§8-1-1. General.
1.1. Scope. -- This legislative rule establishes general regulations governing the West Virginia Board of Hearing Aid Dealers.
1.2. Authority -- W.Va. Code §§30-26-3, 30-26-14, 30-26-15.
1.3. Filing Date -- April 22, 2021
1.4. Effective Date -- April 22, 2021
1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon the expiration from April 22, 2031.
§8-1-2. Definitions.
2.1. A “Permanent Office” is an office or place of business which is staffed, open and available to the public during normal business hours of the community which it serves. The closing of an office for a lunch period not to exceed one (1) hour or of an additional day on an extended holiday weekend will not be regarded as a violation of this rule, but the rental of desk space, the use of a post office box number as an address or the use of a telephone answering service does not qualify as a permanent office.
2.2. “Reasonable Distance” as used in W. Va. Code §30-26-5(1) means within twenty (20) statute miles by highway from the borders of the State of West Virginia. The Board may waive this requirement in a specific instance when, in the sole opinion of the Board, the welfare of the people of West Virginia would be better served by waiver.
2.3. The statement “The Making of Impressions for Ear Molds” means making molds of the ear to be used in conjunction with the manufacture and fitting of a hearing aid.
2.4. “Significant Air-Bone Gap” means a differential between air and bone readings of fifteen (15) or more decibels at five hundred (500), one thousand (1,000) and two thousand (2,000) Hertz, ANSI standard.
§8-1-3. Application For Licenses And Permits.
3.1. The Board shall furnish every person requesting an application for a license or trainee permit the necessary forms, a copy of the West Virginia law pertaining to the licensing of hearing aid dealers and fitters, a copy of any waiver forms prescribed by the Board and such other information or questionnaires as the Board considers necessary.
3.2. The Board shall design the application forms to provide the information necessary to satisfy itself that all requirements pertaining to the West Virginia law are being fulfilled.
3.3. All applications shall be signed by the applicant and sworn by him or her before a notary public. In the case of a trainee permit, the supervisor’s name, address, license number, and signature shall appear on the application.
3.4. The application shall be accompanied by a money order or certified check for the license or permit fee.
3.5. The Board may reject an incomplete application form and return it to the applicant for completion.
3.6. The Board shall deny any person knowingly furnishing false information in the application the right to the examination. If the applicant has already been licensed or received a permit before the falsification of the information has been made known to the Board, the license or permit is subject to suspension or revocation and the Board may forward all pertinent documents to the appropriate prosecuting attorney for possible prosecution for fraud and/or perjury.
§8-1-4. Issuance Of Licenses And Permits.
4.1. The Board shall issue to each applicant, within thirty (30) days of receipt of a properly completed application and payment of one hundred and twenty dollars ($120.00) a hearing aid dealer’s or fitter’s license if the applicant is an individual who:
4.1.a. Meets the standards set forth in W. Va. Code §§30-26-5(1)-(5); and
4.1.b. Has successfully taken and passed a qualifying examination as specified and administered by the Board.
4.2. If the applicant is a firm, partnership, trust, corporation, association or other like organization, the application, in addition to information required by the Board, shall be accompanied by an application for license for each person who engages in the dealing in or fitting of hearing aids. No licensed partnership, trust, association or corporation shall permit any unlicensed person to sell or fit hearing aids.
4.3. Each license expires on the first day of July each year. Each licensee engaged in the practice of dealing in or fitting hearing aids shall apply annually to the Board for renewal of the license. The Board shall issue to the applicant a renewal license. The renewal fee is one hundred and twenty dollars ($120.00). A person who applies for renewal of a hearing aid dealer’s or fitter’s license which has expired is not required to take any examination as a condition for renewal: Provided, that application for renewal is made within two (2) years of the date the license expired. If application for renewal is made within thirty (30) days of expiration of a person’s license, the Board may renew such license upon payment of the renewal fee of one hundred and twenty dollars ($120.00) plus a penalty of one hundred and twenty dollars ($120.00) for late filing. If application for renewal is made after expiration of such thirty (30) day period, the Board may renew such license upon payment of twice the renewal fee of one hundred and twenty dollars ($120.00).
4.4. The licensee or permittee is responsible for filing and paying fees for renewals. If reminders of the renewals are sent by the secretary it is a courtesy only and shall not be considered a responsibility by the Board.
