West Virginia Code of State Rules
Agency 69 - Health And Human Resources
Title 69 - LEGISLATIVE RULE DEPARTMENT OF HEALTH AND HUMAN RESOURCES
Series 69-01 - Rules for Hearings Under the Administrative Procedures Act
Section 69-1-4 - Parties and Conduct of Hearings

4.1. At the hearing, an opportunity shall be afforded all parties to present evidence and argument with respect to the matters and issues involved. Any person interested in the proceeding, but not a party thereof, shall be permitted to testify as to the issues in controversy after first being placed under oath or affirmation. Any such interested person who is not a party, shall not, however, be permitted to submit argument or to cross-examine other witnesses. Argument may be restricted to a presentation in written form. All of the testimony and evidence at the hearing shall be reported by stenographic notes and characters or by mechanical or electronic means. All rulings on the admissibility of testimony and evidence shall also be reported. The secretary shall prepare an official record, that shall include reported testimony and exhibits in each contested case, and all agency staff memoranda and data used in consideration of the case, but it shall not be necessary to transcribe the reported testimony unless required for purposes of rehearing or judicial review. Upon request from any party to the hearing, all reported testimony and evidence at a hearing shall be transcribed, and a copy thereof furnished to the party at its expense. The secretary shall have the responsibility for making arrangements for the transcription of the reported testimony.

4.2. Evidentiary depositions may be taken and read as in civil actions in the circuit court of this state.

4.3. Except to the extent required by statute or by this rule, all hearings under this rule will be conducted in accordance with the current versions of the "Rules of Civil Procedure for Trial Courts of Record," "Trial Court Rules for Trial Courts of Record," and "Local Rules for Kanawha County Civil Courts" as those rules would apply to a trial court sitting without a jury.

4.4 All hearings shall be conducted in an impartial manner. All hearings and shall be open to members of the public except hearings arising under West Virginia Code § 49-2-105 and § 9-6-1 et seq. Decisions for all hearings held on or before May 17. 2015, and not subject to this rule shall be issued on or before July 1. 2015. The secretary and every hearing officer appointed by the secretary shall have the power to administer oaths and affirmations, certify official acts, take depositions, rule upon offers of proof and receive relevant evidence, regulate the course of the hearing, hold conferences for the settlement or simplification of the issues by consent of the parties, dispose of procedural requests, motions, or similar matters, and take such other actions as are authorized by this rule. The secretary and every hearing officer shall adopt appropriate measures to protect the confidentiality of patient information. Such measures may include, but shall not be limited to: deleting references to all patient identifying information in documents and testimony; referring to patients by a non-identifying designation (e.g.,"Patient A"); or hearing in camera any testimony which might require divulging patient identifying information.

4.5. During a hearing, irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The current "Rules of Evidence" as applied in civil cases by a court sitting without a jury 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 in their office. The hearing officer shall be bound by the rules of privilege recognized by law. Objections to evidentiary offers shall be noted in the record, but exceptions to rulings by the hearing officer shall not be made. Any party to any hearing may vouch the record as to any excluded testimony or other evidence provided that the hearing officer may elect to require that the excluded testimony be submitted in written form following the hearing.

4.6. All evidence, including papers, records, agency staff memoranda and documents in the possession of the secretary, of which he or she desires to avail himself or herself, shall be offered and made a part of the record in the case, and no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies of excerpts or by incorporation by reference.

4.7. Every party, as well as the secretary and his or her staff, shall have the right of cross-examination of witnesses who testify, and shall have the right to submit rebuttal evidence.

4.8. All witnesses who testify at a hearing shall first be subject to oath or affirmation and any testimony submitted by deposition shall show on the face thereof that the witness was so qualified.

4.9. The hearing officer may take notice of judicially cognizable facts. All parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed.