West Virginia Code of State Rules › Agency 17 - Psychologists › Title 17 - LEGISLATIVE RULE WV BOARD OF EXAMINERS OF PSYCHOLOGISTS › Series 17-05 - Contested Case Hearing Procedure › Section 17-5-3 - Hearing Procedure

Current through Register Vol. XLI, No. 28, July 12, 2024
3.1. Any
				applicant denied a license by order of the Board who believes such denial was
				in violation of W. Va. Code §§
									30-1-1
et seq.
or
				30-21-1
et seq.
or the rules of the Board shall be entitled to a hearing on the action denying
				such license. Any applicant who desires a hearing for this reason must present
				a written demand for such to the Board. Provided, That requests for hearings
				shall not include cases in which the Board denies a license or certificate
				after an examination to test the knowledge or the ability of the applicant
				where the controversy concerns whether the examination was fair or whether the
				applicant passed the examination.
3.2. 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.
3.3. Any psychologist
				who has had his or her license suspended and any supervised psychologist who
				has had their approval to progress through the licensure application process
				suspended by the Board prior to a hearing on the basis that the psychologist's
				or supervised psychologist's continuation in practice constitutes an immediate
				danger to the public shall be considered a charged party within the meaning of
				this rule, and shall be entitled to a hearing on the action as set forth
				herein.
3.4. Charges may be
				instituted against any psychologist or supervised psychologist by the Board
				when reasonable cause exists for believing that the psychologist or supervised
				psychologist may have engaged in conduct, practices or acts such that his or
				her license or approval to progress through the licensing process should be
				suspended, revoked or otherwise disciplined for one or more of the grounds set
				forth in W. Va. Code §30-21-1
et seq.
or rules of the
				Board. 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 investigative activities undertaken by the
				Board.
3.5. Charges instituted
				against a psychologist or supervised psychologist as described in section 3.4.
				of this rule shall be set forth in a Complaint and Notice of Hearing issued in
				the name of the Board. Such Complaint and Notice of Hearing shall designate the
				Board as the "Complainant", and shall designate the psychologist or supervised
				psychologist involved in the proceeding as the "Respondent"; shall set out the
				substance of each offense charged with sufficient particularity to reasonably
				apprize the Respondent of the nature, time and place of the conduct, practices
				or acts 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 sections 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. 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 apprize 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 Respondent, whether a charged party
				or a demanding party, shall, within thirty (30) days of the date of the
				issuance of the Complaint and Notice of Hearing, serve an answer, in writing,
				on the Board. The Respondent may respond personally or through his or her
				attorney, but the answer shall address the substantive allegations set forth in
				the Board's complaint or order.
3.8. The Board may amend the charges set
				forth in a Complaint and Notice of Hearing as it deems proper.
3.9. 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.
3.10. 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.
3.11. Hearings shall
				be conducted as follows:
3.11.1. 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.
3.11.2. The Board may be represented by the
				West Virginia Attorney General's Office.
3.11.3. 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.
3.11.4. The rules of
				privilege recognized by the law of this state shall be followed.
3.11.5. 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.
3.11.6. 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.
3.11.7. 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 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 be served by registered
				or certified mail.
3.11.8. The
				hearing shall be open to the general public.
3.11.9. 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 or she
				testified.
3.11.10. The hearing may
				be conducted by one or more Board members or by a hearing examiner appointed by
				the Board.
3.11.11. 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.
3.11.12. Documentary
				evidence may be received in the form of copies or excerpts or by incorporation
				by reference.
3.11.13. Where a
				hearing is held upon the instance of the Board after charges have been brought
				against a psychologist or supervised psychologist pursuant to section 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.
3.11.14. Where a hearing is
				held upon demand under the provisions of sections 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.
3.11.15. Following the conclusion of the
				Board's presentation of evidence in accordance with section 3.11.13. of this
				section the Respondent or charged party shall have the right to submit his or
				her evidence in defense.
3.11.16.
				Following the conclusion of the demanding party's presentation of evidence in
				accordance with section 3.11.14. of this section, the Board shall have the
				right to submit its evidence in defense.
3.11.17. 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.
3.11.18. All parties shall have the right to
				offer opening and closing arguments, not to exceed ten (10) minutes for each
				presentation.
3.11.19. Hearings
				held by the Board as a result of charges instituted against a psychologist or
				supervised psychologist 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.
3.11.20. 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 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.
3.11.21. 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.