Current through Register Vol. XLI, No. 52, December 27, 2024
11.1. Any party who
demands a hearing to have determined any constitutional rights, legal rights,
duties, interests or privileges of specific parties as required by law shall
specify in writing the grounds relied upon as basis for the relief
requested.
11.2. When the President
or his or her authorized designee is presented with a demand for a hearing as
described in Subsection 11.1 of this section, he or she shall schedule a
hearing within forty-five (45) days of receipt by him or her of such written
demand, unless postponed to a later date by mutual agreement. However, if the
President or his or her designee shall determine that the hearing demanded
would either involve an exercise of authority in excess of that available to
him or her under law, or would serve no useful purpose, the President shall,
within forty-five (45) days of receipt of such demand, enter an order refusing
to grant the hearing as requested, incorporating therein the reason(s) for such
refusal. Appeal may be taken from such order as provided in W. Va. Code §
29A-5-4.
11.3. Charges may be instituted in a
complaint against any physician, podiatrist, or physician assistant by the
Board and shall be noted in the official minutes of the Board. Charges may be
based upon information indicating that there is probable cause for believing
that said physician, podiatrist, or physician assistant may have engaged in
such conduct or be in such condition that his or her license may be disciplined
for one or more grounds set forth in the Medical Practice Act or its
implementing rules.
11.4. Upon the
receipt of a demand for a hearing as described in Subsection 11.1 of this
section, or where a hearing is otherwise required, the President or his or her
designee shall as soon thereafter as possible provide the party making such
demand and the party charged with a violation of licensing provisions of the
law or rules promulgated by the Board, with a notice of hearing (assuming the
President has not entered an order denying a hearing as provided in Subsection
11.2 of this section.) Said notice shall be served upon the respondent at least
thirty (30) days prior to the hearing date. Said notice shall contain the
following information:
11.4.a. The date, time
and place of the hearing;
11.4.b. A
short plain statement of the matters asserted or charged, as set forth in the
complaint; and
11.4.c. A statement
of intention to appoint a hearing examiner.
Where charges are instituted, the complaint shall be issued
in the name of the Board as an agency of the state and designate the Board as
"Petitioner" and shall designate the physician, podiatrist, or physician
assistant being proceeded against as "Respondent." The petitioner shall set out
the substance of each offense charged with sufficient particularity to
reasonably apprise the respondent of the nature, time and place of the conduct
or condition complained of therein. The Board may amend the complaint as it
deems proper.
Upon proper motion, a more definite statement of the matters
asserted or charged shall be provided to the respondent or his or her counsel,
at least fifteen (15) days prior to the hearing date.
11.5. Hearings shall be conducted
as follows:
11.5.a. Any party to a hearing
shall have the right to be represented by an attorney-at-law, duly qualified to
practice in the State of West Virginia.
11.5.b. The Board may be represented by the
Office of the Attorney General.
11.5.c. The rules of evidence as applied in
civil cases in the circuit courts of this State shall be followed.
11.5.d. Hearings conducted by the Board or by
a hearing examiner appointed by the Board, upon a complaint issued by the
Board, are a continuance of the investigation designed to enable the Board to
properly discharge its administrative functions and authority. The purpose of
such hearing is to afford the respondent an opportunity, in person or by
counsel or other representative, to respond to the complaint, to present his or
her position, to present evidence in support of his or her contention, to
examine and cross-examine evidence and witnesses produced in support of the
complaint and to argue orally at the hearing.
11.5.e. The hearing shall be held at such
time and place as is designated by the Board, but no hearing shall be conducted
unless and until at least thirty (30) days' written notice thereof has been
served upon the respondent in person or by registered or certified
mail.
11.5.f. The hearing shall be
open to the general public.
11.5.g.
The purpose of the hearing shall be to further inquire into the matters set
forth in the complaint or any amended complaint, and to record evidence and
arguments in support of same and in opposition thereto, so that the Board may
determine all issues. Members of the Board and its officers, agents and
employees shall be competent to testify at the hearing, as to material and
relevant matters: Provided, That no member of the Board who testifies at such
hearing shall thereafter participate in the deliberations or decisions of the
Board with respect to the case in which he or she so testified.
11.5.h. The hearing may be conducted by a
Board member, or by a hearing examiner appointed by the Board.
11.5.i. A record of the hearing (including
the complaint and amended complaint, the notice of hearing, all pleadings,
motions, rulings, stipulations, exhibits, documentary evidence, evidentiary
depositions and the stenographic report of the hearing) shall be prepared under
the supervision of the Board, if the hearing is conducted by it, or by a
hearing examiner who conducts the hearing on behalf of the Board.
11.5.j. Documentary evidence may be received
in the form of copies or excerpts or by incorporation by reference.
11.5.k. Initially, the Board shall be given
an opportunity to present evidence, including testimony, papers, electronic and
other records, agency staff memoranda and documents in the possession of the
Board, in support of its position, except where a hearing has been demanded
under the provisions of subsection 11.1 of this section, in which case
initially the party demanding the hearing shall present his or her
evidence.
11.5.l. Every party shall
have the right of cross-examination of witnesses who testify, and following the
conclusion of the Board's presentation, shall have the right to submit rebuttal
evidence.
11.5.m. The Board shall
have the right to cross-examine witnesses providing rebuttal testimony and
shall have the right to submit rebuttal evidence.
11.5.n. Following the presentation of all
evidence, every party, including the Board, shall have the right to offer
argument, not to exceed ten (10) minutes for each presentation.
11.5.o. The state or local organization which
represents the profession to which the respondent belongs may seek to intervene
in any hearing for the purpose of assisting in the prosecution of the
complaint, or may, with the consent of the respondent, seek to intervene for
the purpose of assisting the respondent in contesting the complaint.
11.5.p. Hearing examiners are not authorized
or empowered to suspend or revoke any license or to place any licensee on
probation or to discipline any licensee. The function of a hearing examiner is
to preside at the hearing and to cause to be prepared a record of the hearing,
as described above, so that the Board is able to discharge its functions. The
hearing examiner shall prepare recommended findings of fact and conclusions of
law for submission to the Board.
11.5.q. Summons and subpoenas may be issued
by the President or Secretary of the Board and by hearing examiners appointed
by the Board.
11.5.r. The Board or
its hearing examiner may institute proceedings in circuit courts to punish
persons for contemptuous or contumacious conduct directed to the Board or to
its hearing examiner in the course of hearings.
11.5.s. The respondent shall serve his or her
answer within thirty (30) days after service of the complaint upon him or her.
Upon failure of the respondent to respond to the complaint as required herein,
all of the allegations set out therein as to conduct or conditions of the
respondent may be taken by the Board as confessed by the respondent.
11.6. Hearings may be continued
from one day to another, or adjourned to a later date or a different place, by
announcement thereof or by appropriate notice to all parties.
A continuance may be granted by the President or his or her
designee for good cause shown. A written notice of a continuance shall be filed
at least five (5) days prior to the hearing date.
