W. Va. Code R. § 135-52-12

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 135-52-12 - Notification: Appeals:

12.1. Once the Council has received and verified the accuracy of information constituting any of the grounds for adverse action identified in this rule, the Council shall notify the institution and its owner in writing of its intent to recommend denial or suspension, or revocation of reauthorization or other adverse action and the grounds for such recommendation.

12.1.1. The owner of the institution may, within ten (10) business days of receipt of such notice, request a hearing upon the recommended action. Such hearing, if requested, shall be commenced by the Chancellor within twenty (20) business days of such request at a location designated by the Chancellor.

12.1.2. The hearing shall be conducted by the Chancellor, pursuant to the West Virginia Administrative Procedures Act, W. Va. Code § 29A-5-1, et seq.

12.1.3. The Chancellor may continue the hearing at the request of the institution for good cause shown. Continuance shall not be granted as a matter of right.

12.1.4. If the owner or a representative of the institution does not request a hearing within the requisite time period, the recommendation of the Chancellor shall be deemed unchallenged by the institution and reported to the Council for final action.

12.2. During the hearing, the grounds for denial, suspension, withdrawal, or revocation of authorization to operate the institution or other adverse action must be established by a preponderance of the evidence.

12.3. Irrelevant, immaterial, or unduly repetitious evidence may be excluded from the hearing. Formal rules of evidence as applied in civil cases in the circuit courts of this state shall not be applied. When necessary to ascertain facts not reasonably susceptible of proof under those formal rules evidence not admissible there under may be admitted, except where precluded by statute, if it is a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.

12.4. The rules of privilege recognized by the law of this state shall be followed.

12.5. 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.

12.6. 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 Chancellor; and, may cross-examine witnesses called by the Council in support of the charges.

12.7. The hearing shall be open to the general public.

12.8. 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 Council's files. All recorded materials shall be transcribed. The Council shall have the responsibility to make arrangements for the transcription and provision of the reported testimony and evidence to the parties. Upon request, a copy of the transcript shall be furnished to any party at his or her expense.

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

12.10. The Council may call witnesses to testify in support of charges, may present such other evidence to support its position; and, may cross-examine witnesses called by the institution in support of its position.

12.11. All parties shall have the right to offer opening and closing arguments.

12.12. Hearings may be continued or adjourned to a later date or different place by the Chancellor upon by appropriate notice to all parties.

12.13. All motions related to 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 Chancellor at least ten (10) business days before the hearing. Pre-hearing motions shall be heard at a pre-hearing conference or at the hearing prior to the commencement of testimony.

12.14. Any party may submit proposed findings of fact and conclusions of law at a time and manner designated by the Chancellor.

12.15. At any time prior to the hearing or thereafter, the Chancellor may hold conferences for the following purposes:

12.15.1. To dispose of procedural requests, pre-hearing motions or similar matters;

12.15.2. To simplify or settle issues by consent of the parties; or,

12.15.3. To provide for the informal disposition of cases by stipulation or agreement.

12.16. The Chancellor may cause such conferences to be held on the Council's own motion or by the request of a party.

12.17. Evidentiary depositions may be taken and read or otherwise included into evidence as in civil actions in the circuit courts of this state.

12.18. Any final order entered by the Council following a hearing conducted pursuant to these rules shall be made pursuant to the provisions of West Virginia Code § 29A-5-3. Such orders shall be entered within sixty (60) days following the submission 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 unless good cause exists to extend such time or by agreement of the parties.

12.19. Findings of fact and conclusions of law shall be recommended to the Council by the Chancellor and must be approved by a majority of the Council by vote at a regular meeting, before a final order is entered. A copy of the final order approved by a majority of the Council shall be served upon the institution and/or its attorney of record, if any, within ten (10) business days after entry by the Council by personal service or by registered or certified mail.

12.20. The final order may suspend, withdraw or revoke the authorization of the institution; place an institution on probation; order refunds to students; order forfeiture of the institution's surety bond; or order any other action deemed appropriate by the Council.

12.21. All proceedings pursuant to this rule shall be conducted pursuant to and comply with applicable statute, including, but not limited to, West Virginia Code § 29A-5-1, et seq.

12.22. Nothing in this rule precludes an institution's current or former students or current or former employees from pursuing any remedy at law or equity that may be available to them based on the institution's actions or failures to act in accordance with this rule or any other provision of applicable law.

12.23. Nothing in this rule in any way affects or limits the due process protections or other protections afforded to proprietary schools under either W. Va. Code § 18B-2B-9 or 135 C.S.R. 35, Business, Occupational, and Trade Schools.

W. Va. Code R. § 135-52-12