West Virginia Code of State Rules › Agency 4 - Chiropractic Examiners › Title 4 - LEGISLATIVE RULE WEST VIRGINIA BOARD OF CHIROPRACTIC EXAMINERS › Series 4-03 - Contested Case Hearing Procedure › Section 4-3-3 - 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
				30-16-1
				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 chiropractor by the Board when reasonable cause exists
				for believing that the chiropractor 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 '30-16-1 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 chiropractic medicine. Such Complaint and
				Notice of Hearing shall designate the Board as the "Complainant", and shall
				designate the chiropractor 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:
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.
b. The Board may be represented by the West
				Virginia Attorney General's office.
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.
d. The rules of privilege
				recognized by the law of this State shall be followed.
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.
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 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.
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 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 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.
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 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.
l. Documentary evidence
				may be received in the form of copies or excerpts or by incorporation by
				reference.
m. Where a hearing is
				held upon the instance of the Board after charges have been brought against a
				licensee pursuant to subsections 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.
n.
				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.
o. Following the conclusion
				of the Board's presentation of evidence in accordance with subsection 3.10.(m)
				of this section, the Respondent or charged party shall have the right to submit
				his or her evidence in defense.
p.
				Following the conclusion of the demanding party's presentation of evidence in
				accordance with subsection 3.10.(n) of this section, the Board shall have the
				right to submit its evidence in defense.
q. 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.
r. All parties shall have the right to offer
				opening and closing arguments, not to exceed ten (10) minutes for each
				presentation.
s. 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.
t. 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
				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 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 may be
				ruled on by the Executive Secretary or Assistant Executive Secretary of the
				Board or designated hearing examiner. All other motions for continuance shall
				be ruled on by the Board member(s) or the hearing examiner presiding over the
				hearing.
u. 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.