WEST VIRGINIA MASSAGE THERAPY LICENSURE BOARD
1.1. Scope. -- These procedural
rules establish procedures for hearings before the Board.
1.2. Authority. -- W. Va. Code §§30-37-1
et seq., 30-1-1 et seq. and 29A-5-1 et seq.
1.3. Filing Date. -- December 29,
1.4. Effective Date. -- January
The following words and phrases as used in these rules shall have
the following meanings.
2.1. "Board" means the
West Virginia Massage Therapy Licensure Board.
2.2. "Demanding party"
means an individual who has been denied a license to practice
massage therapy by the Board and who demands that the Board hold a
hearing on the denial.
2.3. "Charged party"
means an individual who holds a license to practice massage therapy
issued by the Board and who has been charged by the board as
described in subsections 3.3 and 3.4 of section 3 of these rules.
2.4. "Licensure" means
an individual who holds a license to practice massage therapy issued
by the board.
2.5. "Chair/Chairperson means
chair/chairperson of the Board.
§194-2-3. Hearing Procedures.
3.1. Any person denied a license
by the board who believes the denial was in violation of W. Va. Code
§30-1-1 et seq. and/or 30-37-1 et seq. shall be entitled to
a hearing on the denial upon presenting a written demand for hearing
to the Board.
3.2. When a written demand for
hearing is received by the Board, the chair/chairperson's authorized
designee shall schedule a hearing within forty-five (45) days of
receipt of the demand, unless postponed to a later date by mutual
agreement of the demanding party and the chair/chairperson or
3.3. The Board may institute
charges against any licensee when cause exists for reasonable belief
that licensee to be charged has engaged in conduct or is in a
condition that his or her massage therapy license should be
suspended, revoked or be made subject to probationary conditions
pursuant to grounds set forth in W. Va. Code §30-37-1 et
seq. or the Board's legislative rules. Charges may be based
upon a verified written complaint filed with the Board and
information gathered pursuant to the Board's investigation of the
complaint. Charges may be based on information gained solely
through investigation by the Board.
3.4. Charges initiated against a
licensee as described in subsection 3.3 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 practices of massage
therapy. The complaint and notice of hearing shall designate
the Board as "Complainant", and designate the licensee
involved as the "Respondent"; shall state 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 which is the subject of the complaint; and, shall state
the time, date and place of hearing.
3.5. Upon receipt of a demand for
a hearing described in subsection 3.1 and 3.2 of this section, the
Chair/Chairperson of the Board or the chair/chairperson's 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 massage therapy. 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; and, shall state the date, time and place for the
3.6. The Board may amend the
charges set forth in a Complaint and Notice Of Hearing as it deems
3.7. A complaint and Notice of
Hearing, original or amended shall be served on the demanding or
charged party at least thirty (30) days prior to the date of
3.8. 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.
3.9. Hearings shall be conducted
a. Each party
to a hearing shall be entitled to be represented by an
attorney-at-law, duly qualified to practice law in the State of West
b. The Board
may be represented by counsel from the West Virginia Attorney
c. The rules
of evidence as applied in civil cases in the circuit courts of this
State shall be followed, but shall be liberally construed to achieve
d. The rules
of privilege recognized by State law shall be followed.
to offers of evidence shall be noted in the record. Any party
to the hearing may vouch the record as to any excluded testimony or
f. Any party
to a hearing may present witnesses to testify; may be heard in
person, by counsel, or both; may present such other evidence as
deemed appropriate by the Board or its hearing examiner; and, may
hearing shall be held at a time and place designated by the Board,
but no hearing shall be conducted unless and until at least thirty
(30) days written notice is provided. Written notice must be
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 or her spouse or to any member of
his or her family found there who is above the age of 16 years; or
if service on the party or on a family member can not be made, by
leaving such notice posted at the front door of such place of abode;
or if the charged or demanding party does not reside in the state,
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.
hearing shall be open to the general public.
i. 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.
hearing may be conducted by one or more Board members or by a
hearing examiner appointed by the Board.
k. A record
of the hearing, including all pleadings, 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
l. In a
hearing initiated by the Board as a result of charges against a
licensee pursuant to subsections 3.3 and 3.4 of this section, the
Board shall present its evidence and/or testimony first, and shall
have the burden of proof.
m. Where a
hearing is held upon demand under provisions of subsections 3.1,
3.2, and 3.5 of this section, the demanding party shall present
evidence first, and shall have the burden of proof.
