DAR File No. 28254
Commerce, Occupational and Professional Licensing
R156-1
General Rules of the Division of Occupational and Professional Licensing
NOTICE OF PROPOSED RULE
DAR File No.: 28254
Filed: 09/22/2005, 02:56
Received by: NL
RULE ANALYSIS
Purpose of the rule or reason for the change:
The purposes of this filing include: 1) adding an additional licensee list exemption to facilitate and streamline the implementation of S.B. 74; 2) move provisions clarifying the filing date of applications for licensure, clarifying the requirements for licensure that are applicable to applications for licensure, clarifying the issuance date of licensure, and specifying the term of licensure for licenses issued to applicants for activation of an inactive license, reinstatement of licensure and relicensure, from policy and procedure to rule; 3) establishing a renewal date for direct-entry midwives to facilitate the implementation of H.B. 25; 4) moving the renewal dates forward for various professions to better balance and time the two-year renewal cycle; 5) removing an unnecessary definition of unprofessional conduct; and 6) making technical changes. (DAR NOTE: S.B. 74 (2005) is found at UT L 2005 Ch 153, and was effective 05/02/2005. H.B. 25 (2005) is found at UT L 2005 Ch 299, and was effective 05/02/2005.)
Summary of the rule or change:
A summary of this filing is as follows: 1) adds an additional licensee list exemption allowing for lists containing home telephone numbers and home addresses to be provided in response to a request from a person preparing for, participating in, or responding to a national, state, or local emergency; a public health emergency; or a declaration by the President of the United States or other federal official requesting public health-related activities; 2) clarifies the filing date of applications for licensure; 3) clarifies the requirements for licensure that are applicable to applications for licensure; 4) clarifies the issuance date of licensure; 5) specifies the term of licensure for licenses issued to applicants for activation of an inactive license, for reinstatement of licensure, and for relicensure issued during the last four months of a renewal cycle; 6) establishes a renewal date for direct entry midwives; 7) moves renewal dates forward a few months for engineers, geologists, land surveyors, pharmacy, building inspectors, contractors, electricians, plumbers, burglar alarm, deception detection, and contract security professions; 8) removes failure to comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy rules as a definition of unprofessional conduct because: 1) it appears to make the Division the enforcement agency for HIPAA, when we have not been given funding or a directive to do so; and 2) it duplicates a more encompassing definition at Subsection 58-1-501(2)(b); and 9) makes technical changes, including removing references to the term "assistant director", a title and position that no longer exists, and changing the title "enforcement counsel" to "regulatory and compliance officer" or "administrative law judge", respectively. The latter is the same person(s) with a redesignated title.
State statutory or constitutional authorization for this rule:
Section 58-1-308, and Subsections 58-1-106(1)(a) and 58-1-501(4)
Anticipated cost or savings to:
the state budget:
The state budget will see an impact with regard to moving the renewal date forward for selected professions. The same renewal fees will be collected but a few months later. In essence, licensees will receive a several month extension of their current license at no cost. In the case of building inspector, contractor, electrician, plumber, burglar alarm, deception detection, and security professions, we are moving the renewal cycle away from the end of the fiscal year, which currently causes renewal fees to be collected across two fiscal years. At the outset, this will cause a spike downward and upward in fee revenues from one fiscal year to the next, as we move away from a fiscal year-end renewal date. The Division will also incur minimal costs of approximately $100 to reprint the rule once the proposed amendments are made effective. Any printing costs incurred will be absorbed in the Division's current budget. The Division will also incur a one time cost of approximately $12,500 (50,000 licensees at $0.25 bulk mail rate) to mail a notice to the affected professions notifying them of the new expiration date of their licenses. This mailing cost will be absorbed in the Division's current budget.
local governments:
Proposed amendments do not apply to local governments; therefore no costs or savings are anticipated. Proposed amendments only apply to licensees and potential licensees in regulated professions of the Division.
other persons:
The Division does not anticipate any costs or savings to the licensees or potential licensees in regulated professions of the Division as a result of these proposed amendments. Licensees in certain professions identified above will receive a several month extension of licensure at no cost as noted above.
Compliance costs for affected persons:
The Division does not anticipate any costs or savings to the licensees or potential licensees in regulated professions of the Division as a result of these proposed amendments. Licensees in certain professions identified above will receive a several month extension of licensure at no cost as noted above.
Comments by the department head on the fiscal impact the rule may have on businesses:
This rule filing makes various technical and clarifying amendments. In addition, the rule filing codifies and clarifies existing practice as to the filing date, the applicable law and the issuance date of applications. No fiscal impact to businesses is anticipated as a result of such technical and clarifying provisions. Another amendment permits the release of information regarding licensees as necessary in certain emergency situations as identified in S.B. 74, 2005 Legislative Session. No additional fiscal impact to businesses is foreseen beyond those addressed in S.B. 74. Jason P. Perry, Acting Executive Director
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:
Occupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY UT 84111-2316
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:
11/14/2005
This rule may become effective on:
11/15/2005
Authorized by:
J. Craig Jackson, Director
RULE TEXT
R156. Commerce, Occupational and Professional Licensing.
R156-1. General Rules of the Division of Occupational and Professional Licensing.
R156-1-102. Definitions.
