358-5.6 Hearing officer.
(a) The hearing shall be conducted by an impartial hearing officer
assigned by OAH to conduct the hearing, who has not been involved in any way with the
action in question.
(b) To ensure a complete record at the hearing, the hearing officer
must:
(1) preside over the fair hearing and regulate
the conduct and course of the fair hearing, including at the hearing officer's discretion,
requiring sworn testimony, and administering the necessary oaths; and
(2) make an opening statement explaining the
nature of the proceeding, the issues to be heard and the manner in which the fair hearing
will be conducted; and
(3) elicit documents and testimony, including
questioning the parties and witnesses, if necessary, particularly where the appellant
demonstrates difficulty or inability to question a witness; however, the hearing officer
will not act as a party's representative; and
(4) where the hearing officer considers
independent medical assessment necessary, require that an independent medical assessment
be made part of the record when the fair hearing involves medical issues such as a
diagnosis, an examining physician's report, or a medical review team's decision; and
(5) adjourn the fair hearing to another time on
the hearing officer's own motion or on the request of either party, to the extent
allowable by section 358-5.3 of this Part; and
(6) adjourn the fair hearing when in the
judgment of the hearing officer it would be prejudicial to the due process rights of the
parties to go forward with the hearing on the scheduled hearing date; and
(7) review and evaluate the evidence, rule on
the admissibility of evidence, determine the credibility of witnesses, make findings of
fact relevant to the issues of the hearing which will be binding upon the Commissioner
unless such person has read a complete transcript of the hearing or has listened to the
electronic recording of the fair hearing; and
(8) at the hearing officer's discretion, where
necessary to develop a complete evidentiary record, issue subpoenas, and/or require the
attendance of witnesses and the production of books and records; and
(9) prepare an official report containing the
substance of what transpired at the fair hearing and including a recommended decision to
the Commissioner or the commissioner's designee.
(c) A party to a hearing may make a request to a hearing officer that
the hearing officer remove himself or herself from presiding at the hearing.
(1) The grounds for removing a hearing officer
are that such hearing officer has:
(i) previously dealt in
any way with the substance of the matter which is the subject of the hearing except in the
capacity of hearing officer; or
(ii) any interest in
the matter, financial or otherwise, direct or indirect, which will impair the independent
judgment of the hearing officer; or
(iii) displayed bias or
partiality to any party to the hearing.
(2) The hearing officer may independently
determine to remove himself or herself from presiding at a hearing on the grounds set
forth in paragraph (1) of this subdivision.
(3) The request for removal made by a party
must:
(i) be made in good
faith; and
(ii) be made at the
hearing in writing or orally on the record; and
(iii) describe in
detail the grounds for requesting that the hearing officer be removed.
(4) Upon receipt of a request for removal, the
hearing officer must determine on the record whether to remove himself or herself from the
hearing.
(5) If the hearing officer determines not to
remove himself or herself from presiding at the hearing, the hearing officer must advise
the party requesting removal that the hearing will continue but the request for removal
will automatically be reviewed by the general counsel of ODTA or the general counsel's
designee.
(6) The determination of the hearing officer
not to remove himself or herself will be reviewed by the general counsel of ODTA or the
general counsel's designee. Such review will include review of written documents submitted
by the parties and the transcript of the hearing.
(7) The general counsel of ODTA or the general
counsel's designee must issue a written determination of whether the hearing officer
should be removed from presiding at the hearing within 15 business days of the close of
the hearing.
(8) The written determination of the general
counsel or the general counsel's designee will be made part of the record.