the designee was not involved in the original decision or contestation. If the department takes an action that is subject to reconsideration, the department may set deadlines by which the person affected by the action shall submit his or her written request for reconsideration and the documentation supporting the request. The deadline shall be no fewer than thirty days from the date appearing on the letter sent to the person. When the department sets a deadline for requesting reconsideration, reconsideration requests and supporting documentation received after the deadline may be considered at the department's discretion. ODM shall not reconsider its reconsideration decisions.

(1) See Chapter 5160-2 of the Administrative Code for additional provisions specific to hospital services.

(2) See Chapter 5160-3 of the Administrative Code for additional provisions specific to nursing facilities.

(3) See Chapter 5160-26 of the Administrative Code for additional provisions specific to managed care plans (MCPs).

(E) When the department takes an action under paragraph (B)(2) or (B)(3) of this rule and the provider requests an adjudication hearing pursuant to Chapter 119. of the Revised Code, the department may withhold payments to the provider if each of the following conditions is met:

(1) The department complies with the provisions of section 119.07 of the Revised Code;

(2) The department does not request a hearing continuance; and

(3) The department issues an adjudication order within thirty days after the hearing is completed.

(F) When the department takes an action under paragraph (B)(4) of this rule and the provider requests an adjudication hearing pursuant to Chapter 119. of the Revised Code, the department may withhold payment to the provider if each of the following conditions is met:

(1) The department complies with the provisions of section 119.07 of the Revised Code;

(2) The department does not request a hearing continuance;

(3) The department issues an adjudication order within thirty days after the hearing is completed; and

(4) The department withholds only an amount that does not exceed the amounts determined in the final fiscal audit.

(G) The provisions of paragraphs (E) and (F) of this rule do not apply to long-term care facilities (LTCFs). Nursing facility and ICF/IID providers whose provider agreements are terminated pursuant to paragraph (B)(5)(b) of this rule may continue to receive medicaid payments for up to thirty days after the effective date of the termination if the provider makes reasonable efforts to transfer medicaid recipients to another facility or to alternate care and if federal financial participation is provided for the payments. See Chapter 5160-3 of the Administrative Code for additional provisions specific to LTCFs.

Effective: 1/1/2015
Five Year Review (FYR) Dates: 01/01/2020
Promulgated Under: 119.03
Statutory Authority: 5160.02, 5164.02
Rule Amplifies: 119.06, 119.07, 119.08, 119.09, 119.094, 119.10, 119.12, 119.13

5160-70-03 Chapter 119 hearings: department notice, making a hearing request, and failure to make a hearing request.

(A) Notice of intended action

(1) Whenever ODM proposes to take an action that the Ohio general assembly has expressly made subject to the administrative adjudication procedure outlined in Chapter 119. of the Revised Code, ODM shall give notice of the intended action to the party informing the party of the party's right to a hearing. Notice shall be given by certified mail, return receipt requested, and shall, at a minimum, include all of the following:

(a) The specific action or actions ODM intends to take;

(b) The charges or other reasons for the proposed action or actions;

(c) The statutes or rules directly involved;

(d) A statement informing the party that the party is entitled to a hearing if the party requests it within thirty calendar days of the time of mailing the notice;

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

(f) A statement informing the party that the party or the party's attorney may present the party's position, arguments or contentions entirely in writing, and that at the hearing the party or the party's attorney may present evidence and examine witnesses appearing for and against the party; and

(g) A statement informing the party that rules governing hearings in accordance with Chapter 119. of the Revised Code are found in Chapter 5160-70 of the Administrative Code.

(2) ODM shall also mail a copy of the notice to the party's attorney or other representative of record. To qualify as an attorney or representative of record, the party or the attorney or representative shall notify ODM, in writing, that the attorney or representative is to be designated the attorney or representative of record. The notification shall include the address where ODM should mail the notice to the attorney or representative of record. The mailing of notice to the 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 party. In those instances where a 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 that all the requirements of paragraph (A) of this rule are met.

(3) When any notice sent by certified mail pursuant to this rule is returned because the party fails to claim the notice, ODM shall send the notice by ordinary mail to the party at the party's last known address and shall obtain a certificate of mailing. Service by ordinary mail is complete when the certificate of mailing is obtained unless the notice is returned showing failure of delivery.

