W. Va. Code R. § 11-3-11

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 11-3-11 - Hearings

11.1. Any party who demands a hearing to have determined any constitutional rights, legal rights, duties, interests or privileges of specific parties as required by law shall specify in writing the grounds relied upon as basis for the relief requested.

11.2. When the President or his or her authorized designee is presented with a demand for a hearing as described in Subsection 11.1 of this section, 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. However, if the President or his or her designee shall determine that the hearing demanded would either involve an exercise of authority in excess of that available to him or her under law, or would serve no useful purpose, the President shall, within forty-five (45) days of receipt of such demand, enter an order refusing to grant the hearing as requested, incorporating therein the reason(s) for such refusal. Appeal may be taken from such order as provided in W. Va. Code § 29A-5-4.

11.3. Charges may be instituted in a complaint against any physician, podiatrist, or physician assistant by the Board and shall be noted in the official minutes of the Board. Charges may be based upon information indicating that there is probable cause for believing that said physician, podiatrist, or physician assistant may have engaged in such conduct or be in such condition that his or her license may be disciplined for one or more grounds set forth in the Medical Practice Act or its implementing rules.

11.4. Upon the receipt of a demand for a hearing as described in Subsection 11.1 of this section, or where a hearing is otherwise required, the President or his or her designee shall as soon thereafter as possible provide the party making such demand and the party charged with a violation of licensing provisions of the law or rules promulgated by the Board, with a notice of hearing (assuming the President has not entered an order denying a hearing as provided in Subsection 11.2 of this section.) Said notice shall be served upon the respondent at least thirty (30) days prior to the hearing date. Said notice shall contain the following information:

11.4.a. The date, time and place of the hearing;

11.4.b. A short plain statement of the matters asserted or charged, as set forth in the complaint; and

11.4.c. A statement of intention to appoint a hearing examiner.

Where charges are instituted, the complaint shall be issued in the name of the Board as an agency of the state and designate the Board as "Petitioner" and shall designate the physician, podiatrist, or physician assistant being proceeded against as "Respondent." The petitioner 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. The Board may amend the complaint as it deems proper.

Upon proper motion, a more definite statement of the matters asserted or charged shall be provided to the respondent or his or her counsel, at least fifteen (15) days prior to the hearing date.

11.5. Hearings shall be conducted as follows:

11.5.a. Any party to a hearing shall have the right to be represented by an attorney-at-law, duly qualified to practice in the State of West Virginia.

11.5.b. The Board may be represented by the Office of the Attorney General.

11.5.c. The rules of evidence as applied in civil cases in the circuit courts of this State shall be followed.

11.5.d. Hearings conducted by the Board or by a hearing examiner appointed by the Board, upon a complaint issued by the Board, are a continuance of the investigation designed to enable the Board to properly discharge its administrative functions and authority. The purpose of such hearing is to afford the respondent an opportunity, in person or by counsel or other representative, to respond to the complaint, to present his or her position, to present evidence in support of his or her contention, to examine and cross-examine evidence and witnesses produced in support of the complaint and to argue orally at the hearing.

11.5.e. 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 respondent in person or by registered or certified mail.

11.5.f. The hearing shall be open to the general public.

11.5.g. The purpose of the hearing shall be to further inquire into the matters set forth in the complaint or any amended complaint, and to record evidence and arguments in support of same and in opposition thereto, so that the Board may determine all issues. 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.

11.5.h. The hearing may be conducted by a Board member, or by a hearing examiner appointed by the Board.

11.5.i. A record of the hearing (including the complaint and amended complaint, the notice of hearing, all pleadings, motions, rulings, stipulations, exhibits, documentary evidence, evidentiary depositions and the stenographic report of the hearing) shall be prepared under the supervision of the Board, if the hearing is conducted by it, or by a hearing examiner who conducts the hearing on behalf of the Board.

11.5.j. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.

11.5.k. Initially, the Board shall be given an opportunity to present evidence, including testimony, papers, electronic and other records, agency staff memoranda and documents in the possession of the Board, in support of its position, except where a hearing has been demanded under the provisions of subsection 11.1 of this section, in which case initially the party demanding the hearing shall present his or her evidence.

11.5.l. Every party shall have the right of cross-examination of witnesses who testify, and following the conclusion of the Board's presentation, shall have the right to submit rebuttal evidence.

11.5.m. The Board shall have the right to cross-examine witnesses providing rebuttal testimony and shall have the right to submit rebuttal evidence.

11.5.n. Following the presentation of all evidence, every party, including the Board, shall have the right to offer argument, not to exceed ten (10) minutes for each presentation.

11.5.o. The state or local organization which represents the profession to which the respondent belongs may seek to intervene in any hearing for the purpose of assisting in the prosecution of the complaint, or may, with the consent of the respondent, seek to intervene for the purpose of assisting the respondent in contesting the complaint.

11.5.p. Hearing examiners are not authorized or empowered to suspend or revoke any license or to place any licensee on probation or to discipline any licensee. The function of a hearing examiner is to preside at the hearing and to cause to be prepared a record of the hearing, as described above, so that the Board is able to discharge its functions. The hearing examiner shall prepare recommended findings of fact and conclusions of law for submission to the Board.

11.5.q. Summons and subpoenas may be issued by the President or Secretary of the Board and by hearing examiners appointed by the Board.

11.5.r. The Board or its hearing examiner may institute proceedings in circuit courts to punish persons for contemptuous or contumacious conduct directed to the Board or to its hearing examiner in the course of hearings.

11.5.s. The respondent shall serve his or her answer within thirty (30) days after service of the complaint upon him or her. Upon failure of the respondent to respond to the complaint as required herein, all of the allegations set out therein as to conduct or conditions of the respondent may be taken by the Board as confessed by the respondent.

11.6. Hearings may be continued from one day to another, or adjourned to a later date or a different place, by announcement thereof or by appropriate notice to all parties.

A continuance may be granted by the President or his or her designee for good cause shown. A written notice of a continuance shall be filed at least five (5) days prior to the hearing date.

W. Va. Code R. § 11-3-11