Ohio Administrative Code › Title 3701 - Department of Health - Administration and Director › Chapter 3701-61 - Nursing Home Residents' Rights on Transfer or Discharge; Employee Background Checks › Section 3701-61-04 - Written decision, impartial hearing and appeal

Current through all regulations passed and filed through July 1, 2024
(A) Upon receiving a request pursuant to
			 section 3721.161 of the Revised Code and
			 paragraph (E) of rule
			 3701-61-03 of the Administrative
			 Code, the department of health is obligated to conduct hearings under this rule in
			 accordance with 42 C.F.R.
			 431, subpart E ( January 20,
			 2017), to determine whether the proposed transfer or discharge complies
			 with division (A)(30) of section
			 3721.13 of the Revised Code and
			 paragraphs (A)(1) to (A)(7) of rule
			 3701-61-02 of the Administrative
			 Code.
(B) The department
			 is obligated
			 to employ or contract with an attorney to serve as a hearing officer. The
			 hearing officer will conduct a hearing in the home. The date and time
			 of the hearing will be determined by the hearing officer,
			 and
			 will be conducted no later than ten days
			 after the date the department receives a request pursuant to section
			 3721.161 of the Revised Code and
			 paragraph (E) of rule
			 3701-61-03 of the Administrative
			 Code, unless the home and the resident or, if the resident is not competent to
			 make a decision, the home and the resident's sponsor, agree otherwise. The
			 hearing will be recorded , but neither the recording nor a transcript of the recording
			 will be
			 part of the official record of the hearing. A hearing conducted under this rule
			 is not subject to section
			 121.22 of the Revised
			 Code.
(C) Notice of the date, time,
			 and place of the hearing will be sent by electronic
			 mail and certified mail to the administrator, resident, and any sponsor.
			 This notice will
								inform
			 the administrator, resident, and any sponsor that they have a right to appear
			 at the hearing in person or by their attorneys or other representatives. No
			 scheduled hearings may be postponed except by agreement of both
			 parties.
(D) The administrator
			 will
			 have the opportunity to present to the hearing officer any oral testimony or
			 written materials to show by a preponderance of the evidence just cause why the
			 proposed transfer or discharge complies with division (A)(30) of section
			 3721.13 of the Revised Code and
			 paragraphs (A)(1) to (A)(7) of rule
			 3701-61-02 of the Administrative
			 Code. The resident and any sponsor will also
			 
								be
			 provided an opportunity to present to the hearing officer any oral
			 testimony or written material to show just cause why the transfer or discharge
			 does not comply with division (A)(30) of section
			 3721.13 of the Revised Code and
			 paragraphs (A)(1) to (A)(7) of rule
			 3701-61-02 of the Administrative
			 Code. The hearing officer, administrator, resident, any sponsor and any
			 representatives of the foregoing may ask questions of any person participating
			 in the hearing. The hearing will be informal in nature but all parties
			 
								are obligated
			 to respect directives of the hearing officer for the orderly conduct of
			 the hearing. The evidence is obligated to be presented under oath.
(E) Unless the parties otherwise agree, the
			 hearing officer is obligated to issue a decision within five days of
			 the date the hearing concludes. In all cases, a decision
			 is obligated
			 to be issued not later than thirty days after the department receives a
			 request pursuant to section
			 3721.161 of the Revised Code and
			 paragraph (E) of rule
			 3701-61-03 of the Administrative
			 Code.
(F) A resident, resident's
			 sponsor or home may appeal the decision of the department to the court of
			 common pleas pursuant to section
			 119.12 of the Revised Code. The
			 appeal is
								 governed by
			 section 119.12 of the Revised Code,
			 except for all of the following:
(1) A
			 resident, resident's sponsor or home 
									files the appeal in the court of
			 common pleas of the county in which the home is located.
(2) The resident or resident's sponsor
			 
									applies to the court for designation as an indigent
			 and, if the court grants the application, the resident or resident's sponsor
			 will not
			 be 
									obligated to furnish the costs of the
			 appeal.
(3) The appeal
			 is
			 filed with the department and the court within thirty days after the hearing
			 officer's decision is served. The appealing party is obligated to
			 serve the opposing party a copy of the notice of appeal by hand delivery or
			 certified mail, return receipt requested and electronic
			 mail. If the home is the appealing party, it is obligated to
			 provide a copy of the notice of appeal to the resident and the resident's
			 sponsor or attorney, if known.
(4)
			 The department will not file a transcript of the hearing with the
			 court unless the court orders it to do so. The court is obligated to
			 issue such an order only if it finds that the parties are unable to stipulate
			 to the facts of the case and that the transcript is essential to the
			 determination of the appeal. If the court orders the department to file the
			 transcript, the department is obligated to do so not later than thirty days
			  after the day the court issues
			 the order.