wv-wv-18572: 8-02 — Contested Case Hearing Procedure

6/29/2026 4:18:46 PM Office of West Virginia Secretary Of State NOTICE OF PUBLIC COMMENT PERIOD AGENCY: Hearing Aid Dealers TITLE-SERIES: 8-02 RULE TYPE: Legislative Amendment to Existing Rule: Yes Repeal of existing rule:Yes RULE NAME: Contested Case Hearing Procedure CITE STATUTORY AUTHORITY: 30-26-3 COMMENTS LIMITED TO: Written DATE OF PUBLIC HEARING: LOCATION OF PUBLIC HEARING: DATE WRITTEN COMMENT PERIOD ENDS: 07/29/2026 12:00 AM COMMENTS MAY BE MAILED OR EMAILED TO: NAME: West Virginia Board of Examiners for Speech-Language Pathology and Audiology 99 Edmiston Way Ste 214, Box 11 ADDRESS: EMAIL: wvbeslpa@wv.gov PLEASE INDICATE IF THIS FILING INCLUDES: No RELEVANT FEDERAL STATUTES OR REGULATIONS: (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) INCORPORATED BY REFERENCE: No (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) PROVIDE A BRIEF SUMMARY OF THE CONTENT OF THE RULE: Changes name to Contested Case Hearing Procedure for Hearing Aid Dipensers, Sunset provision date to 8/1/2032, changed permittees to trainee, changes dealer to dispenser. SUMMARIZE IN A CLEAR AND CONCISE MANNER CONTENTS OF CHANGES IN THE RULE AND A STATEMENT OF CIRCUMSTANCES REQUIRING THE RULE: Changes name to Contested Case Hearing Procedure for Hearing Aid Dipensers, Sunset provision date to 8/1/2032, changed permittees to trainee, changes dealer to dispenser. SUMMARIZE IN A CLEAR AND CONCISE MANNER THE OVERALL ECONOMIC IMPACT OF THE PROPOSED RULE: A. ECONOMIC IMPACT ON REVENUES OF STATE GOVERNMENT: N/A B. ECONOMIC IMPACT ON SPECIAL REVENUE ACCOUNTS: N/A C. ECONOMIC IMPACT OF THE RULE ON THE STATE OR ITS RESIDENTS: N/A D. FISCAL NOTE DETAIL: Effect of Proposal Fiscal Year 2026 2027 Fiscal Year (Upon Increase/Decrease Increase/Decrease Full (use "-") (use "-") Implementation) 1. Estimated Total Cost Personal Services Current Expenses Repairs and Alterations Assets Other 2. Estimated Total Revenues E EXPLANATION OF ABOVE ESTIMATES (INCLUDING LONG-RANGE EFFECT): N/A BY CHOOSING 'YES', I ATTEST THAT THE PREVIOUS STATEMENT IS TRUE AND CORRECT. Yes Pamela Coughlin --By my signature, I certify that I am the person authorized to file legislative rules, in accordance with West Virginia Code §29A-3-11 and §39A-3-2. 8CSR2 TITLE 8 LEGISLATIVE RULE BOARD OF HEARING-AID DEALERS EXAMINERS FOR SPEECH-LANGUAGE PATHOLOGY AND AUDIOLOGY SERIES 2 CONTESTED CASE HEARING PROCEDURE FOR HEARING AID DISPENSERS '8-2-1. General. 1.1. Scope. -- Thisrulespecifiestheprocedurefortheadjudicationofcontestedcasehearingsbeforethe Board. 1.2. Authority. -- W. Va. Code ''30-26-1 et seq. and 30-1-1 et seq. 1.3. Filing Date. -- January 10, 2001. 1.4. Effective Date. -- February 28, 2001. 1.5. SunsetProvision. -- ThisruleshallterminateandhavenofurtherforceoreffectonAugust1,2032. '8-2-2. Definitions. The following words and phrases as used in this rule shall have the following meanings, unless the context otherwise requires: 2.1. "Board" means the West Virginia Board of Hearing-Aid Dealers Examiners for Speech-Language Pathology and Audiology. 2.2. "Demanding party" means an individual who has been denied a license to practice hearing-aid dealing dispensing or fitting by the Board and who, as a result, demands that a hearing be held before the Board on the issue of such denial. 2.3. The term ACharged party@ means an individual who holds a license to practice hearing-aid dealing dispenserorfittingissuedbytheBoardandwhohasbeenchargedbytheBoardasdescribedinSection3.4of these rules. 2.4. ALicense@meansalicenseortemporarytraineepermitissuedbytheBoardpursuanttoW.Va.Code '30-26-1 et seq. 2.5. The term "Licensee" means an individual who holds a license to practice hearing-aid dealing dispensing or fitting issued by the Board. A Apermittee trainee@ is a person who holds a temporary trainee permit. 2.6. APracticeofhearing-aiddealing dispensingorhearing-aidfitting@meansthepracticeofhearing-aid dealingdispensingorfittingasdefinedinW.Va.Code'30-26-1andincludeshearing-aiddealersdispensers, hearing-aid fitters and trainees. '8-2-3. Hearing Procedure. 1 8CSR2 3.1. Anyapplicantdeniedalicenseoranylicenseeorpermitholderwhohashadtheirlicensesuspended by the Board who believes such denial was in violation of W. Va. Code '' 30-1-1 et seq. and/or 30-26-1 et seq.shallbeentitledtoahearingontheactiondenyingorsuspendingsuchlicense. Suchhearingshallbeina place allowed in W. Va. Code '30-26-16. 