This website publishes administrative rules on their effective dates, as designated by the adopting state agencies, colleges, and
universities.
| Rule |
Rule 4731-13-01 | Representatives; appearances.
(A) As used in this chapter of the
Administrative Code: (1) "Respondent" means a person who is requesting or
has requested a hearing as provided in Chapter 119. of the Revised
Code. (2) "Representative
of record" means one person designated by each party to be the
party's agent for purposes of receipt of service pursuant to this chapter
of the Administrative Code. (3) "Hearing"
means the adjudication hearing held pursuant to Chapter 119. of the Revised
Code when a hearing is requested by an applicant or licensee for whom the Board
has proposed formal action under section 4730.25, 4731.22, 4759.07, 4760.13,
4761.09, 4762.13, 4774.13, or 4778.14 of the Revised Code. (4) "Summary
Suspension" means the pre-hearing suspension of the license under division
(G) of section 4730.25, 4731.22, 4759.07, 4760.13, 4761.09, 4762.13, 4774.13,
or 4778.14 of the Revised Code. (B) The respondent may represent himself
or herself or may be represented by an attorney or attorneys who shall be
admitted to the practice of law in Ohio. Each attorney representing the
respondent shall enter his or her appearance in writing. The respondent may
authorize his or her attorney or attorneys to represent the respondent in all
facets of a hearing before the board. (C) If the respondent is self
represented, he or she shall be deemed the representative of record for
purposes of service pursuant to this chapter of the Administrative Code. If the
respondent is represented by one attorney, that attorney shall be deemed the
representative of record for purposes of service pursuant to this chapter of
the Administrative Code. If the respondent is represented by more than one
attorney, the respondent shall designate one of those attorneys as the
representative of record for purposes of service pursuant to this chapter of
the Administrative Code. (D) Each representative from the office
of the attorney general shall enter his or her appearance in writing. The
office of the attorney general shall identify one attorney from that office as
the representative of record for purposes of service pursuant to this chapter
of the Administrative Code. (E) The respondent shall not be required to appear personally at
any hearing provided he or she has not been subpoenaed. If a respondent has not
been subpoenaed to appear at hearing, a respondent may present his or her
position, arguments or contentions in writing. (F) An attorney who has filed notice of
appearance with the board shall withdraw his or her representation of a
respondent by filing a written notice of withdrawal with the board. A written
notice of withdrawal should include (1) current address and telephone number of
respondent, and (2) an attestation from the attorney that the respondent has
been provided copies of all filings and has been specifically notified of all
dates and deadlines. (G) An attorney who has been designated
as a respondent's representative of record for purposes of service
pursuant to this chapter of the Administrative Code shall remain the
representative of record for that party until a representative of that party
files a written notice designating another attorney or the respondent as the
representative of record. (H) Except as otherwise provided under
Chapter 119. of the Revised Code, communications from the board or its hearing
examiner shall be sent to the representative of record for each
party.
Last updated August 2, 2021 at 9:26 AM
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Rule 4731-13-02 | Filing request for hearing.
(A) In order to request a hearing
pursuant to Chapter 119. of the Revised Code, the respondent or the
respondent's attorney or attorneys shall file a written request for a
hearing in accordance with rule 4731-13-08 of the Administrative Code. The
request shall be filed within thirty days of the date of mailing of the
board's notice of opportunity for hearing upon which service is perfected,
of the date of personal service of the board's notice of opportunity for
hearing or of the date of publication of the board's notice of opportunity
for hearing in accordance with Chapter 119. of the Revised Code, whichever
occurs first. The date of mailing of the board's notice of opportunity for
hearing shall be the date postmarked on the certified mail
receipt. (B) A respondent properly filing a
request for a hearing, whether personally or by attorney or attorneys, shall be
entitled to such hearing within fifteen days but not sooner than seven days
after such request has been filed unless both parties agree otherwise or a
continuance is granted pursuant to section 119.09 of the Revised Code and rule
4731-13-06 of the Administrative Code.
Last updated February 28, 2023 at 12:50 PM
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Rule 4731-13-03 | Authority and duties of hearing examiners.
(A) Hearings shall be conducted before
hearing examiner pursuant to section 4731.23 of the Revised Code. (B) All hearings shall be open to the
public, but the hearing examiner conducting a hearing may close the hearing to
the extent necessary to protect compelling interests and rights or to comply
with statutory requirements. In the event the hearing examiner determines to
close the hearing, the hearing examiner shall state the reasons in the public
record. (C) The hearing examiner shall conduct
hearings in such a manner as to prevent unnecessary delay, maintain order and
ensure the development of a clear and adequate record. (D) The authority of the hearing examiner
shall include, but not be limited to, authority to: (1) Administer oaths and
affirmations; (2) Order issuance of
subpoenas and subpoenas duces tecum to require the attendance of witnesses at
hearings and depositions in lieu of live testimony and to require the
production of evidence for hearings and depositions in lieu of live
testimony; (3) Examine witnesses and
direct witnesses to testify; (4) Make rulings on the
admissibility of evidence; (5) Make rulings on
procedural motions, whether such motions are oral or written; (6) Hold prehearing
conferences; (7) Request briefs
before, during or following the hearing; (8) Prepare entries,
proposed findings, proposed orders or reports and recommendations pursuant to
rule 4731-13-15 of the Administrative Code; (9) Make rulings on requests to
broadcast, record, televise or photograph the hearing; (10) Take such other actions as may be
necessary to accomplish the purposes of paragraph (C) of this rule;
and (11) Determine the order in which any
hearing shall proceed. (E) The authority of the hearing examiner
shall not include authority to grant motions for dismissal of charges, or
modify, compromise or settle charges or allegations. (F) The hearing examiner shall have such
other powers, duties, and authority as are granted by statutes or
rules. (G) All rulings on evidence and motions
and on any other procedural matters shall be subject to review by the board
upon presentation of the proposed findings of facts and conclusions of law of
the hearing examiner. When such rulings warrant, the board may remand the
matter to the attorney hearing examiner. (H) The hearing examiner may assist the
board by reviewing the evidence in matters that have been subject to a notice
of opportunity for hearing but for which no timely hearing request has been
filed. In such matters the hearing examiner may prepare proposed findings and a
proposed order for the board's consideration. (I) Briefs provided under paragraph
(D)(7) of this rule shall comply with the requirements set forth in rule
4731-13-07.1 of the Administrative Code. (J) Upon the motion of a party, or upon the hearing
examiner's own motion, the hearing examiner shall have the authority to
conduct hearings by use of a live, real-time video-conferencing system. Such a
system must provide a means, through the use of software that is widely
accessible to the general public without charge, for the hearing examiner,
attorneys, the respondent, witnesses, and a court reporter, along with any
other necessary participants, to see and converse with each other and to
display documentary and physical evidence. Further, the video-conferencing
system must also provide a means by which members of the public may view and
listen to the hearing.