(4) If any notice sent by certified or ordinary mail is returned for failure of delivery, ODM either shall make personal delivery of the notice by an employee or agent of ODM or shall cause a summary of the substantive provisions of 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 address of the party is located. When notice is given by publication, a proof-of-publication affidavit, with the first publication of the notice set forth in the affidavit, shall be mailed by ordinary mail to the party at the party's last known address and the notice shall be deemed received as of the date of the last publication. An employee or agent of ODM may make personal delivery of the notice upon a party at any time.

(5) Refusal of delivery by personal service or by mail is not failure of delivery, and service is deemed to be complete at the time of personal refusal or at the time of receipt by ODM of the refused mail as demonstrated by the ODM time and date stamp. Failure of delivery occurs only when a mailed notice is returned by the postal authority marked undeliverable, address or addressee unknown, or forwarding address unknown or expired.

(B) Making a 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 depository agent within thirty calendar days of the following, as applicable:

(a) The time of mailing the notice if notice is given pursuant to paragraph (A)(1) of this rule;

(b) The date that service is complete if notice is given pursuant to paragraph (A)(3) or (A)(5) of this rule;

(c) The date of the last publication if notice is given by publication pursuant to paragraph (A)(4) of this rule; or

(d) The date of personal service.

(2) If a request for a hearing is mailed to the depository agent, the request is deemed to have been made as follows:

(a) If the request is mailed by certified mail, 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 ordinary U.S. mail, as of the date of the postmark appearing upon the envelope containing the request;

(c) If the request is mailed by ordinary U.S. mail and the postmark is illegible or fails to appear on the envelope, as of the date of its receipt by the depository agent as evidenced by the agent's time stamp.

(3) If a request for a hearing is made by facsimile transmission or by electronic mail to the depository agent, 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 the date of receipt shown in the source code of the electronic mail received by the depository agent.

(4) If a request for a hearing is mailed, personally delivered, made by facsimile transmission, or made by electronic mail to a person or address other than the depository agent, the request is deemed to have been made as of the date of its receipt by the depository agent as evidenced by the depository agent's time stamp.

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

(6) All requests for hearings must include a copy of the notice of intended action that is being contested and clearly identify the party who is making the request by providing the party's name, address, and phone number.

(C) Failure to request a hearing

When a party fails to request a hearing or the request is not submitted timely, ODM shall issue an adjudication order adopting and implementing the notice of intended action.

Effective: 1/1/2015
Five Year Review (FYR) Dates: 01/01/2020
Promulgated Under: 119.03
Statutory Authority: 5160.02, 5164.02
Rule Amplifies: 119.06, 119.07, 119.08, 119.09, 119.094, 119.10, 119.12, 119.13

5160-70-04 Chapter 119 hearings: initial scheduling, joinder of cases, attorney representation, authority of hearing examiners, prehearing conference, filing with depository agent, and withdrawal of notice of intended action.

(A) Initial scheduling of the hearing

(1) When a party timely requests a hearing, ODM shall set the date, time, and place for the hearing and notify the party of the scheduling. ODM shall initially schedule the hearing not earlier than seven calendar days but not later than fifteen calendar days after the hearing was requested. The first notification concerning a scheduled hearing shall be sent by certified mail, return receipt requested. All subsequent letters and notices shall be sent by ordinary United States mail.

(2) Nothing in this rule shall be construed as preventing ODM from postponing and rescheduling any hearing upon its own motion or upon the motion of a party who can show good cause for such a request.

(3) Nothing in this rule shall be construed as preventing ODM and the party 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 a party, ODM 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 efficiency and economic fairness to the participants in the hearing.

(C) Attorney representation in hearings conducted under this chapter

(1) The attorney general, or assistants or special counsel designated by the attorney general, shall represent ODM.

(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 this state. Individuals authorized to practice law in any other jurisdiction may be permitted to represent a party before ODM upon compliance with the "Ohio Supreme Court Rules for the Government of the Bar of Ohio." When a party is represented by more than one attorney, one attorney must be designated by the party as "trial counsel," and that attorney is deemed the party's attorney of record and is primarily responsible for the party's case at the hearing. No attorney representing a party is permitted to withdraw from any hearing proceeding before ODM without prior notice being served upon ODM and prior approval by the hearing examiner.

