West Virginia Code of State Rules › Agency 31 - Dietitians › Title 31 - LEGISLATIVE RULE WEST VIRGINIA BOARD OF LICENSED DIETITIANS › Series 31-03 - Contested Case Hearing Procedure › Section 31-3-3 - Hearing Procedures

Current through Register Vol. XLI, No. 28, July 12, 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
				30-35-1 et
				seq. shall be entitled to a hearing on the action denying the
				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 Chairperson 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 not less than ten (10) nor more the thirty (30)
				days thereafter 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 dietitian by the Board when reasonable cause exists for believing that
				the licensed dietitian 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 '30-35-1 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 dietetics. Such Complaint and Notice of
				Hearing shall designate the Board as "Complainant", and shall designate the
				licensed dietitian involved in the proceeding as the "Respondent"; shall set
				out the substance of each offense charged with sufficient particularity to
				reasonably apprize 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, may contain a statement of intention by the Board to appoint
				a hearing examiner.
3.6. The Board
				may amend the charges set forth in a Complaint and Notice of Hearing as it
				deems proper.
3.7. 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 the hearing.
3.8. 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.
3.9. 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 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, 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
				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) consecutive weeks in a newspaper published in this
				State; or such notice may be 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 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. Pre-hearing
				motions shall be heard at a pre-hearing 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.