Last updated August 2, 2021 at 9:26 AM
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Rule 4731-13-04 | Consolidation.
Effective:
February 28, 2004
Upon motion by either party, or upon the initiative of the hearing examiner, the hearing examiner may consolidate two or more hearings into a single hearing, unless either party objects for good cause.
Last updated February 28, 2023 at 12:50 PM
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Rule 4731-13-05 | Intervention.
Promulgated Under:
Ch 119.
Petitions to intervene shall not be permitted.
Last updated February 28, 2023 at 12:51 PM
Supplemental Information
Authorized By:
–
Amplifies:
–
Five Year Review Date:
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Rule 4731-13-06 | Continuance of hearing.
(A) Except in matters of summary
suspension, the board or the board through its hearing examiner, shall continue
the initially scheduled hearing upon its own motion in order to more
efficiently and effectively conduct its business unless the circumstances
establish that a continuance would not serve the interest of justice. The new
hearing date shall be set according to the case management schedule approved by
the board for the type of violation alleged and available from the board's
website at http://med.ohio.gov/. In setting the new hearing date, the hearing
examiner shall make a reasonable attempt to obtain input from the parties. Upon
motion of at least one of the parties demonstrating extraordinary
circumstances, the hearing examiner may approve a special case management
schedule. (B) A hearing shall be continued only
with the approval of the board or its hearing examiner based upon a written
motion of a party or upon the initiative of the hearing examiner. (C) A motion for a continuance shall not
be granted unless good cause and proper diligence is demonstrated. (1) Before granting any
continuance, consideration shall be given to harm to the public which may
result from delay in proceedings. (2) In no event will a
motion for a continuance requested less than fourteen days prior to the
scheduled date of the hearing be granted unless it is demonstrated that good
cause exists which would justify the granting of a continuance. (D) No continuance of a hearing for a
summary suspension shall be granted without the written agreement of the
respondent or the respondent's attorney or attorneys and of the board
through its secretary and supervising member. (E) If a continuance is granted, the
entry granting the continuance shall specify the dates to which the hearing is
continued and shall be set in accordance with the case management schedule.
Upon motion of at least one of the parties demonstrating extraordinary
circumstances, the hearing examiner may approve a special case management
schedule. (F) Hearings shall not be continued due
to the unavailability of a subpoenaed witness without approval of the hearing
examiner. (1) The hearing examiner
may hold the record open to accept a deposition in lieu of live testimony of a
subpoenaed witness. (2) The procedures set
forth in rules 4731-13-20 and 4731-13-20.1 of the Administrative Code shall
apply to any deposition in lieu of live testimony taken pursuant to this
rule.
Last updated August 2, 2021 at 9:26 AM
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Rule 4731-13-07 | Motions.
(A) Except as otherwise provided under
Chapter 4731-13 of the Administrative Code or Chapter 119. of the Revised Code,
all motions, unless made upon the record at hearing, shall be made in writing.
A written motion shall state with particularity the relief or order sought,
shall be accompanied by a memorandum setting forth the grounds therefore, and
shall be filed in compliance with rule 4731-13-08 of the Administrative Code.
Except in cases of summary suspensions pursuant to division (G) of section
4731.22 of the Revised Code, all prehearing motions except motions for
continuance pursuant to rule 4731-13-06 of the Administrative Code and motions
to quash pursuant to paragraph (F) of rule 4731-13-13 of the Administrative
Code, shall be made no later than fourteen days before the date of hearing
unless express exception is granted by the hearing examiner or by this
chapter. (1) If filed by email,
motions and supporting or opposing memoranda shall be filed as pdf attachments
to emails, and not be incorporated into the body of the email
itself. (2) All supporting or
opposing memoranda shall comply with rule 4731-13-07.1 of the Administrative
Code. (B) All motions, together with any
supporting documentation, shall be served as provided in rule 4731-13-09 of the
Administrative Code. (C) Any response to a prehearing motion
shall be filed within ten days after service of that motion, or at such other
time as is fixed by the hearing examiner. A movant may reply to a response only
with the permission of the hearing examiner. (D) Before ruling upon a written motion,
the hearing examiner shall consider all memoranda and supporting documents
filed. The hearing examiner shall enter a written ruling and shall issue copies
to each representative of record. The ruling on all motions made at hearing
shall be included in the hearing transcript except where the hearing examiner
elects to take the motion under advisement and issue a written ruling at a
later time. The hearing examiner shall include in each written ruling on a
motion a statement of the reasons therefore. (E) Except as otherwise provided in this
chapter or Chapter 119. of the Revised Code, rulings on all motions filed
subsequent to the issuance of the report and recommendation shall be rendered
by the board or, if the board is not in session, by its president or the vice
president if the president is unavailable acting on its behalf. (1) Responses to motions
shall be filed no later than three days after service of the motion as set
forth in the certificate of service attached to the served copy of the motion.