4.5. Each licensee shall display his or her license in a conspicuous place in his or her office or place of business at all times. The Board shall issue duplicate copies of a license upon receipt of a properly completed application and payment of ten dollars ($10.00) for each copy requested.
4.6. Each person engaged in training to become a licensed hearing aid dealer or fitter shall apply to the Board for a hearing aid dealer’s or fitter’s trainee permit. The Board shall issue to each applicant, within thirty (30) days of receipt of a properly executed application and payment one hundred and twenty dollars ($120.00), a trainee permit if the applicant is:
4.6.a. A person of good moral character and has never been convicted nor is presently under indictment for a crime involving moral turpitude;
4.6.b. Is eighteen (18) years of age or older;
4.6.c. Has an education equivalent to a four (4) year course in an accredited high school;
4.6.d. Is free of any chronic infectious or contagious disease; and
4.6.e. Will engage in training to become a hearing aid dealer or fitter on a full time basis.
4.7. Each trainee permit issued by the Board expires one (1) year from the date it was first issued, and may be renewed once if the trainee has not successfully completed the qualifying examination for licensing as a hearing aid dealer or fitter before the expiration date of the permit. The Board shall issue a renewal permit to each applicant upon the receipt of a properly completed application and the payment of one hundred and twenty dollars ($120.00); Provided, That the trainee applying for the renewal permit has taken the qualifying examination at least once during the first year the permit was issued and attained a grade of at least fifty percent (50%) in the written portion of the examination and at least seventy percent (70%) in the performance test. If application for renewal is made after expiration of a person’s trainee permit, the Board may renew such trainee permit upon payment of twice the renewal fee of one hundred and twenty dollars ($120.00).
4.8. A person holding a trainee permit shall not engage in the practice of dealing in or fitting of hearing aids except while under the direct supervision of a specified licensed hearing aid dealer or fitter. The supervisor and the holder of the temporary trainee permit shall work in the same office for the duration of the temporary trainee permit. A licensed hearing aid dealer or fitter may not supervise more than one (1) trainee at a time. The supervisor may be held responsible to the Board for any violations of the law regulating hearing aid dealers and fitters, or the rules of the Board.
4.9. Each trainee permit is valid only for the trainee in whose name it is issued and for his or her specific supervisor unless otherwise approved by the Board.
4.10. A trainee shall present himself or herself for examination within twelve (12) months from the date of the issuance of his or her trainee permit.
4.11. The Board shall require any applicant for license or a trainee’s permit to appear before it in person for further examination before the issuance of the license or trainee permit, unless the Board waives the personal appearance.
§8-1-5. Reciprocity.
5.1. The Board shall promote reciprocity agreements with those states adjoining the State of West Virginia if those states provide reciprocity with West Virginia. The Board shall consider reciprocity with other states on an individual basis.
5.2. The Board will not honor a license issued to an individual, partnership, trust, association or other like organization by another state in lieu of a license issued by the State of West Virginia. However, if an individual applicant has completed an examination equal or superior to the West Virginia examination, the Board may waive or partially waive the examination requirements for licensure in the State of West Virginia.
§8-1-6. Responsibilities Of The Licensee.
6.1. Each licensee engaged in dealing or fitting of hearing aids shall be familiar with the requirements of the law regulating those activities in West Virginia and with the rules of the Board.
6.2. Each licensee engaged in dealing in or fitting of hearing aids shall make timely application for a license or renewal of a license, to complete the forms properly and pay the fees required, and to hold himself or herself available for examination at the times and places designated by the Board.
6.3. The licensed dealer or fitter shall use the results of appropriate test procedures on every individual to whom he or she sells or fits a hearing aid, and have them on file for a period of seven (7) years. The minimum acceptable test records are:
6.3.a. Pure tone tests, including air and bone conduction with masking where appropriate;
6.3.b. Speech reception threshold expressed in decibels;
6.3.c. Most comfortable level expressed in decibels;
6.3.d. Discrimination scores expressed in percentage with indication of the test word used.
6.4. Full responsibility for the compliance of a trainee permit holder rests with the licensed supervisor who is registered as the trainee’s supervisor at the time any noncompliance may occur. The supervisor may relieve himself or herself of the responsibility of a trainee by advising the Board by certified mail and explaining fully the circumstances under which he or she is withdrawing supervisory responsibility of the trainee. The trainee permit shall be forwarded to the Board by the supervisor.
