Chapter 5160-80 Rights and Procedures Applicable to Medical Assistance Recipients

5160-80-01 Hearings conducted under authority of section 5160.37 of the Revised Code: definitions and scope of applicability.

(A) Rules 5160-80-01 to 5160-80-09 of the Administrative Code describe the hearing rights, appeal rights, and procedures applicable to medical assistance recipients under section 5160.37 of the Revised Code for contesting the amount of the department's or county department's claims for reimbursement under section 5160.37 of the Revised Code for medical assistance paid.

(B) Definitions

As used in rules 5160-80-01 to 5160-80-09 of the Administrative Code, the following terms shall have the following meanings unless otherwise specified.

(1) "Appellant" means a medical assistance recipient who is utilizing the hearing process under Chapter 5160-80 of the Administrative Code.

(2) "Authorized representative" means an individual at least eighteen years of age or a legal entity that is appointed by the medical assistance recipient to assist or stand in the place of the medical assistance recipient for the purpose of the hearing process or an appeal to the director. The department may request proper verification from the authorized representative of the appointment.

(3) "County department" means any of the local county department of job and family services.

(4) "Depository agent" means the department's office at its official mailing address for purpose of receiving correspondence or filings for a hearing or administrative appeal conducted under authority of Chapter 5160-80 of the Administrative Code.

(5) "Department" means the Ohio department of medicaid.

(6) "Director" means the director of the Ohio department of medicaid or that person's designee.

(7) "Electronic" has the same meaning as in section 1306.01 of the Revised Code.

(8) "Final lien amount" is the amount the department or county department determines in writing that the medical assistance recipient owes for reimbursement for medical assistance paid on the medical assistance recipient's behalf, subject to the right to collect additional reimbursement as set forth in division (F) of section 5160.37 of the Revised Code.

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

(10) "Medical assistance recipient" or "recipient" means a recipient or former recipient of a medical assistance program who has had some or all of his or her medical expenses paid by the department or county department.

(11) "Party" includes (a) a medical assistance recipient who requests a hearing or an administrative appeal under Chapter 5160-80 of the Administrative Code, or the executor or administrator of an medical assistance recipient's estate authorized to make or pursue such a request and (b) the department or county department that has claim for medical reimbursement involved in those proceedings.

(12) "Request for hearing" is a clear expression in writing by a medical assistance recipient or the recipient's authorized representative or attorney stating that medical assistance recipient wants to dispute the amount of the department's or county department's claim for reimbursement or to seek recovery of money that the department or county department received pursuant to section 5160.37 or 5160.38 of the Revised Code or former section 5101.58 or 5101.59 of the Revised Code.

(13) "Request for an administrative appeal" is a clear expression by the medical assistance recipient or the medical assistance recipient's authorized representative or attorney to the effect that the appellant wants to have the hearing decision or a decision to deny or dismiss a hearing request reviewed by the director. The request must be in writing and signed by the appellant or the appellant's authorized representative or attorney.

(14) "Third party" means the entity which has provided funds to the medical assistance recipient, or to whom the recipient has initiated informal recovery activity or filed a legal recovery action, that gives rise to the department's or county department's right of recovery.

Effective: 6/13/2016
Five Year Review (FYR) Dates: 06/13/2021
Promulgated Under: 119.03
Statutory Authority: 5160.02
Rule Amplifies: 5160.37

5160-80-02 Hearing requests.

(A) Making a request for hearing

(1) A request for hearing must be submitted to the depository agent in writing by the medical assistance recipient or by the medical assistance recipient's authorized representative or attorney and shall be subject to the requirements of this rule.

(2) The request for hearing shall address only the issue of whether the amount determined for reimbursement of medical assistance paid by the department or county department should be different than set forth in section 5160.37 of the Revised Code. The hearing examiner shall freely grant leave to a medical assistance recipient or to a medical assistance recipient's authorized representative or attorney to amend the written hearing request if it fails to comply with this requirement.