A movant may reply to a response only with the permission of the board through
its president or vice president if the president is unavailable, and only under
extraordinary circumstances, such as an assertion that a material inaccuracy of
fact or law was provided in the response. (2) Motions for extension
of time for filing objections shall be filed on or prior to the deadline for
filing the objections. A motion for extension of time for filing objections
filed after the deadline will not be considered absent extraordinary
circumstances, as determined by the board through its president or vice
president if the president is unavailable.
Last updated August 2, 2021 at 9:26 AM
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Rule 4731-13-07.1 | Form and page limitations for briefs and memoranda.
(A) All hearing briefs provided under
paragraph (D)(7) of rule 4731-13-03 of the Administrative Code and memoranda
filed under rule 4731-13-07 of the Administrative Code shall be provided or
filed subject to the following requirements: (1) The body text of a
brief or memorandum shall be set in a legible typeface of at least twelve
points, either single-spaced or double-spaced. (2) A brief or memorandum
shall not exceed fifteen pages exclusive of the certificate of service and the
appendix unless an exception is granted in advance pursuant to paragraph (A)(3)
of this rule. (3) Upon motion by either
party, or upon the initiative of the hearing examiner, the hearing examiner may
authorize briefs or memoranda that exceed fifteen pages, up to a maximum of
thirty pages exclusive of the certificate of service and the appendix, in
matters that involve complex legal issues. Unless made upon the record at
hearing, a motion for such a determination shall be filed no later than seven
days prior to the deadline for filing the brief or memorandum. (4) If a reply memorandum
is authorized pursuant to paragraph (C) of rule 4731-13-07 of the
Administrative Code, that memorandum shall not exceed seven pages exclusive of
the certificate of service and the appendix. (B) Briefs and memoranda provided in
contravention of the requirements set forth in paragraph (A) of this rule will
be accepted for filing, however, pages beyond the fifteen page limit shall not
be considered.
Last updated August 2, 2021 at 9:26 AM
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Rule 4731-13-08 | Filing.
(A) A document is "filed" when
it is received and time stamped in the offices of the board. For documents
received via e-mail or through any electronic filing system implemented by the
board, the time stamp provided by the board's computer shall be the time
of receipt. Documents received after five p.m. eastern standard time shall not
be considered for filing until the next business day. (B) An original of any document required
to be served by Chapter 4731-13 of the Administrative Code shall be filed with
the board not more than three days after service. (C) All filings shall be addressed to the
board to the attention of its hearing unit.
Last updated August 2, 2021 at 9:27 AM
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Rule 4731-13-09 | Service.
To be considered by the board and its hearing
examiner, any document required by Chapter 4731-13 of the Administrative Code
to be served shall: (A) Be served either personally, by
regular mail, by facsimile, by e-mail, or through any electronic filing system
which provides automatic notice to parties utilized by the board. Service is
complete on the date of mailing, e-mailing, facsimile or personal service of
the document. (B) Contain the name, address, and
telephone number of the person submitting the document and shall be
appropriately captioned to indicate the name of the respondent. (C) Have a certificate of service on it.
A certificate of service shall be signed and contain the
following: (1) The date of
service; (2) The method by which
service was made; (3) The address where
service was made; and (4) The name of the
person or authority who was served.
Last updated August 2, 2021 at 9:27 AM
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Rule 4731-13-10 | Computation and extension of time.
(A) The date of occurrence of the event
causing time to run is not counted in the computation of any time limit under
Chapter 4731-13 of the Administrative Code. The last day of the period is
included in the computation of the time limit. If the last day of a period is
not a regular business day, the time period runs through the end of the next
regularly scheduled business day. (B) The board or its hearing examiner may
extend the time for filing or responding to motions and briefs. (1) Requests for
extension of time shall be made in writing and filed as provided in rule
4731-13-08 of the Administrative Code prior to the expiration of any applicable
time limit. (2) Requests for
extension of time shall be addressed to the attention of the board's
hearing unit. (3) Requests for
extension of time shall be served as provided in rule 4731-13-09 of the
Administrative Code.
Last updated February 28, 2023 at 12:51 PM
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Rule 4731-13-11 | Notice of hearings.
Notice specifying the date, time and place set for
hearing shall be mailed by certified mail to the representatives of record,
except that notice of changes to the date, time or place set for hearing shall
be mailed by regular mail, e-mail or facsimile if a representative of each
party participated in the selection of the new date, time or place.
Last updated February 28, 2023 at 12:51 PM
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Rule 4731-13-12 | Transcripts.
(A) Duplicate transcripts of the
stenographic record taken of hearings may be obtained directly from the court
reporter at the requestor's expense prior to receipt of the original
transcript by the board, except as otherwise restricted by 4731-13-31 of the
Administrative Code. (B) Upon request made to the board's
hearing unit, a copy of the original hearing transcripts may be reviewed at the
board offices. Additional copies may be prepared at the requestor's
expense and shall be provided by the board within a reasonable period of
time. (C) Original transcripts shall not be
removed from the board offices. (D) Any portion of a hearing transcript
which contains information that is required to be kept confidential pursuant to
any state or federal law shall be sealed and made part of the hearing record.
Confidential portions of hearing transcripts shall be provided only to agents
of the parties for purposes of the administrative hearing and shall not be
disseminated to any other persons.
Last updated February 28, 2023 at 12:51 PM
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Rule 4731-13-13 | Subpoenas for purposes of hearing.