§8-1-7. Matters To Be Ascertained By Licensee Prior To The Sale Or Fitting Of Hearing Aids.
7.1. Every licensee engaged in the practice of dealing in or fitting of hearing aids shall, prior to the sale or fitting of a hearing aid to a prospective customer, make the following disclosure, in writing, to the prospective customer: “ The purchaser has been advised at the outset of his relationship with the hearing aid dealer that any examination or representation made by a licensed hearing aid dealer in connection with the practice of fitting this hearing aid is not an examination, diagnosis, or prescription by a person licensed to practice medicine in this state and therefore must not be regarded as medical opinion.”
7.2. Every licensee engaged in the practice of dealing in or fitting of hearing aids shall, prior to the sale or the fitting of a hearing aid intended to be worn or used by any person under eighteen (18) years of age, first ascertain whether such person has within the next preceding six months been examined for the defective or impaired hearing condition sought to be relieved by an otolaryngologist or other duly licensed physician.
7.3. If such person under the age of eighteen has been so examined, the licensee shall, prior to the sale or fitting of such hearing aid, obtain from such otolaryngologist or physician written authority to fit a hearing aid.
7.4. If such person under the age of eighteen has not been examined by an otolaryngologist or physician, the licensee shall not proceed with the sale or fitting of a hearing aid until after such person has been so examined.
7.5. If the prospective user of a hearing aid is eighteen years of age or older, prior to the sale or fitting of a hearing aid to the prospective customer, the hearing aid dispenser may afford the prospective user an opportunity to waive the medical evaluation requirement provided that the hearing aid dispenser:
7.5.a. Informs the prospective user that the exercise of the waiver is not in the user’s best health interests;
7.5.b. Does not in any way actively encourage the prospective user to waive such a medical evaluation;
7.5.c. Affords the prospective user the opportunity to sign the following statement, prior to the sale or fitting of a hearing aid: “I have been advised by (hearing aid dispenser’s name) that the Food and Drug Administration has determined that my best health interest would be served if I had a medical evaluation by a licensed physician, preferably one who specializes in diseases of the ear, before purchasing a hearing aid. I do not wish a medical evaluation before purchasing a hearing aid.”
7.5.d. Prior to the sale of a hearing aid, every licensee shall determine that the prospective purchaser’s best interest would be served by consulting an otolaryngologist or other physician specializing in disease of the ear, or any other physician duly licensed to practice medicine in this state, if any of the following conditions are found upon examination of such person:
7.5.d.1. Visible congenital or traumatic deformity of the ear;
7.5.d.2. History of active ear discharge within the previous ninety (90) days;
7.5.d.3. History of sudden or rapidly progressive hearing loss within the previous ninety days;
7.5.d.4. Acute of chronic dizziness;
7.5.d.5. Unilateral hearing loss of sudden or recent onset within the previous ninety days; or
7.5.d.6. Significant air-bone gap.
7.6. A copy of any writing or form required to be given to a prospective purchaser or other person by the terms of this section shall be retained in the records of the licensee for a period of at least seven (7) years following the issuance of each writing.
§8-1-8. Sales Receipt.
8.1. The licensed individual or permit holder making the sale shall sign a customer’s receipt and the name shall be the same name under which the licensee or permit holder is registered with the Board.
8.2. The receipt shall bear the following information:
8.2.a. The name, address and date of birth of the recipient of the hearing aid;
8.2.b. The date of sale;
8.2.c. The name of the manufacturer, the model number and serial number of the hearing aid sold;
8.2.d. The name, address, and telephone number of the licensee’s office;
8.2.e. The signature of the licensee or permit holder making the fitting;
8.2.f. The terms of the guarantee or warranty under which the hearing aid is sold. To satisfy this requirement, the receipt may bear the notation “One Year Warranty” or similar expression: Provided, that the full terms of the warranty by the manufacturer or seller are available for inspection;
8.2.g. If the hearing aid has previously been sold at retail, the term “Used” or “Reconditioned”, whichever is applicable, with the terms of the guarantee or warranty; and
8.2.h. The retail price of the hearing aid, any discount or trade-in allowance, the net price of the aid, and the terms of the installment or time purchase agreement if applicable. If more convenient, the terms of the installment or time payment contract may be executed on a separate document and attached to the receipt.