(3) For a payment owed to the department or county department on or after September 29, 2015, the following shall apply:

(a) Before a medical assistance recipient can make a hearing request, the medical assistance recipient must receive from the department or county department a letter with a final lien amount.

(b) If the medical assistance recipient is requesting a hearing pursuant to division (L)(1) or (L)(2) of section 5160.37 of the Revised Code, the medical assistance recipient must provide the following information with the hearing request, subject to documentation verification upon demand of the department:

(i) The total amount to be paid to resolve all claims of the medical assistance recipient, including, but not limited to, medical expenses, loss of income, loss of consortium, and pain and suffering.

(ii) The amount that has been collected as a result of the settlement, compromise, judgment, or award giving rise to the department's or county department's claim for reimbursement.

(iii) The amount of attorney fees incurred to obtain the settlement, compromise, judgment, or award.

(iv) The amount of costs and expenses incurred to obtain the settlement, compromise, judgment, or award.

(c) In addition to the information requested pursuant to paragraph (A)(3)(b) of this rule, the medical assistance recipient requesting a hearing pursuant to division (L)(1) or (L)(2) of section 5160.37 of the Revised Code shall provide with the hearing request the following documentation:

(i) A copy of all written settlement agreements, compromises, judgments, or awards referenced in paragraph (A)(3)(b) of this rule.

(ii) If the medical assistance recipient does not pay to the department or county department the final lien amount, documentation from a bank or other financial institution providing the account number and the amount being held in an escrow account or an attestation from an attorney identifying the amount being held in an interest on lawyers' trust account pursuant to division (L)(1) of section 5160.37 of the Revised Code.

(d) If the medical assistance recipient does not include all of the information and documentation required in Paragraphs (A)3(b) and (A)(3)(c) of this rule, the department shall send written notice to the medical assistance recipient and the medical assistance recipient's attorney or authorized representative listing the information and documentation not provided. If the medical assistance recipient or the medical assistance recipient's attorney or authorized representative fails to provide all the requested information and documentation within thirty calendar days of the date of mailing of the written notification, the department shall dismiss the hearing request without prejudice.

(4) Written documentation of the appointment of an authorization representative by a medical assistance recipient must accompany the hearing request made on the medical assistance recipient's behalf by an authorized representative. Attorneys may make a written hearing request on a medical assistance recipient's behalf without providing written authorization. To obtain medical assistance information or protected health information, an attorney representing the medical assistance recipient must provide a written release meeting the requirements of section 5160.45 of the Revised Code or written documentation that the attorney is acting in the capacity as an authorized representative.

(B) Time limit

(1) For payments owed to the department or county department on or after September 29, 2015, written notification by the department or county department to the medical assistance recipient of the final lien amount shall include a notice of the recipient's right to request a hearing.

(2) If a medical assistance recipient does not elect to escrow or have placed in a lawyers' trust account the final lien amount, a request for hearing must be made not later than ninety calendar days after payment of the final lien amount to the department or county department. When counting the days to determine whether an appeal is timely, the date on which notice was mailed, sent by electronic means, or otherwise provided is not counted. If the last day of the time period falls on a Saturday, Sunday, or state or federal legal holiday, the time period is extended to include the next workday.

(C) Determining whether a hearing request is timely made.

(1) If a request for hearing is made 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 evidence by the agent's time stamp.

(2) If a request is made through the website designated by the department for making a hearing request, the request is deemed to have been made when the request is electronically recorded by the website.

(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 evidence 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 personally delivered to the depository agent, the request is deemed to have been made as of the date of its receipt by the depository agent's time stamp.

(5) 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 or otherwise not properly sent, the request is deemed to have been made as of the date of its receipt by the depository agent as evidence by the depository agent's time stamp.

(6) The hearing request shall clearly identify the medical recipient making the request by name, address and phone number. If a request is made through a website designated by the department for making a hearing request, the request shall provide the information required by the website to identify the medical assistance recipient.

Effective: 6/13/2016
Five Year Review (FYR) Dates: 06/13/2021
Promulgated Under: 119.03
Statutory Authority: 5160.02
Rule Amplifies: 5160.37

5160-80-03 Postponement of the hearing.

