West Virginia Code of State Rules › Agency 16 - Physical Therapy › Title 16 - LEGISLATIVE RULE WV BOARD OF PHYSICAL THERAPY › Series 16-02 - Contested Case Hearing Procedure › Section 16-2-6 - Hearing Procedure

Current through Register Vol. XLI, No. 28, July 12, 2024
6.1.
				Any applicant denied a license or any licensee or permit holder who has had
				their license or temporary permit suspended by the Board who believes that such
				denial was in violation of W. Va. Code '30-1-1. et
				seq. and/or '30-20-1. et seq. will be entitled to a hearing on the action
				denying or suspending such license or temporary permit.
6.2. Any person who desires a hearing for the
				reason described in subsection 6.1. of this section must present a written
				demand for a hearing to the Board.
6.3. The Board may require the person
				demanding the hearing to give security for the costs of the hearing and if the
				demanding party does not substantially prevail, such costs may be assessed
				against them and may be collected in a civil action or by other proper
				remedy.
6.4. When the Chair of the
				Board or his/her authorized designee is presented with a demand for a hearing,
				he or she will schedule a hearing within sixty (60) days of receipt of the
				written demand. The hearing may be postponed to a later date by mutual
				agreement.
6.5. Charges may be
				instituted against any Licensee or Permittee by the Board when probable cause
				exists for believing that the Licensee or Permittee may have engaged in
				conduct, practices, or acts for which his or her license should be suspended,
				revoked or otherwise disciplined for one or more of the grounds as set forth in
				W.Va. Code '30-20-10.
				et seq. or Title 16, Series 1, Rules of the Board. Charges may be based upon
				information received by way of a verified written complaint filed with the
				Board; and/or any information gathered by the Board in the process of
				investigating a complaint. Charges may also be based upon information received
				solely through investigative activities undertaken by the Board.
6.6. Allegations instituted against a
				Licensee or Permittee as described in subsection 6.4. of this section must be
				set forth in a Complaint and Notice of Hearing by the Board as the Agency of
				the State regulating the practice of Physical Therapy. The Complaint and Notice
				of Hearing must designate the Board as the AComplainant@, and will designate
				the Licensee or Permittee involved in the proceeding as the ARespondent@. The
				Complaint and Hearing Notice must state the substance of each offense with
				sufficient details in order to reasonably apprize the Respondent of the nature,
				date and place of the conduct or condition complained of therein. It must also
				state the date, time and place for the hearing.
6.7. Upon receipt of a demand for a hearing
				described in subsections 6.1. and 6.2. of this section, the Chair or his or her
				designee will 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 Physical Therapy. Such Complaint and Notice of Hearing shall
				designate the demanding party as the AComplainant@ and will designate the Board
				as the ARespondent@; will set out the substance of each and every reason that
				the Board has denied the demanding party a license or temporary permit with
				sufficient particularity to reasonably apprize the demanding party of the
				nature, date and place of the conduct or condition at issue therein. It must
				also state the date, time and place for the hearing.
6.8. A Complaint and Notice of Hearing must
				be served upon the demanding or charged party at least thirty (30) days prior
				to the date of the hearing.
6.9.
				Hearings shall be conducted as follows:
6.9.1.
				Any party to a hearing has the right to be represented by an attorney-at-law,
				duly qualified to practice law in the State of West Virginia.
6.9.2. The Board will be represented by the
				West Virginia Attorney General=s Office.
6.9.3. Irrelevant, immaterial, or unduly
				repetitious evidence will 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.
6.9.4. The rules of
				privilege recognized by the law of this State shall be followed.
6.9.5. Objections to evidentiary offers will
				be noted in the record. Any party to the hearing may vouch the record as to any
				excluded testimony or other evidence.
6.9.6. 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 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 temporary permit.
6.9.7. The hearing will be held at such time
				and place designated by the Board, but no hearing will be conducted unless at
				least thirty (30) days written notice of the hearing 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 to 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 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.
6.9.8. Members of the Board and its officers,
				agents and employees are 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.
6.9.9. The hearing will be conducted by a
				quorum of the Board.
6.9.10. A
				record of the hearing, including the complaint(s), and if applicable, the
				notice of hearing, all pleadings, motions, rulings, stipulations, exhibits,
				documentary evidence, evidentiary depositions and the stenographic report of
				the hearing, will be made and a transcript thereof maintained in the Board=s
				files. Upon request, a copy of the transcript will be furnished to any party at
				his or her expense.
6.9.11. Any
				documentary evidence resulting from an investigation or sworn statements may be
				received in the form of copies or excerpts of by incorporation by
				reference.
6.9.12. Where a hearing
				is held upon the instance of the Board after charges have been brought against
				a Licensee or Permittee pursuant to subsections 6.5. and 6.6. of this section,
				the Board has the burden of proof in substantiating the charges and must
				present its evidence and/or testimony in support of the charges
				first.
6.9.13. Where a hearing is
				held upon demand under the provisions of subsections 6.1., 6.2., 6.3., and 6.7.
				of this action, the demanding party has the burden of proof and will,
				therefore, be required to present his or her evidence first.
6.9.14. Following the conclusion of the
				Board=s presentation of evidence in accordance with subsection 6.9.12. of this
				section, the Respondent or charged party has the right to submit his or her
				evidence in defense.
6.9.15.
				Following the conclusion of the demanding party=s presentation of evidence in
				accordance with subsection 6.9.13. of this section, the Board has the right to
				offer its evidence in rebuttal.
6.9.16. The Board may call witnesses to
				testify in support of its decision to deny licensure, to deny a temporary
				permit, or in support of the charges instituted against a Licensee or
				Permittee; 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.
6.9.17. All parties have the right to offer
				opening and closing arguments, not to exceed ten (10) minutes for each
				presentation, unless otherwise lengthened by the Board.
6.9.18. Hearings held by the Board as a
				result of charges instituted against a Licensee or Permittee may be continued
				or adjourned to a later date or different place by the Board or its designee by
				appropriate notice to all parties.
6.9.19. 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 or 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.
				Motions for continuance filed prior the the date of the hearing will be ruled
				on by the Chair or Executive Secretary/Administrator of the Board. All other
				motions for continuance will be ruled on by the Board member(s) or the member
				presiding over the hearing.
6.9.20.
				All motions related to a case set for hearing before the Board, except motions
				for continuance and those made during the hearing, must be in writing and
				received in the office of the Board at least ten (10) days before the hearing.
				Prehearing motions will be heard at a prehearing conference or at the hearing
				prior to the commencement of testimony. The Board member(s) presiding at the
				hearing will hear the motions and responses from the non-moving party and rule
				on the motions.