(D) Authority of hearing examiners appointed by ODM

The director may assign a hearing examiner to conduct any hearing held subject to Chapter 5160-70 of the Administrative Code. Any person assigned to be a hearing examiner must be admitted to the practice of law in the state of Ohio and have such other qualifications as the director deems necessary. The hearing examiner may be an employee of ODM or under contract with ODM. The hearing examiner has the same powers as granted to ODM in conducting the hearing; however, nothing in this rule or in any other ODM rule is to be construed as granting a hearing examiner the authority to dismiss any 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 determine the order in which the participants in the hearing present testimony and are examined in a manner consistent with essential fairness and justice;

(3) The authority to rule on the admissibility of evidence, objections, procedural motions, and other procedural matters provided, however, that the hearing examiner shall not consider or admit into evidence documentation or information that the provider failed, upon request, to furnish to ODM or its contractor during the final fiscal audit process unless ODM agrees to the admissibility of such post final fiscal audit production of documentation or information;

(4) The authority to hold pre-hearing conferences for the purpose of resolving issues that can be resolved by the participants in the hearing, including facilitation of a settlement, identifying the witnesses to be presented and the subjects of their testimony, discussing possible admissions or stipulations regarding the authenticity of records, identifying and marking exhibits, ruling on any procedural motions of the participants in the hearing, resolving outstanding discovery claims, 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;

(5) 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;

(6) Nothing in this rule or in any other ODM rule is to be construed as granting a hearing examiner the authority to dismiss any hearing. Nothing in this rule or in any other ODM rule limits the director's authority to withdraw a notice of intended action or limits the authority of the director to define the scope of any hearing;

(7) The authority to 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;

(8) The authority to require that a copy of any unreported court decision cited in any brief or memorandum be attached to the brief or memorandum containing the citation.

(E) Pre-hearing conferences

Reasonable notice of all pre-hearing conferences shall be provided to participants in the hearing in advance of each conference. The pre-hearing conference may be conducted by phone if agreed to by the parties and the hearing examiner. Unless otherwise ordered for good cause shown, failure to attend a pre-hearing conference precludes objections to rulings made at such conference.

(1) The first pre-hearing conference is set by ODM. The participants in the hearing shall each file a pre-hearing questionnaire if directed to do so by ODM in the letter scheduling the conference. The hearing examiner may also require the submission of a pre-hearing questionnaire before the scheduled date of any pre-hearing conference or before any scheduled hearing.

(2) Following the conclusion of any pre-hearing conference, the hearing examiner conducting the conference shall issue an appropriate pre-hearing report and order reciting or summarizing any agreements reached or rulings made. Unless otherwise ordered for good cause shown, any order issued is binding upon all participants in the hearing, and such orders control the subsequent course of the proceeding. Hearing examiner orders shall be in writing, furnished to the participants in the hearing, and be part of the record of the case. However, the hearing examiner may modify such orders if, at or before the hearing, modification assists to preserve the essential fairness and progress of the hearing.

(3) Each party and ODM must file a final pre-hearing questionnaire at least ten business days before the hearing or at an earlier date established by the hearing examiner. The questionnaire shall include, at a minimum, a statement of each specific question of law or fact to be decided at the hearing, a list of expert and non-expert witnesses, a list of all exhibits expected to be introduced at the hearing, stipulations, and the estimated number of days required for hearing. Only the relevant issues of law or fact set forth on the final questionnaires shall be considered or rebutted at the hearing. The party waives its right to contest any other issues of law and fact. The questionnaire shall inform the hearing examiner if discovery is complete and, if discovery is incomplete, provide a statement of an agreed upon discovery cut-off date. The questionnaire shall inform the hearing examiner whether or not any motions are yet to be filed. The questionnaire must be signed by trial counsel. After the filing of the final pre-hearing questionnaire, no further additions to the proposed list of witnesses and exhibits shall be permitted without good cause shown and the approval of the hearing examiner.

(4) ODM, upon its own motion or that of the hearing examiner, may waive any pre-hearing conference or questionnaire and may issue a written notice to the participants in the hearing scheduling the hearing and setting forth the conditions applicable to the conduct of the hearing.