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

(1) The hearing may be postponed at the request of a party for good cause.

(2) The hearing examiner shall have final authority to determine whether good cause exists.

(B) When a request for postponement is denied, the party or the party's authorized representative or attorney must attend the scheduled hearing, or submit written arguments and evidence in writing in lieu of attending the hearing if a timely request to do so was made pursuant to rule 5160-80-06 of the Administrative Code, or be subject to dismissal as described in rule 5160-80-04 of the Administrative Code.

Effective: 6/13/2016
Five Year Review (FYR) Dates: 06/13/2021
Promulgated Under: 119.03
Statutory Authority: 5160.02
Rule Amplifies: 5160.37

5160-80-04 Denial and dismissal of hearing requests.

(A) All hearing requests shall be made in one of the methods set forth in rule 5160-80-02 of the Administrative Code.

(B) A hearing request may be denied prior to the issuance of the department's notice scheduling a hearing for only the following reasons:

(1) The hearing request is untimely, as defined by rule 5160-80-02 of the Administrative Code.

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

(3) The request fails to raise the issue of whether the amount determined for reimbursement of medical assistance paid by the department or county department reimbursement should be different than set forth in section 5160.37 of the Revised Code.

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

(C) When a hearing request is denied, the department shall issue to the medical assistance recipient and to the medical assistance recipient's authorized representative or attorney written notice describing the reason for the denial.

(D) Once the hearing examiner has issued a notice scheduling a hearing, a request for a hearing may be dismissed only for the following reasons:

(1) The medical assistance recipient or medical assistance recipient's authorized representative or attorney withdraws the hearing request with prejudice before the hearing decision is issued.

(2) The medical assistance recipient or the medical assistance recipient's authorized representative or attorney fails, without good cause, to appear at the hearing. The hearing examiner shall have final authority to determine if good cause was timely shown. Verification of good cause may be required.

(E) When a hearing request is dismissed pursuant paragraph (D)((2) of this rule, the hearing examiner shall issue to the medical assistance recipient and to the medical assistance recipient's authorized representative or attorney written notice describing the reason for the dismissal, with a copy to counsel for the department or county department.

(F) Dismissal or denial of a hearing request under this rule constitutes a binding decision on the parties. In the event that a dismissal notice or hearing denial is issued in error, it may be reversed by the director on appeal as provided for in rule 5160-80-09 of the Administrative Code.

Effective: 6/13/2016
Five Year Review (FYR) Dates: 06/13/2021
Promulgated Under: 119.03
Statutory Authority: 5160.02
Rule Amplifies: 5160.37

5160-80-05 Scheduling and attendance.

(A) Time and place of the hearing

(1) All hearings shall be conducted in Columbus, Ohio, during normal business hours unless other times are authorized by the hearing examiner. The appellant and department or county department may elect to participate in the hearing via video conference with the hearing examiner's consent. No telephone hearings shall be allowed.

(2) Upon the written request of an appellant, the director may designate the site of the hearing to be the county seat of the county wherein the appellant resides or, alternately, a place within fifty miles of the appellant's residence. The approval of an alternative location is at the director's discretion. Requests for an alternative hearing site must be filed by the appellant with the depository agent at least forty-five calendar days before the hearing date, with service as required by rule 5160-80-06 of the Administrative Code.

(B) The hearing examiner shall issue a scheduling notice providing the time, date, and place of the hearing to the appellant and to the appellant's authorized representative or attorney and to the department or county department.

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

(2) The scheduling notice shall be issued at least sixty calendar days prior to the date of the hearing, unless the appellant or appellant's attorney or authorized representative requests an expedited hearing. Expedited hearings may be granted at the discretion of the hearing examiner.

(3) The scheduling notice shall:

(a) Provide the name, address and telephone number of the person to notify if a party or party's authorized representative or attorney cannot attend the hearing.

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

(c) Contain a general explanation of hearing procedures and provide other information necessary for the appellant's understanding of the proceedings. The explanation of hearing procedures will set forth deadlines, including the deadlines for disclosure of information as identified in paragraph (D) of this rule.