In addition to the definitions in Title 58, as used in Title 58 or these rules:
(1) "Active and in good standing" means a licensure status which allows the licensee full privileges to engage in the practice of the occupation or profession subject to the scope of the licensee's license classification.
(2) "Aggravating circumstances" means any consideration or factors that may justify an increase in the severity of an action to be imposed upon an applicant or licensee. Aggravating circumstances include:
(a) prior record of disciplinary action, unlawful conduct, or unprofessional conduct;
(b) dishonest or selfish motive;
(c) pattern of misconduct;
(d) multiple offenses;
(e) obstruction of the disciplinary process by intentionally failing to comply with rules or orders of the Division;
(f) submission of false evidence, false statements or other deceptive practices during the disciplinary process including creating, destroying or altering records after an investigation has begun;
(g) refusal to acknowledge the wrongful nature of the misconduct involved, either to the client or to the Division;
(h) vulnerability of the victim;
(i) lack of good faith to make restitution or to rectify the consequences of the misconduct involved;
(j) illegal conduct, including the use of controlled substances; and
(k) intimidation or threats of withholding clients' records or other detrimental consequences if the client reports or testifies regarding the unprofessional or unlawful conduct.
(3) "Branching questionnaire", as used in Section R156-1-601, means an adaptive, progressive inquiry used by a physician to determine a health history and assessment, and serves as the basis for a diagnosis.
(4) "Cancel" or "cancellation" means nondisciplinary action by the division to rescind, repeal, annul, or void a license issued in error. Such action includes rescinding a license issued to an applicant whose payment of the required application fee is dishonored when presented for payment, or who has been issued a conditional license pending a criminal background check and the check cannot be completed due to the applicant's failure to resolve an outstanding warrant or to submit acceptable fingerprint cards.
(5) "Charges" means the acts or omissions alleged to constitute either unprofessional or unlawful conduct or both by a licensee, which serve as the basis to consider a licensee for inclusion in the diversion program authorized in Section 58-1-404.
(6) "Denial of licensure" means action by the division refusing to issue a license to an applicant for initial licensure, renewal of licensure, reinstatement of licensure or relicensure.
(7) "Disciplinary action" means adverse licensure action by the division under the authority of Subsections 58-1-401(2)(a) through (2)(b).
(8) "Diversion agreement" means a formal written agreement between a licensee, the division, and a diversion committee, outlining the terms and conditions with which a licensee must comply as a condition of entering in and remaining under the diversion program authorized in Section 58-1-404.
(9) "Diversion committees" mean diversion advisory committees authorized by Subsection 58-1-404(2)(a)(i) and created under Subsection R156-1-404a.
(10) "Duplicate license" means a license reissued to replace a license which has been lost, stolen, or mutilated.
(11) "Emergency review committees" mean emergency adjudicative proceedings review committees created by the division under the authority of Subsection 58-1-108(2).
(12) "Expire" or "expiration" means the automatic termination of a license which occurs:
(a) at the expiration date shown upon a license if the licensee fails to renew the license before the expiration date; or
(b) prior to the expiration date shown on the license:
(i) upon the death of a licensee who is a natural person;
(ii) upon the dissolution of a licensee who is a partnership, corporation, or other business entity; or
(iii) upon the issuance of a new license which supersedes an old license, including a license which:
(A) replaces a temporary license;
(B) replaces a student or other interim license which is limited to one or more renewals or other renewal limitation; or
(C) is issued to a licensee in an upgraded classification permitting the licensee to engage in a broader scope of practice in the licensed occupation or profession.
(13) "Inactive" or "inactivation" means action by the division to place a license on inactive status in accordance with Sections 58-1-305 and R156-1-305.
(14) "Investigative subpoena authority"
means, except as otherwise specified in writing by the director, the division [enforcement
counsel]regulatory and compliance officer, or if the division [enforcement
counsel]regulatory and compliance officer is unable to so serve for
any reason, [the assistant director]a bureau manager designated by
the regulatory and compliance officer, or if both the division [enforcement
counsel]regulatory and compliance officer and the [assistant
director]designated bureau manager are unable to so serve for any
reason, [the]a department [enforcement counsel]administrative
law judge.
(15) "License" means a right or privilege to engage in the practice of a regulated occupation or profession as a licensee.
(16) "Limit" or "limitation" means nondisciplinary action placing either terms and conditions or restrictions or both upon a license:
(a) issued to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure; or
(b) issued to a licensee in place of the licensee's current license or disciplinary status.
(17) "Mitigating circumstances" means any consideration or factors that may justify a reduction in the severity of an action to be imposed upon an applicant or licensee.
(a) Mitigating circumstances include:
(i) absence of prior record of disciplinary action, unlawful conduct or unprofessional conduct;
(ii) absence of dishonest or selfish motive;
(iii) personal, mental or emotional problems provided such problems have not posed a risk to the health, safety or welfare of the public or clients served such as drug or alcohol abuse while engaged in work situations or similar situations where the licensee or applicant should know that they should refrain from engaging in activities that may pose such a risk;
(iv) timely and good faith effort to make restitution or rectify the consequences of the misconduct involved;
(v) full and free disclosure to the client or Division prior to the discovery of any misconduct;
(vi) inexperience in the practice of the occupation and profession provided such inexperience is not the result of failure to obtain appropriate education or consultation that the applicant or licensee should have known they should obtain prior to beginning work on a particular matter;
(vii) imposition of other penalties or sanctions; and
(viii) remorse.
