DAR File No. 27401

Commerce, Occupational and Professional Licensing

R156-46b

Division Utah Administrative Procedures Act Rules

NOTICE OF PROPOSED RULE

DAR File No.: 27401
Filed: 09/02/2004, 01:39
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule filing is to update the classification of the Division's adjudicative proceedings under the Utah Administrative Procedures Act (UAPA) to comport with existing agency practices, as well as the requirements of UAPA, and to make technical amendments.

Summary of the rule or change:

In Section R156-46b-103, updated a statute citation. In Section R156-46b-202, deleted the following informal adjudicative proceedings initiated by a request for agency action: approval or denial of application to take a licensure examination; disqualification of examination results for cheating on examinations; and request for rescoring of examination. It was determined that these types of proceedings do not constitute independent adjudicative proceedings, but rather merge into a licensure application request for agency action. An informal adjudicative proceeding initiated by a request for agency action was inadvertently deleted from this rule previously, specifically, boards of appeal under Subsection 58-56-8(3) and is being added in this filing. The subsections have been renumbered as necessary due to the deletions and addition. In Section R156-46b-403, updated rule sections referenced due to changes made in Section R156-46b-202 and deleted disqualification of examination results for cheating upon an examination regarding when an evidentiary hearing is held.

State statutory or constitutional authorization for this rule:

Subsections 58-1-106(1)(a) and 63-46b-1(6)

Anticipated cost or savings to:

the state budget:

The Division will incur minimal costs, approximately $40, to reprint the rule once the proposed amendments are made effective. Any costs incurred will be absorbed in the Division's current budget. Very few of the types of requests for agency action being deleted have ever been received by the Division. When they are received, they will be consolidated into a single adjudicative proceeding. Therefore, the Division anticipates no further costs beyond the printing costs identified above.

local governments:

Proposed amendments do not apply to local governments, therefore there are no costs or savings.

other persons:

The Division does not anticipate any costs, beyond a normal application fee required to submit an application for licensure, or savings as a result of these proposed amendments. Applicants for licensure would ultimately be required to file an application for licensure and pay the associated application fee regardless in order to obtain licensure. The proposed amendments merely eliminate the opportunity for a person to address in a piecemeal fashion issues associated with qualifications for licensure, in particular herein, the examination component. It does force an applicant to submit an application for licensure to obtain a decision, but this shouldn't be considered an additional cost.

Compliance costs for affected persons:

The Division does not anticipate any costs, beyond a normal application fee required to submit an application for licensure, as a result of these proposed amendments. Applicants for licensure would ultimately be required to file an application for licensure and pay the associated application fee regardless in order to obtain licensure. The proposed amendments merely eliminate the opportunity for a person to address in a piecemeal fashion issues associated with qualifications for licensure, in particular herein, the examination component. It does force an applicant to submit an application for licensure to obtain a decision, but this shouldn't be considered an additional cost.

Comments by the department head on the fiscal impact the rule may have on businesses:

No fiscal impact to businesses is foreseen as a result of this rule filing, which clarifies and simplifies adjudicative proceedings before the Division of Occupational and Professional Licensing. Klarice A. Bachman, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

W. Ray Walker at the above address, by phone at 801-530-6256, by FAX at 801-530-6511, or by Internet E-mail at raywalker@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/01/2004

This rule may become effective on:

11/02/2004

Authorized by:

J. Craig Jackson, Director

RULE TEXT

R156. Commerce, Occupational and Professional Licensing.

R156-46b. Division Utah Administrative Procedures Act Rules.

R156-46b-103. Authority - Purpose.

These rules are adopted by the division under the authority of Title 63, Chapter 46b, Subsection 58-1-108(1), and Subsection 58-1-106(1)(a). The purposes of these rules include:

(a) classifying division adjudicative proceedings;

(b) clarifying the identity of presiding officers at division adjudicative proceedings; and

(c) defining procedures for division adjudicative proceedings which are consistent with the requirements of Titles 58 and 63 and Rule R151-46b.

R156-46b-202. Informal Adjudicative Proceedings.