(F) Filing with depository agent

(1) All briefs, memoranda, motions, or other filings shall be filed with the depository agent within three days after service on the other participants in the hearing. A certificate of service shall be attached attesting to the service of a copy of the filing on the other participants in the hearing and the hearing examiner. Service is governed by rule 5 of the Ohio Rules of Civil Procedure (www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf, July 1, 2014) except that any reference to "court" in rule 5 will be interpreted to refer to the "depository agent."

(2) A copy of all written requests or filings that are made to the depository agent, the director, or the hearing examiner shall be served upon the other participants in the hearing and the hearing examiner. A certificate of service shall be attached attesting to the service of a copy on the other participants and the hearing examiner.

(3) Only those pleadings, orders, and other documents filed with the depository agent shall be a part of the official record.

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

(5) All orders, reports, recommendations, and rulings issued by the hearing examiner shall be signed, dated, and filed with the depository agent.

(6) All exhibits, or other evidence admitted into the record or proffered, shall be filed by the hearing examiner with the depository agent at the conclusion of the hearing.

(G) Withdrawal of notice of intended action

ODM, upon its own motion, at any time before the issuance of an adjudication order, may withdraw its notice of intended action without prejudice to the rights of the parties. A party may withdraw a request for a hearing only with the prior approval of the hearing examiner.

Effective: 1/1/2015
Five Year Review (FYR) Dates: 01/01/2020
Promulgated Under: 119.03
Statutory Authority: 5160.02, 5164.02
Rule Amplifies: 119.06, 119.07, 119.08, 119.09, 119.094, 119.10, 119.12, 119.13

5160-70-05 Chapter 119 hearings: pre-hearing discovery and subpoenas.

(A) Pre-hearing discovery

(1) Unless otherwise ordered by the hearing examiner, pre-hearing discovery is allowed. Unless otherwise ordered by the hearing examiner or as set forth in this rule, pre-hearing discovery shall be conducted and used at the hearing in accordance with the Ohio Rules of Civil Procedure (www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf, July 1, 2014) except that any reference to "court" shall be interpreted to refer to the "hearing examiner".

(2) Depositions of ODM employees shall be conducted in the Columbus offices of ODM during normal business hours unless other arrangements are approved by ODM.

(3) In accordance with Civ. R. 45, depositions of persons who are not participants in the hearing shall be taken in the county where the deponent resides or is employed or transacts business in person, or at such other convenient place as agreed to by the participants in the hearing or as fixed by an order of the hearing examiner.

(4) Pre-hearing discovery may begin immediately after a hearing request is timely made and must be completed before the commencement of the hearing, unless the hearing examiner issues an order establishing a different begin date and/or end date for discovery.

(5) At a time required by the hearing examiner, a party shall provide a report prepared by every witness identified as an expert by the party. The report shall be signed by the witness and shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years or at any time if the witness testified in any matter in which ODM or its predecessor agencies were a party or participants in a hearing. An expert witness who is an employee of ODM shall not be required to prepare an expert witness report. The participants in a hearing shall bear their own expert witness costs. Any participant in the hearing seeking discovery of an expert shall not be required to pay any portion of the fees and expenses incurred by the other participants in obtaining facts and opinions from an expert or for costs of the expert witness in responding to discovery.

(B) Subpoena issuance and enforcement

(1) ODM shall issue blank subpoena forms to a participant in the hearing requesting a subpoena. The requestor is responsible for completing the subpoena form, including the address where the person is to be served, and returning the completed subpoena form to the depository agent along with a written request for service. The written request for service and the completed subpoena must be received by the depository agent no later than twenty-one business days before the commencement of the hearing or deposition, unless otherwise ordered by the hearing examiner for good cause shown. At its discretion, ODM may make available an electronic version of the subpoena and may authorize electronic submission of a completed subpoena.

(2) For hearings, upon its own initiation or that of any participant in the hearing, ODM shall issue a subpoena to any person within the state requiring the person's attendance as a witness and/or the production of books, records or papers at the hearing. For any person subpoenaed for attendance at a hearing, at the time of service of such a subpoena upon a person outside of Franklin county, the fees for one day's attendance and mileage shall be tendered, without demand by the person being subpoenaed. At the time of service of such a subpoena upon a person inside of Franklin county, the fees for one day's attendance and mileage shall be tendered upon demand by the person being subpoenaed. ODM shall pay the fees and mileage as set forth in section 119.094 of the Revised Code.