(b) The following factors should not be considered as mitigating circumstances:
(i) forced or compelled restitution;
(ii) withdrawal of complaint by client or other affected persons;
(iii) resignation prior to disciplinary proceedings;
(iv) failure of injured client to complain; and
(v) complainant's recommendation as to sanction.
(18) "Nondisciplinary action" means adverse licensure by the division under the authority of Subsections 58-1-401(1) or 58-1-401(2)(c) through (2)(d).
(19) "Peer committees" mean advisory peer committees to boards created by the legislature in Title 58 or by the division under the authority of Subsection 58-1-203(1)(f).
(20) "Private reprimand" means disciplinary action to formally reprove or censure a licensee for unprofessional or unlawful conduct, with the documentation of the action being classified as a private record.
(21) "Probation" means disciplinary action placing terms and conditions upon a license;
(a) issued to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure; or
(b) issued to a licensee in place of the licensee's current license or disciplinary status.
(22) "Public reprimand" means disciplinary action to formally reprove or censure a licensee for unprofessional or unlawful conduct, with the documentation of the action being classified as a public record.
(23) "Regulatory authority" as used in Subsection 58-1-501(2)(d) means any governmental entity who licenses, certifies, registers, or otherwise regulates persons subject to its jurisdiction, or who grants the right to practice before or otherwise do business with the governmental entity.
(24) "Reinstate" or "reinstatement" means to activate an expired license or to restore a license which is restricted, as defined in Subsection (26)(b), or is suspended, or placed on probation, to a lesser restrictive license or an active in good standing license.
(25) "Relicense" or "relicensure" means to license an applicant who has previously been revoked or has previously surrendered a license.
(26) "Remove or modify restrictions" means to remove or modify restrictions, as defined in Subsection (26)(a), placed on a license issued to an applicant for licensure.
(27) "Restrict" or "restriction" means disciplinary action qualifying or limiting the scope of a license:
(a) issued to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure in accordance with Section 58-1-304; or
(b) issued to a licensee in place of the licensee's current license or disciplinary status.
(28) "Revoke" or "revocation" means disciplinary action by the division extinguishing a license.
(29) "Suspend" or "suspension" means disciplinary action by the division removing the right to use a license for a period of time or indefinitely as indicated in the disciplinary order, with the possibility of subsequent reinstatement of the right to use the license.
(30) "Surrender" means voluntary action by a licensee giving back or returning to the division in accordance with Section 58-1-306, all rights and privileges associated with a license issued to the licensee.
(31) "Temporary license" or "temporary licensure" means a license issued by the division on a temporary basis to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure in accordance with Section 58-1-303.
(32) "Unprofessional conduct" as defined in Title 58 is further defined, in accordance with Subsection 58-1-203(1)(e), in Section R156-1-502.
(33) "Warning or final disposition letters which do not constitute disciplinary action" as used in Subsection 58-1-108(3) mean letters which do not contain findings of fact or conclusions of law and do not constitute a reprimand, but which may address any or all of the following:
(a) division concerns;
(b) allegations upon which those concerns are based;
(c) potential for administrative or judicial action; and
(d) disposition of division concerns.
R156-1-106. Division - Duties, Functions, and Responsibilities.
(1) In accordance with Subsection 58-1-106(2), the following responses to requests for lists of licensees may include multiple licensees per request and may include home telephone numbers and home addresses, subject to the restriction that the addresses and telephone numbers shall only be used by a requester for purposes for which the requester is properly authorized and shall not be sold or otherwise redisclosed by the requester:
(a) responses to requests from another governmental entity, government-managed corporation, a political subdivision, the federal government, another state, or a not-for-profit regulatory association to which the division is a member;
(b) responses to requests from an occupational or professional association, private continuing education organizations, trade union, university, or school, for purposes of education programs for licensees;
(c) responses to a party to a prelitigation proceeding convened by the division under Title 78, Chapter 14;
(d) responses to universities, schools, or
research facilities for the purposes of research;[ and]
(e) responses to requests from licensed health care facilities or third party credentialing services, for the purpose of verifying licensure status for credentialing or reimbursement purposes; and
(f) responses to requests from a person preparing for, participating in, or responding to:
(i) a national, state or local emergency;
(ii) a public health emergency as defined in Section 26-23b-102; or
(iii) a declaration by the President of the United States or other federal official requesting public health-related activities.
(2) In accordance with Subsection 58-1-106(3)(a), the division may deny a request for an address or telephone number of a licensee to an individual who provides proper identification and the reason for the request, in writing, to the division, if the reason for the request is deemed by the division to constitute an unwarranted invasion of privacy or a threat to the public health, safety, and welfare.
(3) In accordance with Subsection 58-1-106(3)(c), proper identification of an individual who requests the address or telephone number of a licensee and the reason for the request, in writing, shall consist of the individual's name, mailing address, and daytime number, if available.
R156-1-109. Presiding Officers.