(A) Upon written request, the board shall
issue subpoenas for purposes of hearing to compel the attendance and testimony
of witnesses and production of books, records and papers. Each subpoena shall
indicate on whose behalf the witness is required to testify. Copies of such
subpoenas shall be issued to each representative of record. (B) For purposes of a hearing conducted
pursuant to Chapter 119. of the Revised Code, subpoena requests shall specify
the name and address of the individual to be served and the date and time at
which the individual is to appear. With respect to the production of books,
records and papers, such request shall set a compliance date in accordance with
the exchange deadlines established by the hearing examiner in rule
4731-13-18. (C) Except upon leave of the board or its
hearing examiner, subpoena requests are to be filed with the board as provided
in rule 4731-13-08 of the Administrative Code at least twenty-one days in
advance of the requested date of compliance in order to allow sufficient time
for preparation and service of the subpoenas. (D) In the event that the number of
subpoenas requested appears to be unreasonable, the board or its hearing
examiner may require a showing of necessity therefore and, in the absence of
such showing, may limit the number of subpoenas. Absent such a limitation,
subpoenas shall be issued within seven days of request. Failure to issue
subpoenas within this time may constitute sufficient grounds for the granting
of a continuance. (E) After the hearing has commenced the
hearing examiner may order the issuance of subpoenas for purposes of hearing to
compel the attendance and testimony of witnesses and production of books,
records and papers. Copies of such subpoenas shall be issued to each
representative of record. (F) Upon motion and for good cause, the
hearing examiner may order any subpoena be quashed. Motions to quash shall be
made in the manner provided in rules 4731-13-07 and 4731-13-08 of the
Administrative Code, except that motions to quash shall be filed at least seven
days prior to the date of compliance. The non-moving party may file a response
no later than five days after service of the motion to quash or at least one
day prior to the date of compliance whichever is earlier. Unless a motion to
quash has been granted, a witness shall attend the hearing to which he or she
was subpoenaed. The board shall make a reasonable attempt to contact any
witness whose subpoena has been quashed. (G) Witnesses shall not be subpoenaed to
prehearing conferences.
Last updated August 2, 2021 at 9:27 AM
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Rule 4731-13-14 | Mileage reimbursement and witness fees.
Effective:
February 28, 2004
(A) Mileage shall be paid in the same manner as that allowed in the court of common pleas in criminal cases in the county of hearing. (B) The respondent shall not subpoena him or her self. (C) Mileage and witness fees shall be returned by anyone who fails to appear at the hearing for which he or she was subpoenaed.
Last updated February 28, 2023 at 12:51 PM
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Rule 4731-13-15 | Reports and recommendations.
(A) Within thirty days following the
close of a hearing conducted under Chapter 119. of the Revised Code, the
hearing examiner shall submit a written report setting forth proposed findings
of fact and conclusions of law and a recommendation of the action to be taken
by the board. The hearing shall not be considered closed until such time as the
record is complete, as determined by the hearing examiner. (B) A copy of such written report shall
be issued to each representative of record. The copy issued to the
respondent's representative of record shall be accompanied by notice of
the date the report and recommendation is to be considered by the
board. (C) Either representative of record may,
within ten days of receipt of the hearing examiner's report and
recommendation, file written objections to the report and recommendation. Only
those objections filed in a timely manner shall be considered by the board
before approving, modifying, or disapproving the hearing examiner's
recommendation, unless otherwise determined by the board. (D) Upon written request, the board may
grant extensions of the time within which to file objections to the report and
recommendation. In the event that the board is not in session, the president of
the board may grant such extensions. (E) Unless otherwise determined by the
board based upon written motion of a party, the board shall consider the
hearing examiner's report and recommendation and any objections thereto at
its next regularly scheduled meeting after the time for filing objections has
passed. At that time, the board may do any or all of the following: order
additional testimony to be taken: permit the introduction of further
documentary evidence; or act upon the report and recommendation. For purposes
of taking such additional testimony or documentary evidence, the board may
remand to the hearing examiner. (F) Any motion to reopen the hearing
record for purposes of introducing newly discovered material evidence that with
reasonable diligence, could not have been discovered and produced at the
hearing shall be filed in the manner provided in rules 4731-13-07 and
4731-13-08 of the Administrative Code. Such motion to reopen shall be filed not
later than fourteen days prior to the scheduled consideration by the board of
the hearing examiner's report and recommendation, unless the newly
discovered material evidence, with reasonable diligence, could not have been
discovered earlier than fourteen days prior to the scheduled consideration by
the board. The other party shall have an opportunity to file, not later than
seven days prior to the scheduled consideration by the board of the hearing
examiner's report and recommendation, a memorandum contra to said
motion. Any submission of documentation or evidence
received by the board after the close of the record and prior to the date of
consideration of the hearing examiner's report and recommendation by the
board shall be deemed a motion to reopen the record pursuant to this rule. If
such motion is filed prior to the issuance of the hearing examiner's
report and recommendation, the hearing examiner shall rule on the motion. If
such motion is filed subsequent to the issuance of the hearing examiner's
report and recommendation, the board shall rule on the motion. All submitted
materials must be accompanied by an affidavit from the moving party that sets
forth how the evidence is material, how the evidence is newly discovered, and
why it could not have been produced at hearing. The affidavit must also show
that the party made a reasonably diligent effort to obtain the material prior
to hearing. Failure to comply with the requirements of this rule shall result
in the exclusion of the submitted material unless the moving party shows good
cause and the board votes to admit the document or evidence. (G) Without leave of the board, no party
shall be permitted to address the board at the time of consideration of the
hearing examiner's report and recommendation. Any request for such leave
shall be filed by motion no less than seven days prior to the date the report
and recommendation is to be considered by the board. No such leave shall be
granted unless the opposing representative of record has been actually notified
of the request, unless otherwise determined by the board. (H) If a request to address the board is
granted, the opposing party may also address the board.
Last updated August 2, 2021 at 9:28 AM
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Rule 4731-13-16 | Reinstatement or restoration of certificate.
