West Virginia Code of State Rules › Agency 16 - Physical Therapy › Title 16 - LEGISLATIVE RULE WV BOARD OF PHYSICAL THERAPY › Series 16-07 - Contested Case Hearing Procedure For Athletic Trainers › Section 16-7-5 - Hearing Procedure

Current through Register Vol. XLI, No. 28, July 12, 2024
5.1.
				Any applicant denied a registration or any Registrant who has had their
				registration suspended by the Board who believes that such action was in
				violation of W. Va. Code § 30-20A-1, et. seq. will be entitled to a
				hearing on the action denying or suspending lacking such
				registration.
5.2. Any person who
				desires a hearing for the reason described in subsection 5.1. of this section
				must present a written demand for a hearing to the Board.
5.3. The Board may require the person
				demanding the hearing to give security for the costs of the hearing and if the
				demanding party does not substantially prevail, such costs may be assessed
				against them and may be collected in a civil action or by other proper
				remedy.
5.4. When the Chair of the
				Board or his/her authorized designee is presented with a demand for a hearing,
				he or she will schedule a hearing within sixty (60) days of receipt of the
				written demand. The hearing may be postponed to a later date by mutual
				agreement.
5.5. Charges may be
				instituted against any Registrant by the Board when probable cause exists for
				believing that the Registrant may have engaged in conduct, practices, or acts
				for which his or her registration should be suspended, revoked or otherwise
				disciplined for one or more of the grounds as set forth in W. Va. Code
				§§ 30-20A-5 et seq. or 30-20A-7. Charges may be based upon
				information received by way of a written complaint filed with the Board; and/or
				any information gathered by the Board in the process of investigating a
				complaint. Charges may also be based upon information received solely through
				investigative activities undertaken by the Board.
5.6. Allegations instituted against a
				Registrant must be set forth in a Complaint and Notice of Hearing by the Board
				as the Agency of the State regulating the practice of Athletic Trainer. The
				Complaint and Notice of Hearing must designate the Board as the "Complainant",
				and will designate the Registrant involved in the proceeding as the
				"Respondent". The Complaint and Hearing Notice must state the substance of each
				offense with sufficient details in order to reasonably apprize the Respondent
				of the nature, date and place of the conduct or condition complained of
				therein. It must also state the date, time and place for the hearing.
5.7. Upon receipt of a demand for a hearing
				described in subsections 5.1 and 5.2 of this section, the Chair or his or her
				designee will 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 Athletic Trainer. Such Complaint and Notice of Hearing shall
				designate the demanding party as the "Complainant" and will designate the Board
				as the "Respondent"; will set out the substance of each and every reason that
				the Board has denied the demanding party a registration with sufficient
				particularity to reasonably apprize the demanding party of the nature, date and
				place of the conduct or condition at issue therein. It must also state the
				date, time and place for the hearing.
5.8. A Complaint and Notice of Hearing must
				be served upon the demanding or charged party at least thirty (30) days prior
				to the date of the hearing.
5.9.
				Hearings shall be conducted as follows:
5.9.a.
				Any party to a hearing has the right to be represented by an attorney-at-law,
				duly qualified to practice law in the State of West Virginia.
5.9.b. The Board will be represented by the
				West Virginia Attorney General's Office.
5.9.c. Irrelevant, immaterial, or unduly
				repetitious evidence will 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 there under 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.
5.9.d. The rules of
				privilege recognized by the law of this State shall be followed.
5.9.e. Objections to evidentiary offers will
				be noted in the record. Any party to the hearing may vouch the record as to any
				excluded testimony or other evidence.
5.9.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 registration.
5.9.g. The hearing will be held at such time
				and place designated by the Board, but no hearing will be conducted unless at
				least thirty (30) days written notice of the hearing 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 to 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 publication thereof once
				a week for three successive weeks in a newspaper published in this State; or
				such notice may be served by registered or certified mail.
5.9.h. Members of the Board and its officers,
				agents and employees are 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.
5.9.i. The hearing will be conducted by a
				quorum of the Board.
5.9.j. A
				record of the hearing, including the complaint(s), and if applicable, the
				notice of hearing, all pleadings, motions, rulings, stipulations, exhibits,
				documentary evidence, evidentiary depositions and the stenographic report of
				the hearing, will be made and a transcript thereof maintained in the Board's
				files. Upon request, a copy of the transcript will be furnished to any party at
				his or her expense.
5.9.k. Any
				documentary evidence resulting from an investigation or sworn statements may be
				received in the form of copies or excerpts of by incorporation by
				reference.
5.9.l. The Board after
				charges have been brought against a Registrant has the burden of proof in
				substantiating the charges and must present its evidence and/or testimony in
				support of the charges first.
5.9.m. Where a hearing is held upon demand
				under the provisions of subsections 5.1., 5.2., 5.3., and 5.7. of this action,
				the demanding party has the burden of proof and will, therefore, be required to
				present his or her evidence first.
5.9.n. Following the conclusion of the
				Board's presentation of evidence, the Respondent or charged party has the right
				to submit his or her evidence in defense.
5.9.o. Following the conclusion of the
				demanding party's presentation of evidence in accordance with subsection 5.9.m.
				of this section, the Board has the right to offer its evidence in
				rebuttal.
5.9.p. The Board may call
				witnesses to testify in support of its decision to deny registration or in
				support of the charges instituted against a Registrant; 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.
5.9.q. All parties have
				the right to offer opening and closing arguments, not to exceed ten (10)
				minutes for each presentation, unless otherwise lengthened by the
				Board.
5.9.r. Hearings held by the
				Board as a result of charges instituted against a Registrant may be continued
				or adjourned to a later date or different place by the Board or its designee by
				appropriate notice to all parties.
5.9.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 or 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.
				Motions for continuance filed prior the date of the hearing will be ruled on by
				the Chair or Executive Secretary/Administrator of the Board. All other motions
				for continuance will be ruled on by the Board member(s) or the member presiding
				over the hearing.
5.9.t. All
				motions related to a case set for hearing before the Board, except motions for
				continuance and those made during the hearing, must be in writing and received
				in the office of the Board at least ten (10) days before the hearing.
				Prehearing motions will be heard at a prehearing conference or at the hearing
				prior to the commencement of testimony. The Board member(s) presiding at the
				hearing will hear the motions and responses from the non-moving party and rule
				on the motions.