8.2.i. Information about the right to rescind the purchase agreement as required by §§8-1-12.2 and 8-1-12.4 of this Title.
8.3. For the purpose of interpreting this rule, the term “New” means a hearing aid which has not been previously sold at retail or used as a demonstrator.
8.4. If all the requirements of this Section are contained and/or met in a sales agreement, sales contract or purchase order, the agreement, contract or order shall be considered as a receipt for the purposes of this section.
§8-1-9. Advertising.
9.1. All advertisements to the general public offering replicas, descriptive literature on wearable hearing aids, hearing loss, etc., placed by an individual or organization whose business includes the merchandising of hearing aids shall be considered as advertising hearing aids for sale.
9.2. The licensee shall not advertise a particular model or type of hearing aid for sale when purchasers or prospective purchasers responding to the advertisement cannot purchase the advertised model or type, where it is established that the purpose of the advertisement is to obtain prospects for the sale of a different model or type.
9.3. The licensee shall not advertise that the service or advice of a person licensed to practice medicine will be used or made available in the selection, fitting, adjustment, maintenance, or repair of hearing aids when that is not true, nor shall the advertising use the words, “Doctor, “Clinic”, or similar words, abbreviations or symbols which tend to connote the medical profession when the use is not accurate.
9.4. The licensee shall not advertise using the words “Audiologist”, “State Licensed Certified”, “State Registered”, “State Certified”, “State Approved”, or any other term, abbreviation, or symbol when it would falsely give the impression that service is being provided by persons holding a degree in audiology, or trained in clinical audiology, or that the licensee’s service has been recommended by the state when that is not the case. The term “Certified Member” may be used when the certification has been granted by the National Hearing Aid Society: Provided, that it is made clear that the certification is granted by the National Hearing Aid Society and not by any college, university, or agency of this state.
9.5. The licensee shall not advertise using a manufacturer’s name or trademark which would imply that a relationship exists with that manufacturer when in fact it does not.
9.6. In evaluating advertising, the Board may use all the available criteria (such as the regulations of the Federal Trade Commission, the code of ethics of the National Hearing Aid Society, the Hearing Aid Industry Conference, and the West Virginia Hearing Aid Society) and may regard a violation of any of these criteria as unethical conduct.
9.7. The hearing aid dealer must prominently display the following advisement: “Consumers may contact the West Virginia Board of Hearing Aid Dealers 179 Summers St Suite 715, Charleston, WV 25301, if the consumer believes that the hearing aid dealer has not satisfied the terms of the contract.”
§8-1-10. Complaint Procedures.
10.1. A licensee or permittee whose license has been revoked or suspended by the Board, or to whom the Board has refused to issue a license or permit, may appeal the Board’s decision under the Board’s Rule “CONTESTED CASE HEARING PROCEDURE” 8CSR2.
10.2. The Board shall investigate complaints and discipline licensees and permittees under the Board’s Rule “DISCIPLINARY AND COMPLAINT PROCEDURES FOR HEARING AID DEALERS” 8CSR3.
§8-1-11. Causes For The Suspension Or Revocation Of Licenses Or Permits.
11.1. The Board may suspend or revoke the license or permit if the person holding the license or permit:
11.1.a. Violates any provision of the law regulating the licensure of hearing aid dealers and fitters or any violations of the rules of the Board of Hearing Aid Dealers;
11.1.b. Procured a license by fraud or deceit practiced upon the Board;
11.1.c. Obtained any fee or made any sale of a hearing aid by fraud or misrepresentation;
11.1.d. Employed any person without a license or trainee permit or an individual whose license was suspended or revoked to engage in the fitting or sale of hearing aids;
11.1.e. Used, caused or promoted the use of any advertising matter, promotional literature, testimonial, guarantee, warranty, label, grand, insignia, or other representation however disseminated or published which is misleading, deceptive, or untruthful;
11.1.f. If he or she is found by the Board to be a person of habitual intemperance or gross immorality;
11.1.g. Fitted, sold, or attempted to fit or sell, a hearing aid to a person without first utilizing the appropriate procedures and instruments required for the proper fitting of hearing aids;
11.1.h. Engaged in the fitting or sale of hearing aids under a false name or alias;
11.1.i. Engaged in the practice of fitting hearing aids while suffering from a contagious or infectious disease;
11.1.j. Permitted another person to use his or her license; or
11.1.k. Is found by the Board to be guilty of gross incompetence or negligence in the fitting and sale of hearing aids.