Any disciplinary action taken by the board which
results in a suspension from practice shall either lapse by its own terms or
contain a written statement of the conditions under which the certificate may
be reinstated or restored, unless terms for reinstatement or restoration are
otherwise governed by statute. Such conditions may include but are not limited
to: (A) Submission of a written application
for reinstatement or restoration; (B) Payment of all appropriate fees,
civil penalties, and fines as provided in Chapter 4731. of the Revised
Code; (C) Mental or physical
examination; (D) Additional education or
training; (E) Reexamination; (F) Practice limitations; (G) Participation in counseling
programs; (H) Demonstration that the respondent can
resume practice in compliance with acceptable and prevailing
standards.
Last updated August 2, 2021 at 9:28 AM
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Rule 4731-13-17 | Settlements, dismissals, and voluntary surrenders.
(A) Settlement shall be negotiated on behalf of the board by the
secretary and supervising member of the board. Any settlement agreement
containing terms not in conformity with the disciplinary guidelines adopted by
the board must have the concurrence of the board's president prior to
execution. (B) Any matter which is the subject of a
hearing may be settled by the parties. If settlement negotiations continue
after the final day of hearing, the parties shall, within ten days of the final
day of hearing, jointly present the hearing examiner with written notice
specifying a period of time, not to exceed thirty days, during which the record
shall be held open for purposes of negotiation. (1) If the hearing record
has closed or closes during the period of time specified in the parties'
joint notice, such notice shall toll the hearing examiner's thirty-day
time period for issuance of findings of fact and conclusions of law pursuant to
section 4731.23 of the Revised Code. (2) If, at the conclusion
of the time period specified by the parties' joint notice, the hearing
examiner has not received appropriate written notice that a settlement
agreement has been executed, the tolling of the hearing examiner's
thirty-day period for issuance of findings of fact and conclusions of law shall
cease, no further settlement negotiations shall be undertaken, and no
settlement agreement shall be executed in lieu of the filing of a report and
recommendation by the hearing examiner and the issuance of a final order by the
board. (C) Before being submitted to the board
for ratification, all settlement agreements shall be in writing and shall be
signed by the respondent and by the respondent's attorney, if any. Counsel
for the board shall sign the settlement agreement as follows: (1) If the settlement agreement was negotiated prior to the
issuance of a notice of opportunity for hearing, an appropriate board staff
attorney shall sign the agreement. (2) If the settlement agreement was negotiated subsequent
to the issuance of a notice of opportunity for hearing, an attorney from the
office of the attorney general shall sign the agreement. (D) Signed settlement agreements shall be
submitted to the board for ratification. (E) If the board ratifies a settlement
agreement, the secretary and supervising member of the board shall sign the
ratified agreement. (F) A notice of dismissal may be entered at any time prior to
the filing of the report and recommendation. If negotiations continue after the
final day of hearing, the procedures in paragraph (B) of this rule shall be
followed. A notice of dismissal shall be authorized and signed by the
board's secretary and supervising member. (G) This rule shall neither apply to nor limit the authority
granted the board under division (M) of section 4731.22 of the Revised Code
with regard to the surrender of a license or certificate or the withdrawal of
an application for a license or certificate. (H) In the event that the board issues an amended notice of
opportunity for hearing, the original notice of opportunity for hearing is
automatically superseded by the amended notice. To request a hearing pursuant
to Chapter 119. of the Revised Code, the respondent must file a new hearing
request in response to the amended notice of opportunity for hearing. For
purposes of this chapter of the Administrative Code, "amended cite"
means a cite in which there has been a substantive alteration to one or more
factual allegations or statutory charges, other than correction of a clerical
or technical error, that relates to the allegations set forth in the original
notice.
Last updated August 2, 2021 at 9:28 AM
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Rule 4731-13-18 | Exchange of documents and witness lists.
(A) At the time the hearing
examiner schedules the hearing with input from the parties, a case management
schedule shall be created which will include the deadline dates for each party
to provide a list of both the witnesses and the documents intended to be
introduced at hearing. (B) Upon motion of any party, failure without
good cause to provide the list of witnesses and documents by the deadline date
established in the case management schedule may result in exclusion from the
hearing of such testimony or documents. (C) The hearing examiner
shall set, in the case management schedule, the deadline dates by which the
parties shall exchange hearing exhibits, identify lay and expert witnesses and
exchange written reports from expert witnesses. (1) Absent
extraordinary circumstances, the failure of a party to produce an exhibit under
the terms of the case management schedule shall result in the exclusion of that
exhibit from evidence at hearing. (2) Absent
extraordinary circumstances, the failure of a party to identify a lay or expert
witness under the terms of the case management schedule shall result in the
exclusion of that witness' testimony at hearing. (3) Absent
extraordinary circumstances, the failure of a party to produce a written report
from an expert witness under the terms of the case management schedule shall
result in the exclusion of the witness' expert testimony at
hearing. (D) A party shall notify the
hearing examiner of any deficiency in the materials provided by the other party
within a reasonable period of time after discovery of the
deficiency. (E) A party shall notify the
hearing examiner of any failure by the other party to comply with a deadline
imposed pursuant to this rule within seven days of the failure to
comply. (F) Any witness who intends
to testify as an expert, including the respondent, must submit a written
report. A written report by an expert shall set forth the opinions to which the
expert witness will testify and the bases for such opinions. This paragraph
will not preclude the respondent from testifying as a fact
witness. (G) Any exhibit exchanged by
the parties which is a patient record or which contains information that is
required to be kept confidential pursuant to any state or federal law may be
provided only to agents of the parties for purposes of the administrative
hearing and shall not be disseminated to any other person or
entity.
Last updated February 28, 2023 at 1:02 PM
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Rule 4731-13-20 | Depositions in lieu of live testimony.
