Current through Register Vol. XLI, No. 38, September 20, 2024
3.1. Any
person denied a license or who has had their license/training permit suspended,
restricted, or revoked by order of the Board and who believes such order was in
violation of W. Va. Code §§
30-1-1 et
seq. and/or
30-36-1
et seq. shall be entitled to a hearing on the action.
3.2. Any person who desires a hearing for the
reason described in subsection 3.1 of this section must present a written
demand for such to the Board.
3.3.
When the president of the Board or his or her authorized designee is presented
with such a demand for a hearing, 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.
3.4. Charges may be instituted against any
licensed acupuncturist, student acupuncturist and acupuncture trainee by the
Board when reasonable cause exists for believing that he or she may have
engaged in conduct or be in such condition that his or her license should be
suspended, revoked or otherwise disciplined for one or more of the grounds set
forth in W. Va. Code § 30-36-1 et seq. or the Board's legislative rules.
Charges may be based upon information received by way of a verified written
complaint filed with the Board and further information gathered by the Board in
the process of investigating such complaint. Charges may also be based upon
information received solely through investigative activities undertaken by the
Board.
3.5. Charges instituted
against a licensee or trainee as described in subsection 3.4 of this section
shall be set forth in a Complaint and Notice of Hearing issued in the name of
the Board as the agency of the State regulating the practice of acupuncture and
oriental medicine. Such Complaint and Notice of Hearing shall designate the
Board as the "Complainant," and shall designate the licensed acupuncturist,
student acupuncturist and acupuncture trainee involved in the proceeding as the
"Respondent"; 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; shall state
the date, time and place for the hearing; and, shall contain a statement of
intention by the Board to appoint a hearing examiner.
3.6. Upon receipt of a demand for a hearing
described in subsection 3.1 and 3.2 of this section, the president or his or
her designee shall provide the demanding party with a Complaint and Notice of
Hearing issued in the name of the Board as the agency of the State regulating
the practice of acupuncture and oriental medicine. Such Complaint and Notice of
Hearing shall designate the demanding party as the "Complainant" and shall
designate the Board as the "Respondent"; shall set out the substance of each
and every reason that the Board has denied the demanding party a license with
sufficient particularity to reasonably apprise the demanding party of the
nature, time and place of the conduct or condition at issue therein; shall
state the date, time and place for the hearing; and shall contain a statement
of intention by the Board to appoint a hearing examiner.
3.8. A Complaint and Notice of Hearing shall
be served upon the demanding or charged party at least thirty (30) days prior
to the date of hearing.
3.9. Upon
written motion received by the Board no later than twenty (20) days prior to
the date of hearing, a more definite statement of the matters charged or the
reasons stated for denial of licensure shall be provided to the demanding or
charged party or his or her counsel, at least fifteen (15) days prior to the
hearing date.
3.10. Hearings shall
be conducted as follows:
3.10.1. Any party to
a hearing shall have the right to be represented by an attorney-at-law, duly
qualified to practice law in the State of West Virginia.
3.10.2. The Board may be represented by the
West Virginia Attorney General's Office.
3.10.3. Irrelevant, immaterial, or unduly
repetitious evidence shall be excluded from the hearing. Furthermore, the rules
of evidence as applied in civil cases in the circuit courts of this State shall
be followed. However, when necessary to ascertain facts not reasonably
susceptible of proof under those rules, evidence not admissible thereunder may
be admitted, except where precluded by statute, if it is of a type commonly
relied upon by reasonably prudent persons in the conduct of their
affairs.
3.10.4. The rules of
privilege recognized by the law of this State shall be followed.
3.10.5. Objections to evidentiary offers
shall be noted in the record. Any party to the hearing may vouch the record as
to any excluded testimony or other evidence.
3.10.6. Any party to a hearing may appear
with witnesses to testify on his or her behalf; may be heard in person, by
counsel or both; may present such other evidence in support of his or her
position as deemed appropriate by the Board or its designated hearing examiner;
and, when appropriate, may cross-examine witnesses called by the Board in
support of the charges or in defense of its decision to deny licensure or
educational training permit.