§8-1-12. Right to Rescind Purchase Agreement.
12.1. Each person supplied with a hearing aid by a licensed hearing aid dealer shall have the right to return the hearing aid to the dealer within thirty (30) calendar days of receipt and rescind the purchase agreement if the hearing aid does not function properly, cannot be adjusted to satisfactorily compensate for the deficiency in the person’s hearing, or the person is otherwise dissatisfied with the hearing aid.
12.2. The sales receipt shall contain the following wording in type not smaller than that used in the body of the purchase agreement: “ You have the right to return the hearing aid to the dealer from whom it was purchased at any time within thirty (30) days after receipt of the aid and rescind the purchase agreement except for reasonable fitting and examination charges ($125.00 maximum fitting charge), if the aid does not function properly or cannot be adjusted to correct the deficiency in your hearing or is otherwise unsatisfactory. The aid so returned must be without damage.”
12.3. In the event that the prospective purchaser of a hearing aid exercises his or her right to rescind the purchase agreement, the fee to be charged for the cancellation shall not exceed one hundred twenty-five dollars ($125.00) per hearing aid provided. This fee shall include all services performed by the dealer and all materials used in the fitting including the fee for the examination, fitting, training, use of the hearing aid (s), the cost of the ear molds(s) if required, and any batteries provided.
12.4. Hearing aid dealers are required to provide at least one thirty (30) calendar day extension of the right to rescind the purchase agreement so long as the consumer alerts the hearing aid dealer of the hearing aids deficiencies within the first thirty (30) days of purchase and the hearing aid dealer makes an adjustment or advises the consumer to continue using the aid.
12.5. For purposes of computing the thirty (30) calendar day extension to rescind the purchase agreement, the last visit or communication the customer made to the hearing aid dealers within the original thirty (30) day right to rescind period shall constitute the first day of the thirty (30) day extension.
12.6. Unless the purchase agreement provides otherwise, further adjustments or advertisements to continue wearing the hearing aid made within the thirty (30) day extension period will not constitute a new beginning of another thirty(30) day extension period for the consumer to rescind the purchase agreement.
12.7. The hearing aid dealer or fitter may elect to meet the return privilege by renting or leasing the aid to the prospective customer. If the dealer so elects, the rental or leasing agreement shall have a fee not to exceed one hundred twenty-five dollars ($125.00) per hearing aid and the agreement shall specify that the prospective buyer may rescind the rental or lease agreement at any time by returning the hearing aid in good condition and that he or she shall incur no further costs by returning the hearing aid.
§8-1-13. Examination Fees For Licensure
13.1. Each applicant for licensure shall submit payment of one hundred fifty dollars ($150.00) for the Practicum examination. The fee to retest for the Practicum exam shall be seventy five dollars ($75.00). Each applicant shall also submit payment of fifty dollars ($50.00) for the West Virginia jurisprudence examination. The fee to retest for the West Virginia jurisprudence examination shall be fifty dollars ($50.00).
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'8-2-1. General.
1.1. Scope. -- This rule specifies the procedure for the adjudication of contested case hearings before the 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.
'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.
2.2. "Demanding party" means an individual who has been denied a license to practice hearing-aid dealing 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 or fitting issued by the Board and who has been charged by the Board as described in Section 3.4 of these rules.
2.4. ALicense@ means a license or temporary trainee permit issued by the Board pursuant to W. Va. Code '30-26-1 et seq.
2.5. The term "Licensee" means an individual who holds a license to practice hearing-aid dealing or fitting issued by the Board. A Apermittee@ is a person who holds a temporary trainee permit.
2.6. APractice of hearing-aid dealing or hearing-aid fitting@ means the practice of hearing-aid dealing or fitting as defined in W. Va. Code '30-26-1 and includes hearing-aid dealers, hearing-aid fitters and trainees.
'8-2-3. Hearing Procedure.
