West Virginia Code of State Rules › Agency 29 - Speech-Language Pathology And Audiology › Title 29 - LEGISLATIVE RULE WEST VIRGINIA BOARD OF EXAMINERS FOR SPEECH-LANGUAGE PATHOLOGY AND AUDIOLOGY › Series 29-03 - Contested Case Hearing Procedure › Section 29-3-3 - Hearing Procedure

Current through Register Vol. XLI, No. 28, July 12, 2024
3.1.
				Any applicant denied a license or any licensee who has had their license
				suspended by the Board who believes such denial was in violation of WVCode
				§§
									30-1-1 et seq. and/or 30-32-1 et
				seq. shall be entitled to a hearing on the action denying or suspending 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 chair of the Board or his or
				her authorized designee is presented with such a demand for a hearing, a
				hearing shall be scheduled within forty-five (45) days of receipt by the Board
				of such written demand, unless postponed to a later date by mutual
				agreement.
3.4. Charges may be
				instituted against any licensee by the Board when probable cause exists for
				believing that the licensee 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 WVCode
				§30-32et 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 speech-language pathology
				and audiology. Such Complaint and Notice of Hearing shall designate the Board
				as the "Complainant", and shall designate the licensee 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.
3.6. Upon receipt of a demand for a hearing
				described in subsections 3.1 and 3.2 of this section, the chair 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 speech-language pathology and audiology. 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
				or permit with sufficient particularity to reasonably apprise the demanding
				party of the nature, time and place of the conduct or condition at issue
				therein; and shall state the date, time and place for the hearing.
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:
3.10.1. 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.
3.10.2. The Board shall be represented by the
				West Virginia Attorney General's Office.
3.10.3. 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 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
.
3.10.4. The rules of privilege recognized by
				the law of this state shall be followed.
3.10.5. 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.
3.10.6. 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, 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.
3.10.7. 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 any other
				person found there who is a member of his or her family and above the age of
				sixteen (16) years; or if any such person cannot 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 be served by registered
				or certified mail.
3.10.8. The
				hearing shall be open to the general public.
3.10.9. Members of the Board and its
				officers, agents ant 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.
3.10.10. The hearing
				shall be conducted by a quorum of the Board.
3.10.11. 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 Boards' files. Upon request, a copy of the transcript
				shall be furnished to any party at his or her expense.
3.10.12. Documentary evidence may be received
				in the form of copies or excerpts or by incorporation by reference.
3.10.13. Where a hearing is held upon the
				instance of the Board after charges have been brought against a licensee
				pursuant to subsection 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.
3.10.14. Where a
				hearing is held upon demand under the provisions of subsections 3.1, 3.2, 3.3,
				and 3.6 of this action, the demanding party shall have the burden of proof and
				shall therefore be required to present his or her evidence first. The Board may
				require the person demanding the hearing to give security for the costs thereof
				and if the demanding party does not substantially prevail, such facts may be
				assessed against them and may be collected in a civil action or by other proper
				remedy.
3.10.15. Following the
				conclusion of the Board's presentation of evidence in accordance with
				subsection 3.10.13 of this section the Respondent or charged party shall have
				the right to submit his or her evidence in defense.
3.10.16. Following the conclusion of the
				demanding party's presentation of evidence in accordance with subsection
				3.10.14 of this section, the Board shall have the right to offer its evidence
				in rebuttal.
3.10.17. 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 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.
3.10.18. All parties
				shall have the right to offer opening and closing arguments, not to exceed ten
				(10) minutes for each presentation.
3.10.19. Hearings held by the Board as a
				result of charges instituted against a licensee may be continued or adjourned
				to a later date or different place by the Board or its designee by appropriate
				notice to all parties.
3.10.20.
				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. Motions for continuance filed prior to the date of hearing shall be
				ruled on by the chair or executive secretary of the Board. All other motions
				for continuance shall be ruled on by the Board member(s) or the member
				presiding over the hearing.
3.10.21. 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 an 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.