West Virginia Code of State Rules › Agency 19 - Registered Nurses, WV Board of › Title 19 - PROCEDURAL RULES WEST VIRGINIA BOARD OF EXAMINERS FOR REGISTERED PROFESSIONAL NURSES › Series 19-05 - Contested Case Hearing Procedure › Section 19-5-3 - 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
				30-7-1 et seq. shall be entitled
				to a hearing on the action denying 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 president 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
				forty-five (45) days 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 registered professional nurse by the Board when reasonable cause
				exists for believing that the nurse 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 §
									30-7-1 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 registered professional nursing. Such
				Complaint and Notice of Hearing shall designate the Board as the "Complainant",
				and shall designate the licensed registered professional nurse 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;
				shall state the date, time and place for the hearing; and, shall contain a
				statement of intention by the Board to appoint a hearing examiner.
3.6. Upon receipt of a demand for a hearing
				described in subsections 3.1 and 3.2 of this section, the president 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 registered professional nursing. 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 with
				sufficient particularity to reasonably apprise the demanding party of the
				nature, time and place of the conduct or condition at issue therein; shall
				state the date, time and place for the hearing; and, shall contain a statement
				of intention by the Board to appoint a hearing examiner.
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 may 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 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.
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 or its designated hearing examiner;
				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.
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 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.
3.10.8. The
				hearing shall be open to the general public.
3.10.9. 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 so
				testified.
3.10.10. The hearing may
				be conducted by one or more Board members or by a hearing examiner appointed by
				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 Board's 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 section, the
				demanding party shall have the burden of proof and shall therefore be required
				to present his or her evidence first.
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 submit its evidence in defense.
3.10.17. 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.
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 a 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 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 shall be
				ruled on by the Executive Secretary or Assistant Executive Secretary of the
				Board. All other motions for continuance shall be ruled on by the Board
				member(s) or the hearing examiner 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 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) 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.