3.1. Any applicant denied a license or any licensee or permit holder who has had their license suspended 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. shall be entitled to a hearing on the action denying or suspending such license. Such hearing shall be in a 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. When the chair of the Board or his or her authorized designee is presented with such a demand for a hearing, he or she shall schedule a hearing within forty‑five (45) days of receipt by him or her of such written demand, unless postponed to a later date by mutual agreement.
3.4. Charges may be instituted against any licensee or permittee by the Board when probable cause exists for believing that the licensee or permittee may have engaged in conduct, practices or acts in such condition that his or her license should be suspended, revoked or otherwise disciplined for one or 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 information gathered by the Board in the process of investigating such complaint. Charges may also be based upon information received solely through investigative activities undertaken by the Board.
3.5. Charges instituted against a licensee or permittee as described in subsection 3.4 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 practice of hearing-aid dealing or fitting. Such Complaint and Notice of Hearing shall designate the Board as the AComplainant", and shall designate the licensee or permittee 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. Such Complaint and Notice of Hearing shall designate the demanding party as the "Complainant@ and shall designate the Board as the ARespondent"; shall set out the substance of each and every reason that the Board has denied the demanding party a license or permit 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 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, 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.
3.10. 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.
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, the rules of evidence as applied in civil cases in the circuit courts of this state shall be followed. 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 deemed appropriate by the Board and, when appropriate, may cross‑examine witnesses called by the Board in support of the charges or in defense of its decision to deny licensure or a permit.
3.10.7. The hearing shall be held at such time and place as is designated by the Board, but no hearing shall be conducted unless and until at least thirty (30) days written notice thereof has been 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 wife or her husband, 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, by leaving such notice posted at the front door of such place of abode; or if he or she does not reside in 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. 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 testified.
3.10.10. The hearing shall be conducted by a quorum of the Board or hearing examiner appointed by 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 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 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.
3.10.14. Where a hearing is held upon demand under the provisions of subsections 3.1, 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 deny a permit or in support of the charges instituted against a licensee or permittee; may present such 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 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 motion could not have been ascertained earlier. Motions for continuance filed prior to the date of hearing shall 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) days before the hearing. Prehearing motions shall be heard at a prehearing conference 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. All testimony, evidence, arguments and rulings on the admissibility of testimony and evidence shall 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 the motion 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 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 be provided to all members 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. Evidentiary depositions may be taken and read or otherwise included into evidence as in civil actions 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. Any party requesting the issuance of subpoenas duces tecum shall see that they are properly served in accordance with W. Va. Code '29A‑5‑1(b)
'8‑2‑9. Orders.
9.1. Any final order entered by the Board following a hearing conducted 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 within forty‑five (45) 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.
9.2. The findings of fact and conclusions of law must be approved by a majority of the Board either by a 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.
'8-3-1. General.
1.1. Scope. -- This rule specifies a procedure for the investigation and resolution of complaints against hearing-aid dealers, hearing-aid fitters and temporary trainee permittees.
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.
'8-3-2. Application.
This rule applies to all licensed hearing-aid dealers, hearing-aid fitters and trainees.
'8-3-3. Definitions.
The following words and phrases as used in this rule have the following meanings, unless the context otherwise requires:
3.1 AApplicant@ means any person making application for an original or renewal license or a temporary trainee permit pursuant to W. Va. Code '30-26-1 et seq.
3.2. ABoard@ means the West Virginia Board of Hearing-Aid Dealers.
3.3. ALicense@ means a license or temporary trainee permit issued by the Board pursuant to W. Va. Code '30-26-1 et seq.
3.4. AHearing-aid dealer or hearing-aid fitter@ means a person who practices the dealing in or fitting of hearing aids. Hearing-aid dealers, hearing-aid fitters and trainees are defined in W. Va. Code '30-26-1.
3.5. AEthics investigator@ means a person or board committee member licensed to practice hearing-aid dealing in this state, and who is hired by the Board or who may be a board committee for the purpose of reviewing complaints against hearing-aid dealers, hearing-aid fitters and trainees.
'8-3-4. Causes for Denial, Probation, Limitation, Discipline, Suspension or Revocation of Licenses of Hearing-Aid Dealers, Hearing-Aid Fitters or Trainees.
The Board may deny an application for license, place a licensee on probation, limit or restrict a license, suspend a license or revoke any license issued by the Board, upon satisfactory proof that a licensee has been convicted of a felony or is, in his or her professional capacity, engaged in conduct, practices or acts constituting professional negligence or a willful departure from accepted standards of professional conduct or committed other acts in violation of W. Va. Code '30‑26-1 et seq. or the rules of the Board.