(A) Upon written motion of any party, and
upon service of that motion to the other party's representative of record,
the hearing examiner may order that the testimony of a prospective witness be
taken by deposition in lieu of live testimony. The hearing examiner may grant
the motion if it appears probable that: (1) The prospective
witness will be unavailable to attend or will be prevented from attending a
hearing; (2) The testimony of the
prospective witness is material; and (3) In the case of an
expert witness, a showing of the unavailability of the expert to attend shall
not be necessary for the hearing examiner's consideration of the motion to
take a deposition in lieu of live testimony. (B) The testimony shall be taken under
such conditions and terms as the hearing examiner shall set forth. Moreover,
the hearing examiner may order the production of any designated books, papers,
documents or tangible objects, so long as not privileged, at the same time and
place. (C) The parties shall agree to the time
and place for taking the deposition in lieu of live testimony. Depositions in
lieu of live testimony shall be conducted in the same county in which the
hearing is conducted unless otherwise agreed to by the parties. If the parties
are unable to agree, the hearing examiner shall set the time or fix the place
of deposition. (D) At a deposition in lieu of live
testimony taken under this rule, each party shall have the right, as at
hearing, to fully examine witnesses. (E) The transcript of a deposition in
lieu of live testimony taken under this rule shall be offered into evidence at
hearing. The cost of preparing a transcript of any testimony taken by
deposition in lieu of live testimony which is submitted as evidence at the
hearing shall be borne by the board. (F) The expense of any video deposition
shall be borne by the requestor.
Last updated February 28, 2023 at 1:02 PM
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Rule 4731-13-20.1 | Electronic Testimony.
(A) Upon written motion of any party, and upon service of that
motion to the other party's representative of record, the hearing examiner
may order that the testimony of a prospective witness be taken by telephonic or
real-time video testimony. The hearing examiner may grant the motion if it
appears probable that: (1) The prospective witness will be unavailable
to attend or will be prevented from attending a hearing; and (2) The testimony of the prospective witness is
material. (B) The testimony shall be taken under such conditions and terms
as the hearing examiner shall set forth. Moreover, the hearing examiner may
order the production of any designated books, papers, documents or tangible
objects, so long as not privileged, at the same time and place. (C) The hearing examiner shall set the time and fix the place of
telephonic or real-time video testimony.
Last updated February 28, 2023 at 1:02 PM
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Rule 4731-13-21 | Prior action by the state medical board.
Effective:
February 28, 2004
The hearing examiner shall admit evidence of any prior action entered by the board against the respondent. Such evidence shall include a certified copy of the final order in that prior action, and may also include other certified documents pertaining to that action.
Last updated February 28, 2023 at 1:02 PM
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Rule 4731-13-22 | Stipulation of facts.
Effective:
February 28, 2004
Parties may, by stipulation, agree on any or all facts involved in proceedings before the hearing examiner. The hearing examiner may thereafter require development of any fact the hearing examiner deems necessary.
Last updated February 28, 2023 at 1:02 PM
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Rule 4731-13-23 | Witnesses.
Effective:
September 30, 2016
(A) All witnesses at any hearing before
the hearing examiner shall testify under oath or affirmation. (B) A witness may be accompanied and
advised by legal counsel. Participation by counsel for a witness other than the
respondent is limited to protection of that witness's rights, and that
legal counsel may neither examine nor cross-examine any witnesses. (C) The board may institute contempt
proceedings pursuant to section 119.09 of the Revised Code, if a witness
refuses to answer a question ruled proper at a hearing or disobeys a
subpoena. (D) For purposes of this
chapter: (1) A sitting board
member is an individual who is currently a member of the board. (2) A presiding board
member is a sitting board member who has a decisive role in the outcome of the
matter in question and who is neither the secretary nor the supervising member
as appointed pursuant to Chapter 4731. of the Revised Code. (3) A non-presiding board
member is a sitting board member who does not have a decisive role in the
outcome of the matter in question due to recusal, absence or other
reason. (4) A presiding hearing
examiner is a hearing examiner who is assigned to the matter in question
pursuant to section 4731.23 of the Revised Code. (5) A non-presiding
hearing examiner is a hearing examiner who is not assigned to the matter in
question pursuant to section 4731.23 of the Revised Code. (E) Neither a presiding board member nor a presiding hearing
examiner shall be a competent witness in any adjudication proceeding. Evidence
from other persons relating to the mental processes of a presiding board member
or a presiding hearing examiner shall not be admissible. (F) Unless the testimony of a
non-presiding board member or a non-presiding hearing examiner is material to
the factual allegations set forth in the notice of opportunity for hearing,
neither a non-presiding board member nor a non-presiding hearing examiner shall
be a competent witness in any adjudication proceeding. (G) A sitting board member shall not be
subpoenaed to provide expert testimony. (H) Any party may move for a separation of witnesses. Expert
witnesses shall not be separated. (I) Upon commencement of a hearing, each party shall inform the
hearing examiner of the identity of each potential witness for his or her cause
who is present in the hearing room. Failure to so identify potential witnesses
may be grounds for their later disqualification as witnesses. (J) A witness may, in the discretion of the attorney hearing
examiner, testify as to an ultimate issue of fact. An expert witness may
testify regarding the appropriate treatment for impairment.
Last updated February 28, 2023 at 1:03 PM
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Rule 4731-13-24 | Conviction of a crime.
Promulgated Under:
Ch 119.
A certified copy of a plea of guilty to, or a judicial finding of guilt of any crime in a court of competent jurisdiction is conclusive proof of the commission of all of the elements of that crime.
Last updated February 28, 2023 at 1:03 PM
Supplemental Information
Authorized By:
–
Amplifies:
–
Five Year Review Date:
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Rule 4731-13-25 | Evidence.
