Current through Register Vol. XLI, No. 38, September 20, 2024
3.1. Any
person denied a license by the Board who believes such denial was in violation
of W. Va. Code ''30-1-1 et seq. and/or
30-16-1
et seq. shall be entitled to a hearing on the action denying such
license.
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 chiropractor by the Board when reasonable cause exists
for believing that the chiropractor 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 '30-16-1 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 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 chiropractic medicine. Such Complaint and
Notice of Hearing shall designate the Board as the "Complainant", and shall
designate the chiropractor 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 subsections 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 registered professional nursing. 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.
3.7. The Board may amend the charges set
forth in a Complaint and Notice of Hearing as it deems proper.
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:
a. 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.
b. The Board may be represented by the West
Virginia Attorney General's office.
c. 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.
d. The rules of privilege
recognized by the law of this State shall be followed.
e. 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.
f. 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.
g. 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 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 successive weeks in a newspaper published in this State; or
such notice may by served by registered or certified mail.
h. The hearing shall be open to the general
public.
i. 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.
j. The hearing may be
conducted by one or more Board members or by a hearing examiner appointed by
the Board.
k. 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.
l. Documentary evidence
may be received in the form of copies or excerpts or by incorporation by
reference.
m. 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.
n.
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.
o. Following the conclusion
of the Board's presentation of evidence in accordance with subsection 3.10.(m)
of this section, the Respondent or charged party shall have the right to submit
his or her evidence in defense.
p.
Following the conclusion of the demanding party's presentation of evidence in
accordance with subsection 3.10.(n) of this section, the Board shall have the
right to submit its evidence in defense.
q. 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.
r. All parties shall have the right to offer
opening and closing arguments, not to exceed ten (10) minutes for each
presentation.
s. 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.
t. 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.
u. 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 from the
non-moving party and shall rule on such motions accordingly.