In accordance with Subsection 63-46b-2(1)(h), Sections 58-1-104, 58-1-106, 58-1-109, 58-1-202, 58-1-203, 58-55-103, and 58-55-201, except as otherwise specified in writing by the director, or for Title 58, Chapter 55, the Construction Services Commission, the designation of presiding officers is clarified or established as follows:
(1) The division regulatory and compliance
officer is designated as the presiding officer for issuance of notices of
agency action and for issuance of notices of hearing issued concurrently with a
notice of agency action or issued in response to a request for agency action,
provided that if the division regulatory and compliance officer is unable to so
serve for any reason, [the assistant director]a bureau manager
designated by the regulatory and compliance officer is designated as the
alternate presiding officer.
(2) Subsections 58-1-109(2) and 58-1-109(4) are clarified with regard to defaults as follows. Unless otherwise specified in writing by the director, or with regard to Title 58, Chapter 55, by the Construction Services Commission, the department administrative law judge is designated as the presiding officer for entering an order of default against a party, for conducting any further proceedings necessary to complete the adjudicative proceeding, and for issuing a recommended order to the director or commission, respectively, determining the discipline to be imposed, licensure action to be taken, relief to be granted, etc.
(3) Except as provided in Subsection (4) or otherwise specified in writing by the director, the presiding officer for adjudicative proceedings before the division are as follows:
(a) Director. The director shall be the presiding officer for:
(i) formal adjudicative proceedings described in Subsections R156-46b-201(1)(f) through (g), and R156-46b-201(2)(a) through (b), however resolved, including stipulated settlements and hearings; and
(ii) informal adjudicative proceedings described in Subsections R156-46b-202(1)(d), (h),(j), (m), (n), (p), and (q), and R156-46b-202(2)(a) through (d), however resolved, including memorandums of understanding and stipulated settlements.
(b) Bureau managers or program coordinators. Except for Title 58, Chapter 55, the bureau manager or program coordinator over the occupation or profession or program involved shall be the presiding officer for:
(i) formal adjudicative proceedings described in Subsections R156-46b-201(1)(a) through (c), provided that any evidentiary hearing requested shall be conducted by the appropriate board who shall be designated as the presiding officer to act as the fact finder at any evidentiary hearing and shall issue a recommended order to the division based upon the record developed at the hearing determining all issues pending before the division to the director for a final order, and R156-46b-201(1)(e). The authority of the presiding officer in formal adjudicative proceedings described in R156-46b-201(1)(e) shall be limited to approval of claims, conditional denial of claims, and final denial of claims based upon jurisdictional defects;
(ii) formal adjudicative proceedings described in Subsection R156-46b-201(1)(h), for purposes of determining whether a request for a board of appeal is properly filed as set forth in Subsections R156-56-105(1) through (4); and
(iii) informal adjudicative proceedings described in Subsections R156-46b-202(1)(a) through (c), (e), (g), (i), (k), and (o).
(iv) At the direction of a bureau manager or program coordinator, a licensing technician or program technician may sign an informal order in the name of the licensing technician or program technician provided the wording of the order has been approved in advance by the bureau manager or program coordinator and provided the caption "FOR THE BUREAU MANAGER" or "FOR THE PROGRAM COORDINATOR" immediately precedes the licensing technician's or program technician's signature.
(c) Contested Citation Hearing Officer. The regulatory and compliance officer or other contested citation hearing officer designated in writing by the director shall be the presiding officer for the adjudicative proceeding described in Subsection R156-46b-202(1)(l).
(d) Uniform Building Code Commission. The Uniform Building Code Commission shall be the presiding officer for the adjudicative proceeding described in Subsection R156-46b-201(1)(f) for convening a board of appeal under Subsection 58-56-8(3), for serving as fact finder at any evidentiary hearing associated with a board of appeal, and for entering the final order associated with a board of appeal. An administrative law judge shall perform the role specified in Subsection 58-1-109(2).
(e) Residence Lien Recovery Fund Advisory Board. The Residence Lien Recovery Fund Advisory Board shall be the presiding officer for adjudicative proceedings described in Subsection R156-46b-201(1)(e) and R156-46b-202(1)(g) that exceed the authority of the program coordinator, as delegated by the board, or are otherwise referred by the program coordinator to the board for action.
(4) Unless otherwise specified in writing by the Construction Services Commission, the presiding officers and process for adjudicative proceedings under Title 58, Chapter 55, are established or clarified as follows:
(a) Commission.
(i) The commission shall be the presiding officer for all adjudicative proceedings under Title 58, Chapter 55, except as otherwise delegated by the commission in writing or as otherwise provided in these rules; provided, however, that all orders adopted by the commission as a presiding officer shall require the concurrence of the director.
(ii) Unless otherwise specified in writing by the commission, the commission is designated as the presiding officer:
(A) for formal adjudicative proceedings described in Subsections R156-46b-201(1)(g) and R156-46b-201(2)(a) through (b), however resolved, including stipulated settlements and hearings;
(B) informal adjudicative proceedings described in Subsections R156-46b-202(1)(d), (m), (n), (p), and (q), and R156-46b-202(2)(a) and (c), however resolved, including memorandums of understanding and stipulated settlements;
(C) to serve as fact finder and adopt orders in formal evidentiary hearings associated with adjudicative proceedings involving persons licensed as or required to be licensed under Title 58, Chapter 55; and
(D) to review recommended orders of a board, an administrative law judge, or other designated presiding officer who acted as the fact finder in an evidentiary hearing involving a person licensed or required to be licensed under Title 58, Chapter 55, and to adopt an order of its own. In adopting its order, the commission may accept, modify or reject the recommended order.