(A) The "Ohio Rules of
Evidence" may be taken into consideration by the board or its hearing
examiner in determining the admissibility of evidence, but shall not be
controlling. The "Ohio Rules of Evidence" are readily available to
attorneys and may be found at libraries, bookstores and on the internet at
www.supremecourt.ohio.gov/LegalResources/Rules/evidence/evidence.pdf. (B) The hearing examiner may permit the
use of electronic or photographic means for the presentation of
evidence.
Last updated February 28, 2023 at 1:03 PM
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Rule 4731-13-26 | Broadcasting and photographing administrative hearings.
Effective:
February 28, 2004
If the hearing examiner determines that broadcasting, televising, recording or taking of photographs in the hearing room would not distract participants, impair the dignity of the proceedings 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: (A) Requests for permission for the broadcasting, televising, recording or taking of photographs in the hearing room shall be made in writing to the hearing examiner prior to the commencement of the hearing, and shall be made a part of the record of the proceedings; (B) Permission is expressly granted prior to commencement of the hearing in writing by the hearing examiner and is made a part of the record of the proceedings; (C) If the permission is granted, the hearing examiner shall specify the place or places in the hearing room where operators and equipment are to be positioned; (D) The filming, videotaping, recording or taking of photographs of witnesses who object thereto shall not be permitted.
Last updated February 28, 2023 at 1:03 PM
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Rule 4731-13-27 | Sexual misconduct evidence.
Effective:
February 28, 2004
In those cases where sexual misconduct has been alleged: (A) Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's sexual activity with the offender, and only to the extent that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. (B) Prior to taking testimony or receiving evidence of any sexual activity of the victim, the hearing examiner shall resolve the admissibility of the proposed evidence in a closed hearing. The victim may be represented by counsel in that hearing or other proceedings to resolve the admissibility of evidence upon approval by the hearing examiner. (C) Nothing in this rule shall be construed as limiting the authority of the hearing examiner to close a hearing as provided under paragraph (B) of rule 4731-13-03 of the Administrative Code.
Last updated February 28, 2023 at 1:03 PM
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Rule 4731-13-28 | Supervision of hearing examiners.
Effective:
February 28, 2004
The hearing examiners shall perform their duties under the supervision and direction of the board's executive director, provided that the board, other than the secretary and supervising member, shall have exclusive authority to impose discipline based on the substance of the hearing examiners' reports and recommendations.
Last updated February 28, 2023 at 1:03 PM
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Rule 4731-13-30 | Prehearing conference.
Effective:
February 28, 2004
With or without written motion from any party, the hearing examiner may schedule a prehearing conference to address any matter related to preparation for or conduct of a hearing. The prehearing conference may be in person or by telephone. No witness testimony shall be taken during a prehearing conference. Any documents presented at the prehearing conference shall be made part of the hearing record. If a transcript of the proceeding is prepared, the transcript shall be made part of the hearing record.
Last updated February 28, 2023 at 1:04 PM
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Rule 4731-13-31 | Transcripts of prior testimony.
Effective:
February 28, 2004
(A) Any transcript of prior testimony of a witness may be used for the purpose of refreshing the recollection, contradicting the testimony or impeaching the credibility of that witness. If only a part of a transcript is offered into evidence by a party, the other party may offer any other part. (B) A transcript of testimony and exhibits from a prior proceeding may be introduced for any purpose if that prior proceeding concerns the basis for the board's allegations against the respondent. Upon offering part of a transcript or exhibit from a prior proceeding, the offering party may be required by the other party to present any other part of the offered item which should in fairness be considered contemporaneously with it. (C) Nothing in this paragraph shall be construed to permit the taking of depositions for purposes other than those set forth in rule 4731-13-20 of the Administrative Code. (D) Nothing in this rule shall be construed to limit the use of a prior statement by a respondent as set forth in rule 4731-13-32 of the Administrative Code.
Last updated February 28, 2023 at 1:04 PM
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Rule 4731-13-32 | Prior statements of the respondent.
Effective:
February 28, 2004
Prior statements of the respondent shall not be excluded on the basis of hearsay.
Last updated February 28, 2023 at 1:04 PM
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Rule 4731-13-33 | "Physicians' Desk Reference".
The board or its hearing examiner may utilize the
"Physicians' Desk Reference" (PDR) for information regarding the
FDA approved labeling for dangerous drugs. The edition(s) of the PDR utilized
shall be the edition(s) contemporaneous with the allegations set forth in the
notice of opportunity for hearing upon which the hearing is based. The
"PDR" is a well-known and readily available text. It may be found at
libraries, bookstores or on the internet at www.pdr.net. The board or its
hearing examiner may also utilize the US national library of medicine at
medlineplus.gov.
Last updated August 2, 2021 at 9:28 AM
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Rule 4731-13-34 | Ex parte communication.
(A) The members of the board shall base
their decisions on any matter subject to hearing only on the evidence of
record. No information acquired by a member of the board in any way other than
by review of the evidence of record shall be considered by such member in that
member's decision on a matter subject to hearing. The receipt of
information about a matter subject to hearing outside the evidence of record
shall not disqualify the member from participating in the decision on that
matter unless the member excuses himself or herself from participation in the
decision on the ground that he or she cannot restrict his or her decision on
the matter to the evidence of record. (B) Except as otherwise provided under
this chapter or by statute, no hearing examiner or member of the board shall
initiate or consider ex parte communications concerning a substantive matter
related to a pending hearing. Nothing contained herein, however, shall preclude
the hearing examiner from nonsubstantive ex parte communications on procedural
matters and matters affecting the efficient conduct of adjudicatory
hearings. (C) The hearing examiner and members of
the board shall disclose on the public record the source of any ex parte or
attempted ex parte communications pertaining to a substantive issue. If the
recipient of the ex parte communication determines that he or she can no longer
render an impartial decision, the recipient shall recuse himself or herself
from further participation in consideration of the matter. (D) If requested by any party, the
recipient of the ex parte communication shall file with the board an affidavit
setting forth the substance of the ex parte communication. The affidavit shall
be sealed, held as proffered material and maintained with the hearing
record.
