West Virginia Code of State Rules › Agency 13 - Occupational Therapy › Title 13 - LEGISLATIVE RULE BOARD OF OCCUPATIONAL THERAPY › Series 13-02 - Disciplinary, Complaint and Contested Case Hearing Procedures for Occupational Therapists and Occupational Therapy Assistants › Section 13-2-7 - Hearing Procedure

Current through Register Vol. XLI, No. 28, July 12, 2024
7.1.  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.