(iii) If the commission is unable for any reason to act as the presiding officer as specified, it shall designate another presiding officer in writing to so act.
(iv) Orders of the commission shall address all issues before the commission and shall be based upon the record developed in an adjudicative proceeding conducted by the commission. In cases in which the commission has designated another presiding officer to conduct an adjudicative proceeding and submit a recommended order, the record to be reviewed by the commission shall consist of the findings of fact, conclusions of law, and recommended order submitted to the commission by the presiding officer based upon the evidence presented in the adjudicative proceeding before the presiding officer.
(v) The commission or its designee shall submit adopted orders to the director for the director's concurrence or rejection within 30 days after it receives a recommended order or adopts an order, whichever is earlier. An adopted order shall be deemed issued and constitute a final order upon the concurrence of the director.
(vi) If the director or his designee refuses to concur in an adopted order of the commission or its designee, the director or his designee shall return the order to the commission or its designee with the reasons set forth in writing for the nonconcurrence therein. The commission or its designee shall reconsider and resubmit an adopted order, whether or not modified, within 30 days of the date of the initial or subsequent return, provided that unless the director or his designee and the commission or its designee agree to an extension, any final order must be issued within 90 days of the date of the initial recommended order, or the adjudicative proceeding shall be dismissed. Provided the time frames in this subsection are followed, this subsection shall not preclude an informal resolution such as an executive session of the commission or its designee and the director or his designee to resolve the reasons for the director's refusal to concur in an adopted order.
(vii) The record of the adjudicative proceeding shall include recommended orders, adopted orders, refusals to concur in adopted orders, and final orders.
(viii) The final order issued by the commission and concurred in by the director may be appealed by filing a request for agency review with the executive director or his designee within the department.
(ix) The content of all orders shall comply with the requirements of Subsection 63-46b-5(1)(i) and Sections 63-46b-10 and 63-46b-11.
(b) Director. Unless otherwise specified in writing by the commission, the director is designated as the presiding officer for conducting informal adjudicative proceedings specified in R156-46b-202(2)(b).
(c) Administrative Law Judge. Unless otherwise specified in writing by the commission, the department administrative law judge is designated as the presiding officer to conduct formal adjudicative proceedings before the commission and its advisory boards, as specified in Subsection 58-1-109(2).
(d) Bureau Manager. Unless otherwise specified in writing by the commission, the responsible bureau manager is designated as the presiding officer for conducting:
(i) formal adjudicative proceedings specified in Subsections R156-46b-201(1)(a) through (c), provided that any evidentiary hearing requested shall be conducted by the appropriate board or commission who shall be designated as the presiding officer to act as the fact finder at any evidentiary hearing and to adopt orders as set forth in these rules; and
(ii) informal adjudicative proceedings specified in Subsections R156-46b-202(1)(a) through (c), (e), (i), and (o).
(iii) At the direction of a bureau manager, a licensing technician may sign an informal order in the name of the licensing technician provided the wording of the order has been approved in advance by the bureau manager and provided the caption "FOR THE BUREAU MANAGER" immediately precedes the licensing technician's signature.
(e) Plumbers Licensing Board. Except as set forth in Subsection (c) or as otherwise specified in writing by the commission, the Plumbers Licensing Board is designated as the presiding officer to serve as the fact finder and to issue recommended orders to the commission in formal evidentiary hearings associated with adjudicative proceedings involving persons licensed as or required to be licensed as plumbers.
(f) Electricians Licensing Board. Except as set forth in Subsection (c) or as otherwise specified in writing by the commission, the Electricians Licensing Board is designated as the presiding officer to serve as the fact finder and to issue recommended orders to the commission in formal evidentiary hearings associated with adjudicative proceedings involving persons licensed as or required to be licensed as electricians.
(g) Alarm System Security and Licensing Board. Except as set forth in Subsection (c) or as otherwise specified in writing by the commission, the Alarm System Security and Licensing Board is designated as the presiding officer to serve as the fact finder and to issue recommended orders to the commission in formal evidentiary hearings associated with adjudicative proceedings involving persons licensed as or required to be licensed as alarm companies or agents.
R156-1-301a. Application for Licensure - Filing Date - Applicable Requirements for Licensure - Issuance Date.
(1) The filing date for an application for licensure shall be the postmark date of the application or the date the application is received and date stamped b the division, whichever is earlier.
(2) Except as otherwise provided by statute, rule or order, the requirements for licensure applicable to an application for licensure shall be the requirements in effect on the filing date of the application.
(3) The issuance date for a license issued to an applicant for licensure shall be as follows:
(a) the date the approval is input into the division's electronic licensure database for applications submitted and processed manually; or
(b) the date printed on the verification of renewal certificate for renewal applications submitted and processed electronically via the division's Internet Renewal System.
R156-1-305. Inactive Licensure.
(1) In accordance with Section 58-1-305, except as provided in Subsection (2), a licensee may not apply for inactive licensure status.