(1) The following adjudicative proceedings initiated by a request for agency action are classified as informal adjudicative proceedings:

(a) [approval or denial of application to take a licensure examination;

(b) disqualification of examination results for cheating on examination;

(c) request for rescoring of examination;

(d) ]approval of application for initial licensure, renewal or reinstatement of licensure, or relicensure;

([e]b) denial of application for initial licensure or relicensure;

([f]c) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308(6)(a);

([g]d) denial of application for reinstatement of restricted, suspended, or probationary licensure during the term of the restriction, suspension, or probation;

([h]e) approval or denial of application for inactive or emeritus licensure status;

(f) board of appeal under Subsection 58-56-8(3);

([i]g) approval or denial of claims against the Residence Lien Recovery Fund created under Title 38, Chapter 11, except those in which the claimant is precluded from obtaining the required civil judgment or administrative order against the nonpaying party involved in the claim because the nonpaying party filed bankruptcy;

([j]h) payment of approved claims against the Residence Lien Recovery Fund described in Subparagraph ([i]g);

([k]i) approval or denial of request to surrender licensure;

([l]j) approval or denial of request for entry into diversion program under Section 58-1-404;

([m]k) matters relating to diversion program;

([n]l) contested citation hearing held in accordance with Subsection 58-55-503(4)(b);

([o]m) approval or denial of request for modification of disciplinary order;

([p]n) declaratory order determining the applicability of statute, rule or order to specified circumstances, when determined by the director to be conducted as an informal adjudicative proceeding;

([q]o) approval or denial of request for correction of procedural or clerical mistakes;

([r]p) approval or denial of request for correction of other than procedural or clerical mistakes; and

([s]q) all other requests for agency action permitted by statute or rule governing the Division not specifically classified as formal adjudicative proceedings in Subsection R156-46b-201(1).

(2) The following adjudicative proceedings initiated by a notice of agency action or request for agency action are classified as informal adjudicative proceedings:

(a) disciplinary proceeding seeking exclusively the issuance of a private reprimand;

(b) nondisciplinary proceeding which results in cancellation of licensure;

(c) disciplinary sanctions imposed in a memorandum of understanding with an applicant for licensure; and

(d) termination of diversion agreements.

R156-46b-403. Evidentiary Hearings in Informal Adjudicative Proceedings.

(1) Evidentiary hearings are not required for informal division adjudicative proceedings unless required by statute or rule, or permitted by rule and requested by a party within the time prescribed by rule.

(2) Unless otherwise provided, a request for an evidentiary hearing permitted by rule must be submitted in writing no later than 20 days following the issuance of the notice of agency action if the proceeding was initiated by the division, or together with the request for agency action if the proceeding was not initiated by the division.

(3) Evidentiary hearings are required for the following informal proceedings:

(a) R156-46b-202(1)([n]l), contested citation hearing held in accordance with Subsection 58-55-503(4)(b); and

(b) R156-46b-202(1)([o]f), board of appeal held in accordance with Subsection 58-56-8(3).

(4) Evidentiary hearings are permitted for the following informal proceedings:

(a) [R156-46b-202(1)(b), disqualification of examination results for cheating upon an examination;

(b) ]R156-46b-202(1)([m]k), matters relating to a diversion program; and

([c]b) R156-46b-202(2)(a), issuance of a private reprimand.

(5) Unless otherwise agreed by the parties, no evidentiary hearing shall be held in an informal adjudicative proceeding unless timely notice of the hearing has been served upon the parties as required by Subsection 63-46b-5(1)(d). Timely notice means service of a Notice of Hearing upon all parties not later than ten days prior to any scheduled evidentiary hearing.

(6) Parties shall be permitted to testify, present evidence, and comment on the issues at an evidentiary hearing in a division informal adjudicative proceeding.

KEY: administrative procedures, government hearings, occupational licensing

[November 3, 2003]2004

Notice of Continuation June 11, 2001

63-46b-1(6)

58-1-106(1)(a)

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For questions regarding the content or application of this rule, please contact W. Ray Walker at the above address, by phone at 801-530-6256, by FAX at 801-530-6511, or by Internet E-mail at raywalker@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.