(3) For depositions, upon its own initiation or that of any participant in the hearing, ODM shall issue a subpoena to any person within the state who is not a participant in the hearing, requiring his or her attendance and/or the production of books, records or papers.

(a) Participants in the hearing shall participate in depositions upon notice of opposing counsel. A subpoena may not be used to obtain the attendance of a participant or the production of documents by a participant in discovery. Rather, a participant's attendance at a deposition shall be obtained only by notice under Civ.R. 30, and the production of books, records, and papers shall be obtained from a participant in discovery only pursuant to Civ. R. 34.

(b) For any person who is not a participant in the hearing and who is subpoenaed for attendance at a deposition and/or for the production of books, records or papers, at the time of service of a subpoena upon a person outside of Franklin county, the fees for one day's attendance and mileage shall be tendered, without demand by the person being subpoenaed. At the time of service of a subpoena upon a person inside of Franklin county, the fees for one day's attendance and mileage shall be tendered, upon demand by the person being subpoenaed. The amount of the fees and mileage shall be the same as those set forth in section 2335.06 of the Revised Code. Sections 119.09 and 119.094 of the Revised Code require ODM to pay fees and mileage only of persons subpoenaed as witnesses in a hearing. ODM is not required to pay the fees and mileage for a person subpoenaed for a deposition. The participant in the hearing requesting ODM to issue a subpoena for a deposition shall include with the request a check for the fees and mileage made payable to the person subpoenaed.

(4) All subpoenas issued under this rule shall be directed to the sheriff of the county where the person to be served resides or is found, and the sheriff shall serve and return the subpoena in the same manner as a subpoena in a criminal case. The sheriff shall be paid by ODM the same fees for services as are allowed in the court of common pleas in criminal cases as established in section 311.17 of the Revised Code.

(5) 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, ODM shall 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: 1/1/2015
Five Year Review (FYR) Dates: 01/01/2020
Promulgated Under: 119.03
Statutory Authority: 5160.02, 5164.02
Rule Amplifies: 119.06, 119.07, 119.08, 119.09, 119.094, 119.10, 119.12, 119.13

5160-70-06 Chapter 119 hearings: conducting the hearing, report and recommendation, filing objections, adjudication order, appealing the adjudication order.

(A) Conducting the hearing

(1) The date, time, and place of any hearing before ODM is set by ODM 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 with the depository agent. Hearings shall be scheduled in accordance with the following requirements.

(a) All hearings shall be conducted in Columbus during normal business hours unless other times are authorized by the director or the hearing examiner.

(b) Upon the written request of a party, the director may designate the site of the hearing to be the county seat of the county wherein a party resides or, alternately, a place within fifty miles of a party's residence. The approval of an alternative location is at the discretion of the director. Requests for an alternative hearing site must be filed with the depository agent at least forty five days before the scheduled date of the hearing and served as provided in rule 5160-70-04 of the Administrative Code.

(c) Once begun, the hearing shall continue day to day until completed, unless continued by the hearing examiner for good cause shown.

(2) Subject to the prior approval of the hearing examiner, the party may choose to present its case entirely in writing provided that a written request is made by the party no later than fourteen business days before the date scheduled for the hearing. Any request by a party to present its case entirely in writing must be filed with the depository agent and served as provided in rule 5160-70-04 of the Administrative Code. Any party 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 shall be in writing and filed with the depository agent. In the event that the party elects to present its case in writing, ODM may elect to present its case entirely in writing. Nothing in this rule is to be construed as preventing ODM from compelling the attendance of the party or other witnesses at the hearing and questioning the party or other witnesses as if on cross-examination. Nothing in this rule is to be construed as preventing the party from examining any witnesses or evidence presented by ODM at the hearing.

(3) During the course of any hearing, the participants in the hearing may enter into oral stipulations of fact, procedure, or the authenticity of documents, which shall be incorporated into the record and shall bind the conduct of the participants. The hearing examiner may require oral stipulations to be reduced to writing and submitted to the hearing examiner. The hearing examiner has the power to rule on the admissibility of evidence or testimony, but a participant may make objections to the rulings. If the hearing examiner refuses to admit evidence or testimony, the participant seeking admission of same must make a proffer thereof and such proffer shall be made a part of the record of the hearing. The hearing examiner may refer to the Ohio Rules of Evidence (www.supremecourt.ohio.gov/LegalResources/Rules/evidence/evidence.pdf, July 1, 2012) as guidance in making decisions on admissibility.

