West Virginia Code of State Rules › Agency 194 - Massage Therapy Licensure Board › Title 194 - LEGISLATIVE RULE MASSAGE THERAPY LICENSURE BOARD › Series 194-02 - Hearing Procedures › Section 194-2-3 - Hearing Procedures

Current through Register Vol. XLI, No. 28, July 12, 2024
3.1. Any
				person denied a license by the Board who believes the denial was in violation
				of W. Va. Code '30-1-1 et
				seq and/or
				30-37-1
				et seq. shall be entitled to a hearing on the denial upon presenting a written
				demand for hearing to the Board.
3.2. When a written demand for hearing is
				received by the Board, the chair/chairperson of the Board or the
				chair/chairperson's authorized designee shall schedule a hearing within
				forty-five (45) days of receipt of the demand, unless postponed to a later date
				by mutual agreement of the demanding party and the chair/chairperson or
				chair/chairperson's designee.
3.3.
				The Board may institute charges against any licensee when cause exists for
				reasonable belief that the licensee to be charged has engaged in conduct or is
				in a condition that his or her massage therapy license should be suspended,
				revoked or be made subject to probationary conditions pursuant to grounds set
				forth in W. Va. Code '30-37-1 et seq. or the Board's legislative rules. Charges
				may be based upon a verified written complaint filed with the Board and
				information gathered pursuant to the Board's investigation of the complaint.
				Charges may also be based on information gained solely through investigation by
				the Board.
3.4. Charges initiated
				against a licensee as described in subsection 3.3 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 massage therapy. The
				complaint and notice of hearing shall designate the Board as "Complainant", and
				designate the licensee involved as the "Respondent"; shall state 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 which is
				the subject of the complaint; and, shall state the time, date and place of
				hearing.
3.5. Upon receipt of a
				demand for a hearing described in subsection 3.1 and 3.2 of this section, the
				Chair/Chairperson of the Board or the chair/chair­person's 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
				massage therapy. 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; and, shall state the date, time and
				place for the hearing.
3.6. The
				Board may amend the charges set forth in a Complaint and Notice Of Hearing as
				it deems proper.
A complaint and Notice Of Hearing, original or amended shall
				  be served on the demanding or charged party at least thirty (30) days prior to
				  the date of 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. Each party to a
				hearing shall be entitled 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 counsel
				from the West Virginia Attorney General's office.
c. The rules of evidence as applied in civil
				cases in the circuit courts of this State shall be followed, but shall be
				liberally construed to achieve justice.
d. The rules of privilege recognized by State
				law shall be followed.
e.
				Objections to offers of evidence shall be noted in the record. Any party to the
				hearing may vouch the record as to any excluded testimony or other
				evidence.
f. Any party to a hearing
				may present witnesses to testify; may be heard in person, by counsel, or both;
				may present such other evidence as deemed appropriate by the Board or its
				hearing examiner; and, may cross-examine witnesses.
g. The hearing shall be held at a time and
				place designated by the Board, but no hearing shall be conducted unless and
				until at least thirty (30) days written notice is provided. Written notice must
				be 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 or her
				spouse or to any member of his or her family found there who is above the age
				of 16 years; or if service on the party or on a family member can not be made,
				by leaving such notice posted at the front door of such place of abode; or if
				the charg­ed or demanding party does not reside in the state, 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.
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 all pleadings, 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. In a hearing initiated
				by the Board as a result of charges against a licensee pursuant to subsections
				3.3 and 3.4 of this section, the Board shall present its evidence and/or
				testimony first, and shall have the burden of proof.
m. Where a hearing is held upon demand under
				provisions of subsections 3.1, 3.2, and 3.5 of this section, the demanding
				party shall present evidence first, and shall have the burden of
				proof.
n. 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.
o. All parties shall have the right to
				present opening and closing arguments, the length of which may be set by the
				Board or hearing examiner, except that each party shall be given equal time for
				closing arguments.
p. Hearings held
				as a result of charges instituted by the Board against a licensee may be
				continued to a later date or a different place by the Board or its designee by
				appropriate notice to all parties.
q. Motions for 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 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 the requested continuance. A motion for continuance filed
				less than seven (7) days from the date of hearing shall be denied unless the
				reason for the motion could not by due diligence have been ascertained earlier.
				Motions for continuance filed prior to the date of hearing may be ruled on by
				the chair/chairperson of the Board or the chair/chair­person's designee,
				or an appointed hearing examiner. The Board member(s) or presiding hearing
				examiner shall rule on all other motions for continuance.
r. All motions in a case set for hearing,
				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 set by the Board or hearing examiner, or, at the hearing prior to
				commencement of testimony. The Board member(s) or hearing examiner presiding at
				the hearing shall rule after hearing a motion and the response from the
				non-moving party.