(C) Attendance

Attendance at the hearing is limited to the following:

(1) The department or county department representative.

(2) The appellant and authorized representative.

(3) Legal representation for the parties. The attorney general, or assistant attorney general or special counsel designated by the attorney general, shall represent the department.

(4) Witnesses called by the appellant and by the department or county department to present relevant testimony, subject to the right of any party to move for separation of witnesses.

(5) Other persons, only if their attendance as determined by the hearing examiner does not interfere with the orderly conduct of the hearing.

(D) Pre-hearing discovery is not allowed. The department or county department shall provide the appellant and the appellant's authorized representative or attorney no later than thirty calendar days following the issuance of the scheduling notice with copies of any relevant, non-privileged records it has concerning the appellant's medical billing, correspondence, and payment history. The appellant or the appellant's authorized representative or attorney shall provide counsel for the department or county department no later than thirty calendar days after issuance of the scheduling notice with the names and addresses of any third party and the attorney for the third party. When the third party is an insurance company, the appellant or the appellant's authorized representative or attorney shall also provide the names and addresses of the beneficiaries of the issuance policy. Upon a showing of good cause, or upon the hearing examiner's own initiative, this thirty day period may be increased or decreased.

(E) Subpoenas

(1) The depository agent shall issue blank subpoena forms to a party requesting a subpoena for the purpose of compelling at the hearing testimony or the production of documents. The party 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 and a check for witness fees and mileage made payable to the witness. The written request for service and the completed subpoena, along with a check for witness fees and mileage, must be received by the department no later than thirty calendar days before the commencement of the hearing, unless otherwise ordered by the hearing examiner for good cause shown. At its discretion, the department may make available an electronic version of the subpoena and may authorize electronic submission of a completed subpoena. A party requesting issuance of a subpoena shall serve a copy of the subpoena upon the opposing party. A party objecting to the issuance of a subpoena may file a motion to quash setting forth in specific detail the bases for the objection.

(2) For hearings, upon its own initiation or that of any party in the hearing, the department 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. A subpoena may be served by a sheriff, bailiff, coroner, clerk of court, constable, or a deputy of any of the foregoing, by an attorney at law, or by any other person designated by order of the department who is not a party and is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, by leaving it at the person's usual place of residence, or by placing a sealed envelope containing the subpoena in the United States mail as certified or express mail return receipt requested with instructions to the delivering postal authority to show to whom delivered, date of delivery and address where delivered. Witness fees and mileage fees shall be tendered without demand upon residents living outside the county in which the hearing is being held on the day of their testimony, and upon demand on residents living inside the county in which the hearing is being held on the day of their testimony.

(3) In any case of disobedience or neglect of any subpoena served upon any person, or the refusal of any witness to testify to any matter in which there may be lawful interrogation, the department 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: 6/13/2016
Five Year Review (FYR) Dates: 06/13/2021
Promulgated Under: 119.03
Statutory Authority: 5160.02
Rule Amplifies: 5160.37

5160-80-06 Rights and responsibility of the parties and hearing examiner.

(A) The appellant and the department or county department.

(1) The parties shall comply with the following service requirements:

(a) A certificate of service shall be attached to each filing with the depository agent attesting to service of a copy on the other party 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, March 8, 2016) except that any reference to "court" in rule 5 will be interpreted to refer to the "depository agent."

(b) Only those brief, motions, memoranda, documents, and other filings filed with the depository agent shall be considered part of the hearing record. They must be filed with the depository agent within three days after service on the other party in the hearing.

(c) All briefs, memoranda, motions, and other filings shall be on eight-and-one half inch by eleven-inch paper and double-spaced.

(2) The appellant has the burden of proof by a showing of clear and convincing evidence that the amount determined for reimbursement of medical assistance paid by the department or county department on behalf of the medical assistance recipient should be different than set forth in division (G)(2) of section 5160.37 of the Revised Code.

