Current through Register Vol. XLI, No. 50, December 13, 2024
Section 13-2-5 - Disposition of Complaints5.1. Any person, firm, corporation, member of the Board, or public officer may make a complaint to the Board which charges an occupational therapist, occupational therapy assistant, limited permit holder or applicant with a violation of W. Va. Code § 30-28-16 et seq. or of the rules of the Board. The Board may provide a form for that purpose, but a complaint may be filed in any written form. Anonymous complaints will be accepted. In addition to describing the alleged violation which prompted the complaint, the complaint should contain the following:
5.1.a. The name and address of the applicant, licensee or limited permit holder against whom the complaint is lodged;5.1.b. The date (s) of the incident (s);5.1.c. Other persons with knowledge of the incident;5.1.d. The name of any person who may have treated the patient after the alleged incident, and;5.1.e. The name of any health care institution in which the patient was an inpatient or outpatient after or during the alleged incident.5.2. Complainants are immune from liability for the allegations contained in their complaints filed with the Board unless the complaint is filed in bad faith or for a malicious purpose.5.3. The Board shall assign a number to the complaint and maintain a complaint log which records the receipt of each complaint, its nature, and its disposition. Information shall be logged into individual licensees' file.5.4. Upon receipt of a complaint, the Board shall issue one of the following acknowledgments to the complainant:5.4.a. That the complaint has been received and will be reviewed by the Board.5.4.b. That the complaint is outside the jurisdiction of the Board; or,5.4.c. That more information will be required in order to adequately review the individual complaint and listing the required information.5.5. The Board shall send a copy of the complaint, including any supporting documentation, by certified mail to the licensee, limited permit holder or applicant in question for his or her written comment. The licensee, limited permit holder or applicant shall submit a written response to the Board within thirty (30) days of the date of such correspondence, or waive the right to do so.5.6. Requests for comment on complaints sent to licensees, limited permit holders or applicants shall be considered properly served when sent to their last known address. It is the responsibility of the licensee, limited permit holder or applicant to keep the Board informed of his or her current address.5.7. Upon receipt of a licensees' or applicants' comments in response to a complaint, the Board shall promptly send a copy of the same, including any supporting documentation, to the complainant.5.8. After receipt and review of a complaint, unless the complaint is determined to fall within the provisions of subdivision 5.4.b. of this rule, the Board shall cause any reasonable inquiry or investigation it considers necessary to be conducted to determine the truth and the validity of the allegations set forth in the complaint. The review of complaints and any investigation thereof may, at the discretion of the Board, be assigned to a committee of the Board or to an investigator/inspector, by way of written request from the chairperson or his or her designee.5.9. Upon receipt of a complaint the investigator/inspector or board committee shall review and investigate the same and provide the Board with a report. The investigator/inspector or board committee shall be afforded an opportunity to have an investigative interview with the applicant, licensee, or limited permit holder in question and all other involved parties. A report of the interviews shall be placed in the investigation file. The report shall contain a statement of the allegations, a statement of facts, and an analysis of the complaint including a description of the care provided, the records reviewed and documentation by the investigator/inspector or board committee of its findings for action.5.10. To facilitate the disposition of a complaint, the Board, the committee, or the investigator/inspector may request any person to attend an informal conference, or to appear at a regular meeting of the Board, at any time prior to the Board entering any order with respect to the complaint. The informal conference may be conducted in executive session during the normal course of a public meeting at the request of the "charged party" or the Board. The Board, the committee, or the investigator/inspector shall give notice of the conference, which notice shall include a statement of issues to be informally discussed. Statements made at a conference may not be introduced at any subsequent hearing on the merits. No prejudice shall attach for failure to attend a conference pursuant to a request.5.11. Any member of the board or the executive secretary may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations.5.12. At any point in the course of an investigation or inquiry into a complaint, the Board may determine that there is not and will not be sufficient evidence to warrant further proceedings, or that the complaint fails to allege misconduct for which a licensee, limited permit holder or applicant may be sanctioned by the Board: Provided, that in the event the review and investigation of a complaint is assigned to the committee or an investigator/inspector, the committee or investigator/inspector shall make their respective findings and recommendations to the Board prior to the Board dismissing the complaint.5.13. In the event probable cause is found by the Board upon vote after reviewing the recommendation of the investigator/inspector or board committee, the charged party has the right to a hearing and to be represented by counsel of their own choice and expense. The Board shall be represented by the West Virginia Attorney General's office.5.14. Any charged party has the right to enter into a consent agreement with the Board prior to the final decision by the Board. The Board has the right to offer a consent agreement to a charged party prior to a final decision being made.5.15. The Board may also initiate or consider stipulation or agreement proposals (consent agreement) with regard to the informal disposition of cases and may enter into such stipulations and/or agreements.