(2) The following licenses issued under Title 58 that are active in good standing may be placed on inactive licensure status:
(a) advanced practice registered nurse;
(b) audiologist;
(c) certified nurse midwife;
(d) certified public accountant emeritus;
(e) certified registered nurse anesthetist;
(f) certified court reporter;
(g) certified social worker;
(h) chiropractic physician;
(i) clinical social worker;
(j) contractor;
(k) deception detection examiner;
(l) deception detection intern;
(m) dental hygienist;
(n) dentist;
(o) direct-entry midwife;
([o]p) genetic counselor;
([p]q) health facility administrator;
([q]r) hearing instrument specialist;
([r]s) licensed substance abuse counselor;
([s]t) marriage and family therapist;
([t]u) naturopath/naturopathic physician;
([u]v) optometrist;
([v]w) osteopathic physician and surgeon;
([w]x) pharmacist;
([x]y) pharmacy technician;
([y]z) physician assistant;
([z]aa) physician and surgeon;
([aa]bb) podiatric physician;
([bb]cc) private probation provider;
([cc]dd) professional counselor;
([dd]ee) psychologist;
([ee]ff) radiology practical technician;
([ff]gg) radiology technologist;
([gg]hh) security personnel;
([hh]ii) speech-language pathologist; and
([ii]jj) veterinarian.
(3) Applicants for inactive licensure shall apply to the division in writing upon forms available from the division. Each completed application shall contain documentation of requirements for inactive licensure, shall be verified by the applicant, and shall be accompanied by the appropriate fee.
(4) If all requirements are met for inactive licensure, the division shall place the license on inactive status.
(5) A license may remain on inactive status indefinitely except as otherwise provided in Title 58 or rules which implement Title 58.
(6) An inactive license may be activated by requesting activation in writing upon forms available from the division. Unless otherwise provided in Title 58 or rules which implement Title 58, each reactivation application shall contain documentation that the applicant meets current renewal requirements, shall be verified by the applicant, and shall be accompanied by the appropriate fee.
(7) An inactive licensee whose license is activated during the last four months of a renewal cycle shall, upon payment of the appropriate fees, be licensed for a full renewal cycle plus the period of time remaining until the impending renewal date, rather than being required to immediately renew their activated license.
R156-1-308a. Renewal Dates.
(1) The following standard two-year renewal cycle renewal dates are established by license classification in accordance with the Subsection 58-1-308(1):
TABLE
RENEWAL DATES
(1) Acupuncturist May 31 even years
(2) Advanced Practice Registered Nurse January 31 even years[]
(3) Animal Euthanasia Agency May 31 odd years
([4]3) Alternate Dispute Resolution Provdr September 30 even years
([5]4) Architect May 31 even years
([6]5) Athlete Agent September 30 even years
([7]6) Audiologist May 31 odd years
([8]7) Building Inspector [July 31]November 30 odd years
([9]8) Burglar Alarm Security [July 31]November 30 even years
([10]9) C.P.A. Firm September 30 even years
([11]10) Certified Court Reporter May 31 even years
([12]11) Certified Dietitian September 30 even years
([13]12) Certified Nurse Midwife January 31 even years
([14]13) Certified Public Accountant September 30 even years
([15]14) Certified Registered
Nurse Anesthetist January 31 even years
([16]15) Certified Social Worker September 30 even years
([17]16) Chiropractic Physician May 31 even years
([18]17) Clinical Social Worker September 30 even years
([19]18) Construction Trades Instructor July 31 odd years
([20]19) Contractor [July 31]November 30 odd years
([21]20) Controlled Substance
Precursor Distributor May 31 odd years
([22]21) Controlled Substance
Precursor Purchaser May 31 odd years
([23]22) Controlled Substance Handler May 31 odd years
([24]23) Cosmetologist/Barber September 30 odd years
([25]24) Cosmetology/Barber School September 30 odd years
([26]25) Deception Detection [July 31]November 30 even years
([27]26) Dental Hygienist May 31 even years
([28]27) Dentist May 31 even years
(28) Direct-entry Midwife September 30 odd years
(29) Electrician Apprentice, Journeyman, Master,
Residential Journeyman,
Residential Master [July 31]November 30 even years
(30) Electrologist September 30 odd years
(31) Electrology School September 30 odd years
(32) Environmental Health Scientist May 31 odd years
(33) Esthetician September 30 odd years
(34) Esthetics School September 30 odd years
(35) Factory Built Housing Dealer September 30 even years
(36) Funeral Service Director May 31 even years
(37) Funeral Service May 31 even years
Establishment
(38) Genetic Counselor September 30 even years[]
(39) Health Care Assistant May 31 odd years
([40]39) Health Facility May 31 odd years
Administrator
([41]40) Hearing Instrument September 30 even years
Specialist
([42]41) Landscape Architect May 31 even years
([43]42) Licensed Practical Nurse January 31 even years
([44]43) Licensed Substance Abuse May 31 odd years
Counselor
([45]44) Marriage and Family September 30 even years
Therapist
([46]45) Massage Apprentice, May 31 odd years
Therapist
([47]46) Master Esthetician September 30 odd years
([48]47) Nail Technologist September 30 odd years
([49]48) Nail Technology School September 30 odd years
([50]49) Naturopath/Naturopathic May 31 even years
Physician
([51]50) Occupational Therapist May 31 odd years
([52]51) Occupational Therapy May 31 odd years
Assistant
([53]52) Optometrist September 30 even years
([54]53) Osteopathic Physician and May 31 even years
Surgeon
([55]54) Pharmacy
(Class A-B-C-D-E) [May 31]September 30 odd years
([56]55) Pharmacist [May 31]September 30 odd years
([57]56) Pharmacy Technician [May 31]September 30 odd years
([58]57) Physical Therapist May 31 odd years
([59]58) Physician Assistant May 31 even years
([60]59) Physician and Surgeon January 31 even years
([61]60) Plumber
Apprentice, Journeyman,
Residential Apprentice,
Residential Journeyman [July 31]November 30 even years
([62]61) Podiatric Physician September 30 even years
([63]62) Pre Need Funeral
Arrangement Provider May 31 even years
