Current through Register Vol. XLI, No. 42, October 18, 2024
Section 13-2-7 - Hearing Procedure7.1. Any licensee or limited permit holder who has had their license suspended by the Board pursuant to section 6 of this rule shall be entitled to a hearing on the action suspending such license within sixty (60) days of such suspension.7.2. Any charged party who desires a hearing must present a written demand for such to the Board within thirty (30) days of receipt of decision by the Board.7.3. When the chair 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 sixty (60) days of receipt of such written demand, unless postponed to a later date by mutual written agreement.7.4. Charges may be instituted against any licensee, limited permit holder or applicant by the Board when probable cause exists for believing that the licensee, limited permit holder or applicant may have engaged in conduct, practices or acts 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 § 30-28-16 et seq. or the Board's legislative rules. Charges may be based upon information received by way of a 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 any investigative activities undertaken by the Board.7.5. Charges instituted against a licensee, limited permit holder or applicant 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 occupational therapy. Such Complaint and Notice of Hearing shall designate the Board as the "Complainant", and shall designate the charged party 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; and shall state the date, time and place for the hearing.7.6. The Board may amend the charges set forth in a Complaint and Notice of Hearing as it deems proper.7.7. 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.7.8. Hearings shall be conducted as follows:7.8.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.7.8.b. The Board shall be represented by the West Virginia Attorney General's Office.7.8.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.7.8.d. The rules of privilege recognized by the law of this state shall be followed.7.8.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.7.8.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 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 a permit.7.8.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 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 successive weeks in a newspaper published in this state; or such notice may by served by registered or certified mail.7.8.h. The hearing shall be open to the general public.7.8.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 testified.7.8.j. The hearing shall be conducted by a quorum of the Board or the Board may elect to have an administrative law judge conduct the hearing.7.8.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.7.8.l. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.7.8.m. Where a hearing is held upon the instance of the Board after charges have been brought against a licensee pursuant to subsection 7.4 and 7.5 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.7.8.n. Following the conclusion of the Board's presentation of evidence in accordance with subsection 7.8.m. of this section the respondent or charged party shall have the right to submit his or her evidence in defense.7.8.o. Following the conclusion of the charged party's presentation of evidence, the Board shall have the right to offer its evidence in rebuttal.7.8.p. The Board may call witnesses to testify in support of its decision to deny licensure to deny a permit or in support of the charges instituted against a licensee, limited permit holder or applicant; may present such other evidence to support its position; and, may cross-examine witnesses called by the charged party in support of his or her position.7.8.q. All parties shall have the right to offer opening and closing arguments, not to exceed ten (10) minutes for each presentation.7.8.r. Hearings held by the Board as a result of charges instituted against a licensee, limited permit holder or applicant may be continued or adjourned to a later date or different place by the Board or its designee by appropriate notice to all parties.7.8.s. 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 before 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 hearing date may be denied unless the reason for the motion could not have been ascertained earlier. All motions for continuance filed prior to the date of hearing shall be ruled on by the Board chairperson or executive secretary of the Board.7.8.t. All motions related to a case set for hearing before the Board, except motions for continuance, which rules set forth in subsection 7.8.s. of this section must be followed, 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) presiding at the hearing shall hear the motions and the response from the non-moving party and shall rule on such motions accordingly.