3.10.7. 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 charged or demanding party and/or his or her attorney in
person; or if he or she cannot be found, by delivering such notice at his or
her usual place of abode, and giving information of its purport, to his wife or
her husband, or to any other person found there who is a member of his or her
family and above the age of sixteen (16) years; or if neither his wife or her
husband nor any such person can be found there, and he or she cannot be found,
by leaving such notice posted at the front door of such place of abode; or if
he or she does not reside in this State, such notice may be served by the
publication thereof once a week for three (3) successive weeks in a newspaper
published in this State; or such notice may be served by registered or
certified mail.
3.10.8. The hearing
shall be open to the general public.
3.10.9. 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.
3.10.10. The hearing may
be conducted by one or more Board members or by a hearing examiner appointed by
the Board.
3.10.11. A record of the
hearing, including the complaint(s), if applicable, the notice of hearing, all
pleadings, motions, rulings, stipulations, exhibits, documentary evidence,
evidentiary depositions and the stenographic report of the hearing, shall be
made and a transcript thereof maintained in the Board's files. Upon request, a
copy of the transcript shall be furnished to any party at his or her
expense.
3.10.12. Documentary
evidence may be received in the form of copies or excerpts or by incorporation
by reference.
3.10.13. Where a
hearing is held upon the instance of the Board after charges have been brought
against a licensee pursuant to subsections 3.4 and 3.5 of this section, the
Board shall have the burden of proof and shall present its evidence and/or
testimony in support of the charges first.
3.10.14. Where a hearing is held upon demand
under the provisions of subsections 3.1, 3.2, 3.3, and 3.6 of this section, the
demanding party shall have the burden of proof and shall therefore be required
to present his or her evidence first. The Board may require the person
demanding the hearing to give security for the costs thereof and if the
demanding party does not substantially prevail, such facts may be assessed
against them and may be collected in a civil action by other proper
remedy.
3.10.15. Following the
conclusion of the Board's presentation of evidence in accordance with
subsection 3.10.13 of this section, the Respondent or charged party shall have
the right to submit his or her evidence in defense.
3.10.16. Following the conclusion of the
demanding party's presentation of evidence in accordance with subsection
3.10.14 of this section, the Board shall have the right to submit its evidence
in defense.
3.10.17. The Board may
call witnesses to testify in support of its decision to deny licensure or in
support of the charges instituted against a licensee; may present such other
evidence to support its position; and, may cross-examine witnesses called by
the demanding party or charged party in support of his or her
position.
3.10.18. All parties
shall have the right to offer opening and closing arguments, not to exceed ten
(10) minutes for each presentation.
3.10.19. Hearings held by the Board as a
result of charges instituted against a licensee may be continued or adjourned
to a later date or a different place by the Board or its designee by
appropriate notice to all parties.
3.10.20. Motions for a continuance of a
hearing may be granted upon a showing of good cause. Motions for continuance
must be in writing and received in the office of the Board no later than seven
(7) days prior to the hearing date. In determining whether good cause exists,
consideration will be given to the ability of the party requesting the
continuance to proceed effectively without a continuance. A motion for a
continuance filed less than seven (7) days from the date of hearing shall be
denied unless the reason for the motion could not have been ascertained
earlier. Motions for continuance filed prior to the date of hearing may be
ruled on by the Executive Secretary or Assistant Executive Secretary of the
Board or designated hearing examiner. All other motions for continuance shall
be ruled on by the Board member(s) or the hearing examiner presiding over the
hearing.
3.10.21. All motions
related to a case set for hearing before the Board, except motions for
continuance and those made during the hearing, shall be in writing and shall be
received in the office of the Board at least ten (10) days before the hearing.
Prehearing motions shall be heard at a prehearing conference or at the hearing
prior to the commencement of testimony. The Board member(s) or the hearing
examiner presiding at the hearing shall hear the motions and the response for
the non-moving party and shall rule on such motions accordingly.