([64]63) Pre Need Funeral Arrangement
Sales Agent May 31 even years
([65]64) Private Probation Provider May 31 odd years
([66]65) Professional Counselor September 30 even years
([67]66) Professional Engineer [December]March 31 [even]odd years
([68]67) Professional Geologist [December]March 31 [even]odd years
([69]68) Professional Land Surveyor
[December]March 31 [even]odd years
([70]69) Professional Structural
[December]March 31 [even]odd years
Engineer
([71]70) Psychologist September 30 even years
([72]71) Radiology Practical May 31 odd years
Technician
([73]72) Radiology Technologist May 31 odd years
([74]73) Recreational Therapy
Technician, Specialist,
Master Specialist May 31 odd years
([75]74) Registered Nurse January 31 odd years
([76]75) Respiratory Care September 30 even years
Practitioner[]
(77) Retail Pharmacy May 31 odd years
([78]76) Security Personnel [July 31]November 30 even years
([79]77) Social Service Worker September 30 even years
([80]78) Speech-Language Pathologist May 31 odd years
([81]79) Veterinarian September 30 even years
(2) The following non-standard renewal terms and renewal or extension cycles are established by license classification in accordance with Subsection 58-1-308(1) and in accordance with specific requirements of the license:
(a) Certified Marriage and Family Intern licenses shall be issued for a three year term and may be extended if the licensee presents satisfactory evidence to the division and the board that reasonable progress is being made toward passing the qualifying examinations or is otherwise on a course reasonably expected to lead to licensure; but the period of the extension may not exceed two years past the date the minimum supervised experience requirement has been completed.
(b) Certified Professional Counselor Intern licenses shall be issued for a three year term and may be extended if the licensee presents satisfactory evidence to the division and the board that reasonable progress is being made toward passing the qualifying examinations or is otherwise on a course reasonably expected to lead to licensure; but the period of the extension may not exceed two years past the date the minimum supervised experience requirement has been completed.
(c) Certified Social Worker Intern licenses shall be issued for a period of six months or until the examination is passed whichever occurs first. An intern license may be extended if the licensee presents satisfactory evidence to the Division and the board that reasonable progress is being made toward passing the qualifying examinations or is otherwise on a course reasonably expected to lead to licensure; but the period of the extension may not exceed two years past the date the minimum supervised experience requirement has been completed.
(d) Funeral Service Apprentice licenses shall be issued for a two year term and may be extended for an additional two year term if the licensee presents satisfactory evidence to the division and the board that reasonable progress is being made toward passing the qualifying examinations or is otherwise on a course reasonably expected to lead to licensure.
(e) Professional Employer Organization registrations expire every year on September 30.
(f) Psychology Resident licenses shall be issued for a two year term and may be extended if the licensee presents satisfactory evidence to the division and the board that reasonable progress is being made toward passing the qualifying examinations or is otherwise on a course reasonably expected to lead to licensure; but the period of the extension may not exceed two years past the date the minimum supervised experience requirement has been completed.
(g) Hearing Instrument Intern licenses shall be issued for a three year term and may be extended if the licensee presents satisfactory evidence to the Division and the Board that reasonable progress is being made toward passing the qualifying examination, but a circumstance arose beyond the control of the licensee, to prevent the completion of the examination process.
R156-1-308d. Waiver of Continuing Education Requirements - Renewal Requirements.
(1)(a) In accordance with Subsection 58-1-203(1)(g), a licensee may request a waiver of any continuing education requirement established under this title or an extension of time to complete any requirement on the basis that the licensee was unable to complete the requirement due to a medical or related condition, humanitarian or ecclesiastical services, extended presence in a geographical area where continuing education is not available, etc.
(b) A request must be submitted no later than the deadline for completing any continuing education requirement.
(c) A licensee submitting a request has the burden of proof and must document the reason for the request to the satisfaction of the Division.
(d) A request shall include the beginning and ending dates during which the licensee was unable to complete the continuing education requirement and a detailed explanation of the reason why. The explanation shall include the extent and duration of the impediment, extent to which the licensee continued to be engaged in practice of his profession, the nature of the medical condition, the location and nature of the humanitarian services, the geographical area where continuing education is not available, etc.
(e) The Division may require that a specified number of continuing education hours, courses, or both, be obtained prior to reentering the practice of the profession or within a specified period of time after reentering the practice of the profession, as recommended by the appropriate board, in order to assure competent practice.
(f) While a licensee may receive a waiver from
meeting the minimum continuing education requirements, the licensee shall not
be exempted from the requirements of Subsection 58-1-501(2)(i), which requires
that the licensee provide services within the competency, abilities and
education of the licensee. If a
licensee cannot competently provide services, the waiver of meeting the
continuing education requirements may be conditioned upon the licensee [restricting]limiting
practice to areas in which the licensee has the required competency, abilities
and education.