Last updated February 28, 2023 at 1:04 PM
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Rule 4731-13-35 | Severability.
Effective:
February 28, 2004
(A) Except as otherwise provided under this chapter or by statute, a rule promulgated under this chapter shall apply only to those administrative proceedings for which the notice of opportunity for hearing was mailed to respondent, or his representative, on or after the effective date of the particular rule. (B) If any provision of the rules in this chapter of the Administrative Code or if the application of any provision of the rules in this chapter of the Administrative Code is held invalid, the invalidity shall not affect any other provision of the rules in this chapter, or the application of any other provision of the rules in this chapter, that can be given effect without the invalid provision or application, and, to this end, the provisions of the rules in this chapter are hereby declared severable.
Last updated February 28, 2023 at 1:04 PM
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Rule 4731-13-36 | Disciplinary actions.
For purposes of Chapters 4730., 4731., 4759.,
4760., 4761., 4762., 4774., and 4778. of the Revised Code and Chapters 4730.,
4731., 4774., and 4778. of the Administrative Code: (A) "Permanent revocation"
means the permanent loss of a certificate to practice in Ohio and the
inability, at any time, to reapply for or hold any certificate to practice in
Ohio. An individual whose certificate has been permanently revoked shall
forever thereafter be ineligible to hold any certificate to practice, and the
board shall not accept from that individual an application for reinstatement or
restoration of the certificate or for issuance of any new
certificate. (B) "Revocation" means the loss
of a certificate to practice in Ohio. An individual whose certificate has been
revoked shall be eligible to submit an application for a new certificate. The
application for a new certificate shall be subject to all requirements for
certification in effect at the time the application is submitted. In
determining whether to grant such an application, the board may consider any
violations of Chapters 4730., 4731., 4759., 4760., 4761., 4762., 4774., and
4778. of the Revised Code, whichever is applicable, that were committed by the
individual before or after the revocation of the individual's certificate,
including those that formed the basis for the revocation. All disciplinary
action taken by the board against the revoked certificate shall be made a part
of the board's records for any new certificate granted under this
rule. (C) "Suspension" means the
temporary loss of a certificate to practice in Ohio. A suspension shall be
imposed for either a definite term or an indefinite term. (1) An order for a
definite term of suspension shall specify the time period of the suspension. A
certificate which has been suspended for a definite term shall be reinstated at
the conclusion of the specified time period. (2) An order for an
indefinite term of suspension shall contain a written statement of the
conditions under which the certificate may be reinstated. Such conditions may
include, but are not limited to, the following: (a) A minimum time period of suspension; (b) Submission of a written application for
reinstatement; (c) Payment of all appropriate fees, civil penalties, and fines
as provided in Chapters 4730., 4731., 4759., 4760., 4761., 4762., 4774., and
4778. of the Revised Code; (d) Mental or physical examination; (e) Additional education or training; (f) Reexamination; (g) Participation in counseling programs; (h) Demonstration that the certificate holder can resume practice
in compliance with acceptable and prevailing standards; (i) Satisfactory completion of all terms, conditions or
limitations placed upon the certificate holder through a board-approved consent
agreement or board order; (j) Passage of an examination to determine present fitness to
resume practice, pursuant to section 4731.222 of the Revised Code;
and (k) Acceptance of conditions of probation or practice
limitations. (D) "Limitation" means to
preclude the certificate holder from engaging in a particular conduct or
activity, to impose conditions on the manner in which that conduct or activity
may be performed, or to require the certificate holder to abide by specific
conditions in order to continue practicing medicine. A limitation shall be
either temporary or permanent. (E) "Probation" means a
situation whereby the certificate holder shall continue to practice only under
conditions specified by the board. Failure of the certificate holder to comply
with the conditions of probation may result in further disciplinary action
being imposed by the board. The probation period shall be for either a definite
or an indefinite term. If probation is for an indefinite term, the board shall
establish a minimum probation period and the board shall release the
certificate holder from the conditions of probation upon completion of the
minimum probation period and upon the board's determination that the
purpose of probation has been fulfilled. (F) "Reprimand" means the
certificate holder is formally and publicly reprimanded in
writing. (G) "No Further Action" means
that the board finds that a violation occurred but declines to impose any
disciplinary sanction. No further action shall be ordered by the board under
circumstances where the board finds that all necessary remedial measures have
been completed by the certificate holder, future monitoring is unnecessary and
reprimand is not warranted. (H) "Dismissal" means that the
board finds that no violation occurred. (I) "Grant of Application for
Certificate" means that the board grants an application for a certificate
to practice. In matters where disciplinary violations have been alleged against
an applicant for a certificate, the grant of an application for certificate may
be accompanied by a suspension, limitation, probation, reprimand or no further
action. (J) "Permanent Denial" and
"Permanent Refusal to Register or Reinstate" mean the permanent
denial of an application for a certificate to practice in Ohio. An individual
whose application for a certificate has been permanently denied shall forever
thereafter be ineligible to apply to the board for any certificate to practice,
and the board shall not accept from that individual an application for issuance
of any certificate. (K) "Denial" and "Refusal
to Register to Reinstate" mean the denial of an application for a
certificate to practice in Ohio. An individual whose application for a
certificate has been denied shall be eligible to submit a new application for a
certificate. The new application shall be subject to all requirements for
certification in effect at the time the new application is submitted. In
determining whether to grant a new application, the board may consider any
violations of Chapters 4730., 4731., 4759., 4760., 4761., 4762., 4774., and
4778. of the Revised Code, whichever is applicable, that were committed by the
individual before or after the denial of the individual's previous
application, including those that formed the basis for the denial.
Last updated August 2, 2021 at 9:29 AM
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