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. Whenthechairofthe Boardorhisorherauthorizeddesigneeis presentedwithsuchademandfora hearing,heorsheshallscheduleahearingwithinforty-five(45)daysofreceiptbyhimorherofsuchwritten demand, unless postponed to a later date by mutual agreement. 3.4. Charges may be instituted against any licensee or permittee trainee by the Board when probable cause exists for believing that the licensee or permittee trainee may have engaged in conduct, practices or actsinsuchconditionthathisorherlicenseshouldbesuspended,revokedorotherwisedisciplinedforoneor more of the grounds set forth in W. Va. Code '30-26-1 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 informationgatheredbytheBoardintheprocessofinvestigatingsuchcomplaint.Chargesmayalsobebased upon information received solely through investigative activities undertaken by the Board. 3.5. Charges instituted against a licensee or permittee trainee as described in subsection 3.4 of this section shallbe set forth ina Complaint and NoticeofHearing issued inthename of theBoard as the agency of the state regulating the practice of hearing-aid dealing orfittingdispenser. Such Complaint and Notice of Hearing shall designate the Board as the AComplainant” and shall designate the licensee or permittee trainee involved in the proceeding as the ARespondent"; 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; and shall state the date, time and place for the hearing. 3.6. Upon receipt of a demand for a hearing described in subsections 3.1 and 3.2 of this section, the chairperson 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 hearing-aid dealing or fitting dispensing. Such Complaint and Notice of Hearing shall designate the demanding party as the"Complainant@andshalldesignatetheBoardastheARespondent";shallsetoutthesubstanceofeachand everyreasonthattheBoardhasdeniedthedemandingpartyalicenseorpermitwithsufficientparticularityto reasonably apprise the demanding party of the nature, time and place of the conduct or condition at issue therein; and shall state the date, time and place for the hearing. 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,amoredefinitestatementofthematterscharged,orthereasonsstatedfordenialoflicensureshallbe providedtothedemandingorchargedpartyorhisorhercounsel,atleastfifteen(15)dayspriortothehearing 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. 2 8CSR2 3.10.2. The Board shall 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,therulesofevidenceasappliedincivilcasesinthecircuitcourtsofthisstateshallbefollowed. 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 deemedappropriatebytheBoardand,whenappropriate,maycross-examinewitnessescalledbytheBoardin support of the charges or in defense of its decision to deny licensure or a permit. 3.10.7. ThehearingshallbeheldatsuchtimeandplaceasisdesignatedbytheBoard,butnohearing shall be conducted unless and until at least thirty (30) days written notice thereof has been served upon the chargedordemandingpartyand/orhisorherattorneyinperson;orifheorshecannotbefound,bydelivering suchnoticeathisorherusualplaceofabodeandgivinginformationofitspurport,tohiswifeorherhusband, 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,byleavingsuchnoticepostedatthefrontdoorofsuchplaceofabode;orifheorshedoesnotresidein 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. 3.10.8. The hearing shall be open to the general public. 3.10.9. MembersoftheBoardanditsofficers,agentsandemployeesshallbecompetenttotestifyat 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. 3.10.10. ThehearingshallbeconductedbyaquorumoftheBoardorhearingexaminerappointedby 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 stenographicreportofthehearing,shallbemadeandatranscriptthereofmaintainedintheBoard'sfiles.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 subsection 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 8CSR2 3.10.14. Whereahearingisheldupondemandundertheprovisionsofsubsections3.1,3.2,3.3,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. 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 or 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 offer its evidence in rebuttal. 