'8-3-5. Disposition of Complaints.
5.1. Any person, firm, corporation, member of the Board, or public officer may make a complaint to the Board which charges a hearing-aid dealers, hearing-aid fitter, trainee or applicant with a violation of W. Va. Code '30-26-1 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. In addition to describing the alleged violation which prompted the complaint, the complaint should contain the following:
5.1.1. The name and address of the hearing-aid dealer, hearing-aid fitter, trainee or applicant against whom the complaint is lodged;
5.1.2. The date of the transaction or fitting;
5.1.3. The name of any person who may have seen the person after the alleged incident; and,
5.1.4. The name of the business where the incident took place.
5.2. A complaint against a hearing-aid dealer, hearing-aid fitter, trainee or applicant shall allege that such person has been convicted of a felony or is, in his or her professional capacity, engaging in conduct, practices or acts constituting professional negligence or a willful departure from accepted standards of professional conduct or committed other improper acts in violation of W. Va. Code '30‑26-1 et seq. or the rules of the Board.
5.3. 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.
5.4. The Board shall maintain a complaint log which records the receipt of each complaint, its nature and its disposition.
5.5. The Board shall maintain a separate file on each complaint received, and each file shall have a number assigned to it.
5.6. Upon receipt of a complaint, the Board shall issue one of the following acknowledgments to the complainant:
5.6.1. That the matter will be reviewed by the Board;
5.6.2. That the complaint is outside the jurisdiction of the Board, with suggestions as to how the complainant might best obtain a resolution of his or her problem; or,
5.6.3. That more information will be required in order to adequately review the individual complaint.
5.7. The Board shall send a copy of the complaint, including any supporting documentation, by certified mail to the licensee or permittee or applicant in question for his or her written comment, and he or she 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.
5.8. Requests for comment on complaints sent to licensees, permittees or applicants shall be considered properly served when sent to their last known address. It is the responsibility of the licensee or permittee or applicants to keep the Board informed of his or her current address.
5.9. Upon receipt of a licensee=s or applicant=s comments in response to a complaint, the Board shall promptly send a copy of the same, including any supporting documentation, to the complainant.
5.10. After receipt and review of a complaint, unless the complaint is determined to fall within the provisions of sub-division 5.6. of this rule, the Board shall cause to be conducted any reasonable inquiry or investigation it considers necessary to determine the truth and the validity of the allegations set forth in the complaint. The review of complaints or investigation thereof may, at the discretion of the Board, be assigned to a committee of the Board.
5.11. At any point in its investigation of a complaint the Board may, at its discretion, assign the matter to an ethics investigator for review and investigation.
5.12. Upon receipt of a complaint the ethics investigator or investigating committee shall, within sixty (60) days, review and investigate the same and provide the Board with a report. 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 a statement of the ethics investigator=s findings and recommendations. The ethics investigator or committee shall, upon request, be afforded an opportunity to have an investigation interview with the licensee, permittee or applicant in question or other involved parties, a report of which shall be placed in the investigation file.
5.13. To facilitate the disposition of a complaint, the Board or the investigating committee 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 Board or the committee 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 without the consent of all parties to the hearing. No prejudice shall attach for failure to attend a conference pursuant to a request.
5.14. The Board, the investigating committee or chairperson may issue subpoenas and subpoenas duces tecum to complete the Board=s investigation and to determine the truth or validity of complaints. The ethics investigator may request the Board or its president to issue a subpoena or subpoena duces tecum . Any such request shall be accompanied by a brief statement specifying the necessity for the same.
5.15. 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 hearing-aid dealer, hearing-aid fitter or permittee 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 ethics investigator, the committee or ethics investigator shall make their respective findings and recommendations to the Board prior to the Board dismissing the complaint.
'8-3-6. Contested Case Hearings.
6.1. The Board may refuse to renew a license or suspend a license if it determines there is probable cause to believe that hearing-aid dealer, hearing-aid fitter or trainee=s conduct, practices or acts constitute an immediate danger to the public.
'8-3-7. Appeals.
