(A) Adjudication hearings may be
conducted before the board, a board hearing committee or a hearing examiner
appointed by the board.
(B) The hearing examiner shall be
licensed to practice law in Ohio and may be an employee of the board or an
independent contractor.
(C) The board hearing committee shall be
composed of at least three board members, and one or more alternates, appointed
by the board at a public meeting, to serve for a term of one year. One board
hearing committee member shall preside and be responsible for conduct of the
hearing. The presiding board member shall also be responsible for approving the
report and recommendation discussed in paragraph (H) of this rule. The board
hearing committee may request advice on legal questions from a staff attorney
employed by the board, or an attorney with whom the board contracts as a
hearing examiner, related to procedural or evidentiary questions or in
preparation of the report and recommendation. This legal consultation shall not
be deemed an ex parte communication.
(D) All hearings shall be open to the
public, but the board hearing committee or hearing examiner conducting a
hearing may close the hearing to the extent necessary to protect compelling
interests or to comply with statutory requirements. In the event this occurs,
the board hearing committee or hearing examiner shall state on the public
record the reasons for closing the hearing.
(E) If the hearing examiner or board
hearing committee determines that permitting broadcasting, televising,
recording or the taking of photographs in the hearing room would not distract
participants, impair the dignity of the proceedings, violate patient
confidentiality or otherwise materially interfere with the achievement of a
fair administrative hearing, the broadcasting, televising, recording or taking
of photographs during hearing proceedings open to the public may be permitted
under the following conditions and upon request:
(1) Requests for
permission for the broadcasting, televising, recording or taking of photographs
in the hearing room shall be made in writing and submitted to the hearing
examiner or board hearing committee prior to the start of the hearing, and
shall be made part of the record of the proceedings;
(2) Written permission is
granted prior to the start of the hearing by the hearing examiner or board
hearing committee and is made part of the record of the
proceedings;
(3) The filming,
videotaping, recording or taking of photographs of witnesses who object shall
not be permitted; and
(4) Any film, video,
photograph or audio recording created during a hearing, except for an audio
recording made by the court reporter hired by the board to prepare the
stenographic hearing record, shall not be part of the record of the
proceeding.
(F) The board hearing committee or hearing examiner shall conduct
hearings so as to prevent unnecessary delay, maintain order and ensure the
development of a clear record. The authority of the board hearing committee or
hearing examiner conducting a hearing includes, but is not limited to, the
following:
(1) Administering oaths
or affirmations;
(2) Ordering that
subpoenas be issued or that depositions in lieu of live testimony be
conducted;
(3) Examining witnesses
and directly witnesses to testify;
(4) Making rulings on
admissibility of evidence;
(5) Making rulings on
procedural motions, whether such motions are oral or written;
(6) Holding prehearing
conferences, as discussed in rule 4723-16-05 of the Administrative
Code;
(7) Requesting briefs,
before, during or after a hearing;
(8) Issuing scheduling
orders for exchange of documents and filing deadlines;
(9) Determining the order
of the hearing;
(10) Requiring or
disallowing oral or written opening statements and closing
arguments;
(11) Consolidating two or more matters
involving the same respondent into one hearing;
(12) Preparing entries, proposed findings,
and reports and recommendations to the board, as discussed in paragraph (H) of
this rule; and
(13) Based upon a conflict in schedule,
complexity of the issues involved, or for reasons of administrative efficiency,
the board hearing committee may reassign the matter to a hearing examiner, or a
hearing examiner may reassign to another hearing examiner or to the board
hearing committee.
(14) In the sole
discretion of the board hearing committee or hearing examiner, the hearing may
be conducted by live, real-time video conference if requested and agreed upon
by both parties. The board hearing committee or hearing examiner shall issue
instructions as to how the proceeding is to be conducted. The video conference
platform selected must enable the parties, hearing examiner, court reporter and
witnesses to see and converse with each other and to display documentary and
physical evidence. The video conference platform selected must be widely
available to the general public without charge, and accessible to the public to
watch and listen to the hearing, upon request, unless the hearing or portions
thereof are closed to the public by the hearing examiner according to paragraph
(D) of this rule.
(G) The board hearing committee or
hearing examiner may recommend in the report and recommendation that factual or
legal allegations set forth in the notice of opportunity for hearing issued to
respondent be dismissed, however, the authority of the board hearing committee
or hearing examiner does not include authority to grant motions for dismissal
of, or to otherwise dismiss, factual or legal allegations, or to modify,
compromise or settle factual or legal allegations.
(H) Within one hundred twenty days of the date an adjudication
hearing is closed, the board hearing committee or hearing examiner assigned to
the case shall submit a written report to the board setting forth the proposed
findings of fact and conclusions of law, or in the case of the board hearing
committee, conclusions, and a recommendation of action to be taken by the
board. A copy of the written report shall be mailed by certified mail to
representatives of record for both parties. Either party may, within ten days
of receipt of the report and recommendation, file written objections. Written
objections, if filed in a timely manner, shall be considered by the board in
determining whether to approve, modify or reject the report and
recommendation.
(I) At a board meeting scheduled after the time for filing
objections to a report and recommendation has passed, the board may approve,
modify or reject the report and recommendation of the board committee or
hearing examiner. Members of the board hearing committee that heard a case
shall abstain from voting on a matter heard as members of the board hearing
committee.