n. 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
parties shall have the right to present opening and closing
arguments, the length of which may be set by the Board or hearing
examiner, except that each party shall be given equal time for
held as a result of charges instituted by the Board against a
licensee may be continued to a later date or a different place by
the Board or its designee by appropriate notice to all parties.
for 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 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 the requested
continuance. A motion for continuance filed less than seven
(7) days from the date of the hearing shall be denied unless the
reason for the motion could not by due diligence have been
ascertained earlier. Motions for continuance filed prior to
the date of hearing may be ruled on by the chair/chairperson of the
Board or the chair/chairperson's designee, or an appointed hearing
examiner. The Board member(s) or presiding hearing examiner
shall rule on all other motions for continuance.
motions in a case set for hearing, 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 set by the Board or hearing examiner, or, at the hearing
prior to commencement of testimony. The Board member(s) or
hearing examiner presiding at the hearing shall rule after hearing a
motion and response from the non-moving party.
§194-2-4. Transcription of Testimony and Evidence.
4.1. All testimony, evidence,
arguments and rulings on the admissibility of testimony and evidence
shall be recorded by stenographic notes or by mechanical means.
4.2. All recorded materials shall
be transcribed. The Board shall have the responsibility to
make arrangements for the transcription of the recorded testimony
4.3. Upon motion of the Board or
any party assigning error or omission in any part of a transcript,
the Board or its appointed hearing examiner shall settle all
differences arising as to whether the transcript truly 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 hearing.
4.4. A transcript of the hearing
shall be provided to all members of the Board for review at least
ten (10) days before the Board's vote is taken on its decision in
any licensure or licensure disciplinary matter.
§194-2-5. Submission of Proposed Findings of Fact and
Conclusions of Law.
Any party may submit proposed findings
of fact and conclusions of law at a time and in a manner designated
by the Board or its appointed hearing examiner.
§194-2-6. Hearing Examiner.
6.1. The Board may appoint a
hearing examiner who shall be empowered to subpoena witnesses and
documents, administer oaths and affirmations, examine witnesses
under oath, rule on evidentiary matters, hold conferences for the
settlement or simplifications of issues by consent of the parties,
cause to be prepared a a record of the hearing so that the Board is
able to discharge its functions, and otherwise conduct hearings.
6.2. Hearing examiners appointed
by the Board are not authorized or empowered to grant, suspend,
revoke or annul any license.
6.3. The hearing examiner shall
prepare recommended findings of fact and conclusions of law for
submission to the Board. The Board may adopt, modify or reject
the hearing examiner's findings of fact and conclusions of law.
§194-2-7. Conferences: Informal Disposition of Cases.
7.1. At any time prior to the
beginning of the hearing or thereafter, the Board, its designee or
its appointed hearing examiner may hold conferences for the
a. To dispose
of procedural requests, prehearing motions or similar matters;
b. To narrow
or settle issues by consent of the parties; or
c. To provide
for the informal disposition of cases by stipulation or agreement.
7.2. The Board or its appointed
hearing examiner may cause such conferences to be held on its own
motion or by the request of the party.
7.3. The Board may also initiate
or consider stipulation or agreement proposals with regard to the
informal disposition of cases and may enter into stipulations and/or
agreements without conference.
Evidentiary depositions may be taken and
read or otherwise included into evidence as in civil actions to the
circuit courts of this State.
Subpoenas to compel the attendance of
witnesses and subpoenas duces tecum to compel the production of
documents may be issued by the Board, the Board's designee, or by
the hearing examiner appointed by the Board. Subpoenas shall
be issued pursuant to W. Va. Code §29A-5-1(b).
10.1. Any final order entered by
the Board following a hearing conducted by these rules shall be
entered within 45 days following the submission to the Board of all
documents and materials necessary for the proper disposition of the
case, including transcripts, and shall contain findings of fact and
conclusions of law, pursuant to W. Va. Code §§29A-5-3 and
10.2. The findings of fact and
conclusions of law must be approved by a majority of the Board
either by a poll or vote as 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 attorney of record, if any, within five (5) days after
entry by the Board by person service or by registered or certified
An appeal from any final order entered
in accordance with these rules shall comply with W. Va. Code §30-1-9.
If any provision of this rule, or the
application thereof, to any person or circumstance is determined to
be invalid, the invalidity shall not affect the provisions or the
applications of this rule which can be given effect without the
invalid provision or application, and to this end, the provisions of
this rule are severable.