R156-1-308l. Reinstatement of Licensure and Relicensure - Term of Licensure.
Except as otherwise governed by the terms of an order issued by the division, a license issued to an applicant for reinstatement or relicensure issued during the last four months of a renewal cycle shall, upon payment of the appropriate fees, be issued for a full renewal cycle plus the period of time remaining until the impending renewal date, rather than requiring the licensee to immediately renew their reinstated or relicensed license.
R156-1-[301]310. Cheating on Examinations.
(1) Policy.
The passing of an examination, when required as a condition of obtaining or maintaining a license issued by the division, is considered to be a critical indicator that an applicant or licensee meets the minimum qualifications for licensure. Failure to pass an examination is considered to be evidence that an applicant or licensee does not meet the minimum qualifications for licensure. Accordingly, the accuracy of the examination result as a measure of an applicant's or licensee's competency must be assured. Cheating by an applicant or licensee on any examination required as a condition of obtaining a license or maintaining a license shall be considered unprofessional conduct and shall result in imposition of an appropriate penalty against the applicant or licensee.
(2) Cheating Defined.
Cheating is defined as the use of any means or instrumentality by or for the benefit of an examinee to alter the results of an examination in any way to cause the examination results to inaccurately represent the competency of an examinee with respect to the knowledge or skills about which they are examined. Cheating includes:
(a) communication between examinees inside of the examination room or facility during the course of the examination;
(b) communication about the examination with anyone outside of the examination room or facility during the course of the examination;
(c) copying another examinee's answers or looking at another examinee's answers while an examination is in progress;
(d) permitting anyone to copy answers to the examination;
(e) substitution by an applicant or licensee or by others for the benefit of an applicant or licensee of another person as the examinee in place of the applicant or licensee;
(f) use by an applicant or licensee of any written material, audio material, video material or any other mechanism not specifically authorized during the examination for the purpose of assisting an examinee in the examination;
(g) obtaining, using, buying, selling, possession of or having access to a copy of the examination prior to administration of the examination.
(3) Action Upon Detection of Cheating.
(a) The person responsible for administration of an examination, upon evidence that an examinee is or has been cheating on an examination shall notify the division of the circumstances in detail and the identity of the examinees involved with an assessment of the degree of involvement of each examinee;
(b) If cheating is detected prior to commencement of the examination, the examinee may be denied the privilege of taking the examination; or if permitted to take the examination, the examinee shall be notified of the evidence of cheating and shall be informed that the division may consider the examination to have been failed by the applicant or licensee because of the cheating; or
(c) If cheating is detected during the examination, the examinee may be requested to leave the examination facility and in that case the examination results shall be the same as failure of the examination; however, if the person responsible for administration of the examination determines the cheating detected has not yet compromised the integrity of the examination, such steps as are necessary to prevent further cheating shall be taken and the examinee may be permitted to continue with the examination.
(d) If cheating is detected after the examination, the division shall make appropriate inquiry to determine the facts concerning the cheating and shall thereafter take appropriate action.
(e) Upon determination that an applicant has cheated on an examination, the applicant may be denied the privilege of retaking the examination for a reasonable period of time, and the division may deny the applicant a license and may establish conditions the applicant must meet to qualify for a license including the earliest date on which the division will again consider the applicant for licensure.
(4) Notification.
The division shall notify all proctors, test administrators and examinees of the rules concerning cheating.
R156-1-502. Unprofessional Conduct.
"Unprofessional conduct" includes:
(1) surrendering licensure to any other licensing or regulatory authority having jurisdiction over the licensee or applicant in the same occupation or profession while an investigation or inquiry into allegations of unprofessional or unlawful conduct is in progress or after a charging document has been filed against the applicant or licensee alleging unprofessional or unlawful conduct;
(2) practicing a regulated occupation or profession in, through, or with a limited liability company which has omitted the words "limited company," "limited liability company," or the abbreviation "L.C." or "L.L.C." in the commercial use of the name of the limited liability company;
(3) practicing a regulated occupation or profession in, through, or with a limited partnership which has omitted the words "limited partnership," "limited," or the abbreviation "L.P." or "Ltd" in the commercial use of the name of the limited partnership;
(4) practicing a regulated occupation or profession in, through, or with a professional corporation which has omitted the words "professional corporation" or the abbreviation "P.C." in the commercial use of the name of the professional corporation;
(5) using a DBA (doing business as name) which has not been properly registered with the Division of Corporations and with the Division of Occupational and Professional Licensing; or
(6) [failing to conform to the Privacy Rules
of the federal Health Insurance Portability and Accountability Act (HIPAA) as a
licensed health care provider; or
(7) ]failing, as a prescribing
practitioner, to follow the "Model Policy for the Use of Controlled
Substances for the Treatment of Pain", 2004, established by the Federation
of State Medical Boards, which is hereby adopted and incorporated by reference.
KEY: diversion programs, licensing, occupational licensing
[October 18, 2004]2005
Notice of Continuation May 2, 2002
58-1-106(1)(a)
58-1-308
58-1-501(4)
ADDITIONAL INFORMATION
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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.