(3) The parties shall engage in settlement discussions prior to the hearing, as directed by order of the hearing examiner. The settlement discussions shall occur no later than the document exchange required under paragraph (D) of rule 5160-80-05 of the Administrative Code.

(4) The parties may provide to the hearing examiner, at least seven calendar days prior to the hearing, a written statement of their position in the case in lieu of, or supplemental to, an opening statement.

(5) The appellant and the department or county department shall, as ordered by the hearing examiner, prior to hearing exchange all proposed exhibits and other documents to be used at the hearing.

(6) If an appellant's attorney seeks to have access at the hearing to the appellant's medical assistance information or protected health information without the appellant being present and the attorney is not acting in the capacity as an authorized representative, the attorney must present written authorization signed by the appellant meeting the requirements of section 5160.45 of the Revised Code.

(7) The appellant and the department or county department shall have the opportunity to present their case. The hearing shall be conducted informally, and formal rules of evidence shall not apply. The parties shall have an adequate opportunity to:

(a) Present witnesses.

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

(c) Advance arguments.

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

(B) The hearing examiner

(1) Hearings shall be conducted by an impartial department hearing examiner who has no personal stake or involvement in the case and was not directly involved in the initial determination being appealed. The hearing examiner shall be under the direction and supervision of the department.

(2) All orders, reports, recommendations, and rulings issued by the hearing examiner shall be signed, dated, and filed with the depository agent. The depository agent shall make services of those filings on the parties.

(3) The hearing examiner by order shall direct the parties to engage in settlement discussions and to report back the results of those discussions.

(4) The hearing examiner shall have the general authority to regulate the course of the hearing and to issue orders governing the conduct of the hearing. This includes the authority to:

(a) 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.

(b) To rule on the admissibility of evidence, objections, motions, and to rule on procedural matters.

(c) 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.

(5) The hearing examiner, at his or her discretion, may hold pre-hearing conferences for the purpose of resolving matters that can be resolved by the parties, 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, and discussing any other matters deemed appropriate by the hearing examiner for the thorough and expeditious preparation and disposition of the case.

(6) A party may choose to present its case entirely in writing provided that a written notice is served on the other party and hearing examiner no less than fourteen calendar days before the date scheduled for the hearing. Any party who elects to present the case entirely in writing must do so in accordance with procedures ordered by the hearing examiner. In the event that one party elects to present its case entirely in writing, the other party may elect to present its case entirely in writing by providing written notice to the hearing examiner and other party no later than seven calendar days before the date scheduled for the hearing. Nothing in this rule shall be construed as preventing a party from compelling the attendance of another party or other witnesses at the hearing or from questioning the party or other witnesses as if on cross-examination.

(7) The hearing examiner shall begin the hearing by having the recording equipment started and providing the following introductory information:

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

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

(c) The general time frame within which a decision will 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.

(8) The hearing examiner shall entertain and rule on any procedural matter prior to opening statements or the presentation of evidence.

(9) The hearing examiner 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.

(10) The hearing examiner shall regulate the order of presentation by the parties. Normally, as the party with the burden of proof, the appellant's presentation will be made first, subject to questioning by the department or county department and the hearing examiner, followed by the department's or county department's presentation, subject to questioning by the appellant and the hearing examiner. The parties will then be allowed a brief closing statement.

(11) In regulating the conduct of the hearing, the hearing examiner 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 present its case. The hearing examiner has an affirmative obligation to assist an unrepresented appellant in understanding the nature of the matters at issue and how the hearing is to be conducted. The hearing examiner shall take an active part in questioning the parties and the evidence presented, insofar as that is necessary to develop the fullest possible record.

(12) After all relevant testimony and evidence has been presented, the hearing examiner shall determine whether a sufficient record has been developed upon which to make the decision. If not, the hearing examiner may order that the hearing be continued to a later date, permit the issuance of additional subpoenas (if there is a need for unanticipated, relevant testimony ) or leave the record open for the submission of additional evidence.

(a) If the hearing is to be continued to a later date, the hearing examiner shall schedule the continuance at the earliest possible date 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 the issuance of a hearing scheduling notice to the parties.