3.10.17. The Board may call witnesses to testify in support of its decision to deny licensure or to denyapermitorinsupportofthechargesinstitutedagainstalicenseeorpermitteetrainee; maypresentsuch 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 or permittee trainee may be continued or adjourned to a later date or 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 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 hearing date may be denied unless the reason for the motioncouldnothavebeenascertainedearlier.Motionsforcontinuancefiledpriortothedateofhearingshall be ruled on by the chair or executive secretary of the Board. All other motions for continuance shall be ruled on by the Board member(s) or the member 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) daysbefore thehearing. Prehearingmotionsshallbeheard ataprehearingconference or at the hearing prior to the commencement of testimony. The Board member(s) presiding at the hearing shall hear the motions and the response from the non-moving party and shall rule on such motions accordingly. '8-2-4. Transcription of Testimony and Evidence. 4.1. Alltestimony,evidence,argumentsandrulingsontheadmissibilityoftestimonyandevidenceshall be reported by stenographic notes and characters or by mechanical means. 4.2. All reported materials shall be transcribed. The Board shall have the responsibility to make arrangements for the transcription of the reported testimony and evidence. 4.3. Upon themotion of the Board or any party assigning error or omission in any part of any transcript, the Board chair or presiding member shall settle all differences arising as to whether such transcript truly 4 8CSR2 discloses what occurred at the hearing and shall direct that the transcript be corrected and/or revised as appropriate so as to make it conform to the truth. 4.4. A transcript of the hearing shall beprovided to allmembers of the Board for review at least ten (10) days before the vote is taken on its decision in any licensure or permit disciplinary matter. '8-2-5. Submission of Proposed Findings of Fact and Conclusions of Law. 5.1. Any party may submit proposed findings of fact and conclusions of law at a time and manner designated by the Board. '8-2-6. Conferences; lnformal Disposition of Cases. 6.1. At any time prior to the hearing or thereafter, the Board, its designed hearing examiner or other designee may hold conferences for the following purposes: 6.1.1. To dispose of procedural requests, prehearing motions or similar matters; 6.1.2. To simplify or settle issues by consent of the parties; or, 6.1.3. To provide for the informal disposition of cases by stipulation or agreement. 6.2. The Board may cause such conferences to be held on its own motion or by the request of a party. 6.3. The Board may also initiate or consider stipulation or agreement proposals with regard to the informal disposition of cases and may enter into such stipulations and/or agreements without conference. '8-2-7. Depositions. 7.1. Evidentiarydepositionsmaybetakenandreadorotherwiseincludedintoevidenceasincivilactions in the circuit courts of this state. '8-2-8. Subpoenas. 8.1. Subpoenas to compel the attendance of witnesses and subpoenas duces tecum to compel the production of documents may be issued by any member of the Board, its Executive Secretary, its Assistant Executive Secretary. Such subpoenas shall be issued pursuant to W. Va. Code '29A-5-1(b). 8.2. Written requests by a party for the issuance of subpoenas or subpoenas duces tecum as provided in subsection 8.1 of this section must be received by the Board no later than ten (10) days before a scheduled hearing.Anypartyrequestingtheissuanceofsubpoenasducestecumshallseethattheyareproperlyservedin accordance with W. Va. Code '29A-5-1(b) '8-2-9. Orders. 9.1. Any final order entered by the Board following ahearingconducted pursuant to these rules shall be made pursuant to the provisions of W. Va. Code ''29A-5-3 and 30-1-8(d). Such orders shall be entered withinforty-five(45)daysfollowingthesubmissionofalldocumentsandmaterialsnecessaryfortheproper dispositionofthecase,includingtranscripts,andshallcontainfindingsoffactandconclusionsoflawunless good cause exists to extend such time or by agreement of the parties. 5 8CSR2 9.2. ThefindingsoffactandconclusionsoflawmustbeapprovedbyamajorityoftheBoardeitherbya poll or vote at a regular meeting, before a final order is entered. A copy of the final order approved by a majority of the Board shall be served upon the demanding or charged party and/or his or her attorney of record, if any, within ten (10) days after entry by the Board by personal service or by registered or certified mail. A secret ballot is not permitted. '8-2-10. Appeal. 10.1. An appeal from any final order entered in accordance with these rules shall comply with the provisions of W. Va. Code ''30-1-9 and W. Va. Code 29A-6-1 et seq. 6