7.1. Any applicant who has had his or her application for a license denied by order of the Board may appeal the order within thirty (30) days of that action in accordance with the contested case hearing procedures set forth in W. Va. Code '29A-6-1 et seq. and the rules of the Board: Provided, that the appeal shall not include cases in which the Board denies a license or permit after an examination to test the knowledge or the ability of the applicant where the controversy concerns whether the examination was fair or whether the applicant passed the examination.
§8-4-1. General.
1.1. Scope. -- This rule establishes procedures for waiving the initial licensure fee for low-income individuals and military personnel and their spouses.
1.2. Authority. -- W. Va. Code §30-1-23, and W. Va. Code §30-26-3.
1.3. Filing Date. -- April 28, 2020.
1.4. Effective Date. -- April 30, 2020.
1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon the expiration of April 30, 2030.
§8-4-2. Definitions.
2.1. "Board" means the West Virginia Board of Hearing Aid Dealers.
2.2."Initial licensure fee" means the licensure fee or fees that an applicant must normally pay to obtain a license for the practice of hearing aid dealing, if the applicant is being licensed as a hearing aid dealer in West Virginia for the first time.
2.3."Local labor market" means every county in West Virginia, and any county outside of West Virginia if any portion of that county is within 50 miles of the border of West Virginia, as defined in W.Va. Code §21-1C-2
2.4."Low-income individual" means an individual in the local labor market whose household adjusted gross income is below 130 percent of the federal poverty line. This term also includes a person enrolled in a state or federal public assistance program including, but not limited to, the Temporary Assistance for Needy Families Program, Medicaid, or the Supplemental Nutrition Assistance Program.
2.5. "Military families" means any person or the spouse of a person who serves as an active member of the armed forces of the United States, the National Guard, or a reserve component as described in 38 U. S. C. §101,or who is an honorably discharged veterans of those force. This term also includes surviving spouses of deceased service members or honorably discharged veterans who have not remarried.
§8-4-3. Request for Waiver of Initial Licensure Fee.
3.1. Low-income individuals may request a waiver of the initial licensure fee by submitting, with their completed license application, a low-income waiver of initial licensure fee form, as provided by the Board, and all documentation of eligibility for the waiver, as prescribed by this rule. The Board shall review the low-income waiver of initial licensure fee form and issue a decision regarding eligibility for the initial licensure fee waiver within 30 days of receipt of the completed application and form.
3.2. Military families may request a waiver of the initial licensure fee by submitting with their completed license application a military service verification form as provided by the Board, and all documentation of eligibility for the waiver, as prescribed by this rule. The Board shall review the military service verification form and issue a decision regarding eligibility for the initial licensure fee waiver within 30 days of receipt of the completed application and form.
3.3. Upon determining that an applicant is eligible to obtain a license, the Board shall waive the initial licensure fee if the applicant qualifies as a “low-income individual” or as an individual within the class “military families” as defined in this rule.
§8-4-4. Required Documentation for Waiver of Initial Licensure Fees
4.1. Individuals requesting an initial licensure fee waiver for low-income individuals or military families shall submit, with their license application and their waiver request form, the appropriate documentation as specified in this section.
4.2. To establish low- income eligibility for an initial licensure fee waiver, an applicant shall submit to the Board a federal tax return or documentation of eligibility for one of the following public benefit programs:
4.2.1. The Temporary Assistance for Needy Families Program;
4.2.2. Medicaid; or
4.2.3. The Supplemental Nutrition Assistance Program.
4.3. To establish military family eligibility for a waiver of the initial licensure fee, an applicant shall submit to the Board proof of qualifying military service and if applicable, proof of eligibility as a qualifying spouse or surviving spouse, as follows:
4.3.1. The service members DD-214 form;
4.3.2. The service members NGB-22 form;
4.3.3. The service members DD-1300 form;
4.3.4. A copy of the service member’s current military orders; or
4.3.5. Other official military documentation, determined to be appropriate by the Board, demonstrating the service member’s qualifying past or current military service; and
4.3.6. For a service member’s spouse or surviving spouse, a copy of the certificate of marriage between the spouse and qualifying service member and when applicable, the qualifying service member’s certificate of death.
4.4. Honorably discharged service members applying for a waiver of the initial licensure fee shall submit to the Board a DD-214 form, an NGB-22 form or other official military documentation, determined to be appropriate by the Board, showing that the applicant has been honorably discharged from military service.