(b) If the record is to be left open to allow the submission of additional documentary evidence, the hearing examiner 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 examiner and for response by the parties to that submission.

(c) Additional evidence submitted pursuant to the deadline shall be forwarded by the party to the opposing party. Evidence submitted after the deadline may be returned to the submitting party by the hearing examiner with notice that it will not be used in reaching the decision.

(13) The hearing examiner shall close the hearing by informing the parties when they can expect the written decision, adjourning the hearing, and verifying that the recording equipment is turned off.

(14) 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.

(15) Following the hearing, the hearing examiner shall not discuss the substance of the case with the parties, unless they or their authorized representatives or attorneys participate.

Effective: 6/13/2016
Five Year Review (FYR) Dates: 06/13/2021
Promulgated Under: 119.03
Statutory Authority: 5160.02
Rule Amplifies: 5160.37

5160-80-07 Recording of hearing.

(A) The hearing examiner shall make an audio recording of the hearing. 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 be a part of the hearing record. The recording shall be maintained pursuant to the department's record retention schedule.

(C) The appellant, the appellant's attorney or authorized representative, or department's or county department's legal representative may request a copy of the recording. The department shall respond to such requests within twenty-one business days whenever possible, and shall provide the copy free of any charge. Non-receipt of a copy of a recording within the administrative appeal period shall not result in an extension of the administrative appeal period.

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

Effective: 6/13/2016
Five Year Review (FYR) Dates: 06/13/2021
Promulgated Under: 119.03
Statutory Authority: 5160.02
Rule Amplifies: 5160.37

5160-80-08 Hearing decisions.

(A) The hearing examiner is responsible for preparing and issuing the hearing decisions under the authority of the department.

(B) Basis

(1) The hearing examiner's findings of fact shall be based exclusively on the evidence introduced at the hearing, and upon the submission of additional evidence after the hearing and subject to examination and rebuttal by the parties as described in rule 5160-80-06 of the Administrative Code.

(a) The hearing examiner may be guided, but shall not be bound, by the Ohio Rules of Evidence in conducting hearings and in making findings of fact. The hearing examiner shall consider all relevant evidence offered at the hearing.

(b) Hearsay evidence may be considered by the hearing examiner in arriving at the findings of fact. However, such evidence must be critically evaluated, since it is not given under oath and cannot be cross-examined to test the declarant's perception, memory, and veracity. Direct evidence shall normally be given more weight than hearsay evidence when the two are in conflict.

(C) Content of hearing decision.

The hearing decision shall separately set forth the issue to be decided of whether the amount determined for reimbursement of medical assistance paid by the department or county department should be different than set forth in section 5160.37 of the Revised Code, the hearing examiner's findings of fact, conclusions of law, and the decision and order.

(1) The procedural matters shall be addressed first. These include, but are not limited to, delays due to postponement, resolution of disputes as to standing, and status of subpoena requests.

(2) The findings of fact shall follow procedural matters. The findings of fact shall be a clear and orderly chronological discussion of the facts and events relevant to the reimbursement issue.

(3) Conclusions of law shall follow findings of fact. The decision shall clearly indicate the basis for each conclusion of law, to include discussion of the relative weight given to conflicting evidence in arriving at the decision as well as a discussion of any relevant law.

(D) Notification

The hearing examiner shall file its hearing decision with the depository agent. The decision shall provide notice to the appellant of the right to and the method of obtaining an administrative appeal. Within five business days of the decision's filing with the depository agent, the depository agent shall mail a copy of the hearing decision by regular U.S. mail to the appellant and to the appellant's attorney or authorized agent and to counsel for the county or county department.

(E) Hearing record

The hearing decision, together with the hearing recording, documents admitted into evidence at the hearing and all papers and requests filed in the proceeding, shall constitute the hearing record. The hearing record shall be maintained by the department in accordance with applicable record retention requirements. It will be made available for review by a party upon request.

