West Virginia Code of State Rules › Agency 32 - Acupuncture › Title 32 - LEGISLATIVE RULE BOARD OF ACUPUNCTURE › Series 32-08 - Contested Case Hearing Procedure › Section 32-8-3 - Hearing Procedures

Current through Register Vol. XLI, No. 28, July 12, 2024
3.1. Any
				person denied a license or who has had their license/training permit suspended,
				restricted, or revoked by order of the Board and who believes such order was in
				violation of W. Va. Code §§
									30-1-1 et
				seq. and/or
				30-36-1
				et seq. shall be entitled to a hearing on the action.
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
				licensed acupuncturist, student acupuncturist and acupuncture trainee by the
				Board when reasonable cause exists for believing that he or she 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 § 30-36-1 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 or trainee 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 acupuncture and
				oriental medicine. Such Complaint and Notice of Hearing shall designate the
				Board as the "Complainant," and shall designate the licensed acupuncturist,
				student acupuncturist and acupuncture trainee 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 subsection 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 acupuncture and oriental medicine. 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:
3.10.1. 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.
3.10.2. The Board may be represented by the
				West Virginia Attorney General's Office.
3.10.3. 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.
3.10.4. The rules of
				privilege recognized by the law of this State shall be followed.
3.10.5. 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.
3.10.6. 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 or
				educational training permit.
3.10.7. 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 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 (3) successive weeks in a newspaper
				published in this State; or such notice may be served by registered or
				certified mail.
3.10.8. The hearing
				shall be open to the general public.
3.10.9. 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 so
				testified.
3.10.10. The hearing may
				be conducted by one or more Board members or by a hearing examiner appointed by
				the Board.
3.10.11. 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.
3.10.12. Documentary
				evidence may be received in the form of copies or excerpts or by incorporation
				by reference.
3.10.13. 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.
3.10.14. 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. The Board may require the person
				demanding the hearing to give security for the costs thereof and if the
				demanding party does not substantially prevail, such facts may be assessed
				against them and may be collected in a civil action by other proper
				remedy.
3.10.15. Following the
				conclusion of the Board's presentation of evidence in accordance with
				subsection 3.10.13 of this section, the Respondent or charged party shall have
				the right to submit his or her evidence in defense.
3.10.16. Following the conclusion of the
				demanding party's presentation of evidence in accordance with subsection
				3.10.14 of this section, the Board shall have the right to submit its evidence
				in defense.
3.10.17. 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.
3.10.18. All parties
				shall have the right to offer opening and closing arguments, not to exceed ten
				(10) minutes for each presentation.
3.10.19. 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.
3.10.20. 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 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.
3.10.21. 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 for
				the non-moving party and shall rule on such motions accordingly.