Current through Register Vol. XLI, No. 50, December 13, 2024
8.1. Hearings shall be held by the Board of Review in accordance with W. Va. Code § 29A-5-1, et seq. and except as provided in this section, with the Department of Health and Human Resources rule. Rules for Hearings under the Administrative Procedures Act, 69CSR1.8.2. When the Board of Review receives a nurse aide's written request for a hearing, a hearing shall be scheduled within 120 days of the request.8.3. The hearing shall be scheduled in proximity to the location where the alleged incident occurred, in OHFLAC offices, or a location agreed to by the parties.8.4. Written notice of the date, time, place of the hearing, and brief statement of the matter asserted shall be given as prescribed by W.Va. Code § 29A-7-2, or by electronic mail at least 10 days prior to the hearing.8.5. The nurse aide shall bear the cost of his or her attorney and a copy of the transcript, if requested.8.6. Due to the confidential nature of these proceedings, the hearing is not open to the public. The Hearing Examiner shall have the authority to determine who may attend the hearing.8.7. During the hearing, each party may: 8.7.b. Cross-examine witnesses;8.7.c. Submit rebuttal evidence; and8.7.d. Have representation.8.8. OHFLAC bears the burden of proof by a preponderance of the evidence.8.9. The Board of Review shall issue a written decision with supporting findings of fact and conclusions of law. 8.10. The Hearing Examiner may dismiss the request for a hearing if the nurse aide fails to appear at the scheduled hearing without good cause. The Hearing Examiner shall reschedule the hearing if the nurse aide establishes in writing good cause for failing to appear within 10 days of receipt of the notice of the failure to appear.8.11. A nurse aide who fails to appear as a witness at an administrative hearing, after receiving a subpoena to appear, may be placed on the Nurse Aide Abuse and Neglect registry for neglect.8.12. The Board of Review shall send copies of the final order to the following: 8.12.b. The current administrator of the facility in which the incident occurred; and8.12.c. The administrator of the facility in which the nurse aide is currently working, if applicable.8.13. If the Board of Review affirms placement on the Nurse Aide Abuse and Neglect Registry, the Nurse Aide Program shall place the nurse aide's name on the Nurse Aide Abuse and Neglect Registry within 30 days. The nurse aide's name shall remain on the Nurse Aide Abuse and Neglect Registry until a court of law reverses the decision, or the nurse aide petitions for removal of his or her name from the Nurse Aide Abuse and Neglect Registry at the expiration of his or her placement period.8.14. The nurse aide has the right to file an appeal of the decision, within 30 days in the county in which the incident occurred or the Circuit Court of Kanawha County.