(F) Binding effect

A hearing held on an appellant's hearing request resulting in a hearing decision is final and binding upon the parties, has res judicata effect, and only subject to review through the appeal process set forth in section 5160.37 of the Revised Code and rule 5160-80-09 of the Administrative Code.

Effective: 6/13/2016
Five Year Review (FYR) Dates: 06/13/2021
Promulgated Under: 119.03
Statutory Authority: 5160.02
Rule Amplifies: 5160.37

5160-80-09 Administrative appeal of the hearing decision.

(A) An appellant who disagrees with a hearing decision has the right to request an administrative appeal from the director.

(B) Notice of the right to and the method of obtaining an administrative appeal shall be included in all hearing denial notices, hearing dismissal notices, and hearing decisions.

(C) Administrative appeal requests

(1) A request for an administrative appeal must be in writing and signed by the appellant or the appellant's authorized representative or attorney.

(2) Written documentation of the appointment of an authorization representative must accompany the appeal request made on an appellant's behalf by the appellant's authorized representative, unless the representative was the authorized representative of record at the hearing stage, or the request is made by the appellant's attorney.

(3) The request must be received by the depository agent within fifteen calendar days from the date the hearing decision being appealed was mailed.

(D) Denial of administrative appeal

(1) An administrative appeal request may be denied for any of the following reasons:

(a) It is not made by the appellant's or by the appellant's authorized representative or attorney, as required by paragraph (C)(2) of this rule.

(b) It is not timely, as defined by paragraph (C)(3) of this rule.

(2) The department shall file written notice of the denial with the depository agent.The depository agent within five business days of filing of the denial shall mail copies of the denial by regular U.S. mail to the appellant and to the appellant's authorized representative or attorney and to counsel for the department or county department.

(E) Review by the director of the administrative appeal.

A hearing decision will be reviewed by the director for one or more of the following reasons:

(1) The decision is contrary to the weight of the evidence presented.

(2) A prejudicial error was committed in the course of the proceedings.

(3) The decision relies on an incorrect application of law or rule.

(F) Administrative appeal decisions

(1) The director shall review the appeal request and the hearing record. The director shall issue an administrative appeal decision which addresses the issues of fact and law raised in the appeal request. The director shall adopt the hearing decision when it contains a correct application of law and is supported by the record. The director shall amend the findings of facts or conclusions of law of the hearing decision that contain any errors or do not correctly apply the appropriate laws, rules or burden of proof, and clearly explain the reason and basis for any such amendment. The director may reverse the hearing decision and remand the case to the hearing examiner for additional action if the appellant met the requisite burden of proof or there was a procedural or other type of error that resulted in an unfair or prejudicial process for the appellant. The director also may remand the matter to the hearing examiner for additional testimony or to permit the introduction of further documentary evidence. The director may reverse, decrease, or increase any monetary finding made for the appellant if there is a basis in either law or the record for this action.

(2) The director shall file with the depository agent the director's administrative appeal decision, which shall include notice of right to file an appeal with the court of common pleas of Franklin county in accordance with section 119.12 of the Revised Code. Within five business days of the filing, the depository agent shall mail a copy of the administrative appeal decision to the appellant and to the appellant's attorney or authorized representative and to counsel for the department or county department.

(G) Administrative appeal record

The administrative appeal record shall consist of the hearing record, appeal request, and the administrative appeal decision, together with all requests, documents, and correspondence filed in the administrative appeal proceeding. The administrative appeal record shall be compiled and maintained by the department in accordance with department's record retention schedules and made available for review by the parties or the parties' authorize representative or attorney upon request.

(H) Finality

(1) An administrative appeal decision that affirms, reverses, or modifies the hearing decision being appealed is final and binding upon the parties, has res judicata effect, and is only subject to appeal through the process set forth in section 119.12 of the Revised Code.

(2) An administrative appeal decision that vacates the original decision and remands the case does not constitute a final administrative resolution.

Effective: 6/13/2016
Five Year Review (FYR) Dates: 06/13/2021
Promulgated Under: 119.03
Statutory Authority: 5160.02
Rule Amplifies: 5164.37