(4) Any notice of intended action or any document that supports the issuance of the notice of intended action issued by ODM, if offered into evidence, constitutes, regardless of consent of any party, prima facie evidence sufficient to establish the facts contained therein and that, if not rebutted by the party, is sufficient to sustain a determination that ODM has met its burden of proof. The party carries the burden of production to rebut the prima facie evidence. Nothing in this rule prevents ODM from presenting additional evidence in reply to the rebuttal evidence presented by the party.

(B) Report and recommendation and filing objections

(1) After the conclusion of the hearing, the hearing examiner shall submit to ODM a written report setting forth the hearing examiner's findings of fact and conclusions of law and a recommendation of the action to be taken by ODM. The report shall be filed with the depository agent. Within five days of the report's filing with the depository agent, as evidenced by the time stamp of the agent, ODM shall send by certified mail, return receipt requested, to the party, the party's attorney, or other authorized representative of record a copy of the hearing examiner's report. The report shall be considered to have been mailed as of the mailing date appearing on United States postal service form 3800 or any future equivalent postal service form. If delivery is not successful by certified mail, the provisions regarding the steps subsequent to the mailing of certified mail in section 119.07 of the Revised Code shall be followed for service of the report.

(2) Any participant in the hearing may file written objections to the hearing examiner's report. Any such objections must be received no later than ten days after the participant in the hearing receives the report. The director may grant an extension of time to file objections if the participant's written request for an extension is received by ODM no later than ten days after the participant's receipt of the report. The date the participant in a hearing receives the hearing examiner's report is the receipt date indicated on the United States postal service form 3800, or any future equivalent postal services form. The director shall consider timely written objections before approving, modifying, or disapproving the recommendation of the hearing examiner.

(3) The director may order additional testimony to be taken by the hearing examiner and permit the introduction of further documentary evidence to the hearing examiner. The hearing examiner shall issue a revised written report and recommendation after consideration of any additional testimony and evidence. If the hearing examiner issues a revised report and recommendation, the provisions of paragraphs (B)(1) and (B)(2) of this rule shall be applied to the revised report and recommendation in the same manner as they were applied to the original report and recommendation.

(C) Adjudication order

(1) The recommendation of the hearing examiner may be approved, modified, or disapproved by the director. In those instances where the director modifies or disapproves the recommendation of the hearing examiner, the director shall include the reasons therefor and incorporate said reasons into the adjudication order.

(2) After the director enters an order approving, modifying, or disapproving the hearing examiner's recommendation on the ODM journal of proceedings, the director shall mail to any party 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. A copy of such order shall be mailed to the attorney or other authorized representative of record.

(D) Appeal of an adjudication order

(1) Any party adversely affected by an adjudication order, pursuant to this rule, may appeal from that order to the Franklin county court of common pleas.

(2) Any party desiring to appeal pursuant to this rule must file a notice of appeal with the depository agent 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 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 law. In order to be determined filed with ODM, the notice of appeal must be received by the depository agent, as evidenced by an ODM date and time stamp, no later than fifteen days after the mailing to the party, as evidenced by the mailing date on the United States postal service form 3800 or any future equivalent postal service form, of the adjudication order to be appealed from. The appellant shall also file the notice of appeal with the Franklin county court of common pleas no later than fifteen days after the mailing to the party, as evidenced by United States postal service form 3800 or any future equivalent postal service form, of the adjudication order to be appealed from. In filing a notice of appeal with the agency or the court, the notice that is filed may be the original notice or a copy of the original notice.

(E) Any stenographic record, including depositions, related to a hearing or an appeal pursuant to section 119.12 of the Revised Code shall not be considered a public record for purposes of section 149.43 of the Revised Code.

Effective: 1/1/2015
Five Year Review (FYR) Dates: 01/01/2020
Promulgated Under: 119.03
Statutory Authority: 5160.02, 5164.02
Rule Amplifies: 119.06, 119.07, 119.08, 119.09, 119.094, 119.10, 119.12, 119.13