No. 33641 (Amendment): Rule R156-1. General Rule of the Division of Occupational and Professional Licensing

(Amendment)

DAR File No.: 33641
Filed: 05/13/2010 02:02:48 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

There are various purposes or reasons for this rule filing. It makes designation of presiding officer changes for contractor adjudicative proceedings necessitated by a companion filing to Rule R156-46b that changes the classification of contractor formal adjudicative proceedings to informal adjudicative proceedings. It addresses changes made by the 2010 Legislature, which bills are identified below. It revises the renewal notice requirements to address the current process for online renewal and enables renewal notices to be sent by email in the future. It revises the provisions governing reinstatement of licensure to eliminate a reinstatement fee for applicants applying for licensure more than two years after their expiration of licensure who have not been practicing without a license after the expiration of their license, and only requires them to pay an initial license application fee. Finally, it makes cleanup and technical changes. (DAR NOTE: The proposed amendment to Rule R156-46b is under DAR No. 33639 in this issue, June 1, 2010, of the Bulletin.)

Summary of the rule or change:

First, this filing changes Subsection R156-1-308f(1) to be consistent with a companion filing to Rule R156-46b that in part changes the classification of adjudicative proceeding for contractors applying for renewal of licensure from a formal adjudicative proceeding to an informal adjudicative proceeding. The classification changes in the companion filing are in Subsections R156-46b-201(1) and R156-46b-202(1). Second, this filing makes changes to certain presiding officer designations in Section R156-1-109 to correlate them with the changes in classification of adjudicative proceedings made in the companion rule filing referenced above. Third, this filing make changes in the presiding officer designation for issuing notices of agency action in Subsection R156-1-109(1). Similarly, it amends the definition of "investigative subpoena authority" in current Subsection R156-1-102(14). Fourth, this filing incorporates various changes made by the 2010 Legislature. These include the following: 1) deleting the definition of "private reprimand" in current Subsection R156-1-102(20) because this concept was deleted from statute by H.B. 193 in existing Subsection 58-1-401(2); and 2) revising and adding license classification names and renewal dates including: consolidating existing "controlled substance precursor distributor" and "controlled substance precursor purchaser" license classifications into a new "controlled substance precursor" single license classification as consolidated by H.B. 89 in revised Subsection 58-37c-7(1); establishing a renewal date for new elevator mechanic license classification established by H.B. 11 in new Subsection 58-55-301(2)(s); establishing a renewal date for new "online prescriber" license classification required by S.B. 274 in new Subsection 58-83-301(2)(a); establishing a renewal date for new "online contract pharmacy" license classification required by S.B. 274 in new Subsection 58-83-301(2)(b); and establishing a renewal date for new "internet facilitator" license classification required by S.B. 274 in new Subsection 58-83-301(2)(c); changing the classification name "Certified Marriage and Family Intern" to "Associate Marriage and Family Therapist," and "Certified Professional Counselor Intern" to "Associate Professional Counselor" as changed by S.B. 90 in revised Subsections 58-60-305(2)(a) and (b); and establishing a renewal date for Certified Medical Language Interpreter required by H.B. 232 in the new Subsection 58-80a-304(1). Fifth, this filing revises the renewal notice requirements to address the current process for online renewal. Specifically, the change references a mailing rather than a letter, as the Division now sends post card renewal notices. It also replaces the requirement that the renewal notices specify the renewal requirements with a provision that the renewal requirements be outlined in the online renewal process, and that each licensee much document or certify that they meet the requirements prior to renewal. Finally it allows for sending renewal notices by email in the future. Sixth, this filing revises the provisions governing reinstatement of licensure to eliminate a reinstatement fee for applicants applying for licensure more than two years after the expiration of their license. Applicants who have not been practicing without a license after the expiration of their license will only pay the application fee for a new applicant rather than a reinstatement fee and a renewal fee. This change better follows the intent of the statute and encompasses the Division's current policy choice and process. Finally, this filing makes cleanup and technical changes including capitalizing the word "Division" consistently throughout the rule and making other cleanup and technical changes. (DAR NOTE: H.B. 89 (2010) is found at Chapter 240, Laws of Utah 2010, and was effective 05/11/2010. H.B. 11 (2010) is found at Chapter 227, Laws of Utah 2010, and was effective 05/11/2010. S.B. 274 (2010) is found at Chapter 180, Laws of Utah 2010, and was effective 05/11/2010. S.B. 90 (2010) is found at Chapter 214, Laws of Utah 2010, and was effective 05/11/2010. H.B. 232 (2010) is found at Chapter 127, Laws of Utah 2010, and was effective 05/11/2010.)

State statutory or constitutional authorization for this rule:

• Subsection 58-1-106(1)(a)
• Subsection 58-1-501(4)
• Section 58-1-308

Anticipated cost or savings to:

the state budget:

The proposed changes for contractor and lien recovery fund adjudicative proceedings will allow the Division to more efficiently handle these types of cases in an informal setting without unnecessarily devoting resources to formal proceedings. This savings allows the Division to more efficiently handle its increasing workload without requiring additional resources as soon as would otherwise be required or without reducing the level of service provided. These savings cannot be quantified. Changes to the renewal section will clarify the process for online renewals and allow for future use of email. The use of email will allow potential future mailing cost savings. These savings cannot be quantified. Taking out the reinstatement fee of $50 on top of the new application fee for licensees who file for a reinstatement over 2 years may result in a small decrease in state revenue. This change cannot be quantified as the Division is unable to determine how many licensees in the future will apply for reinstatement of licensure after their license has been expired for over two years. The changes necessitated by the 2010 Legislature addressed in this filing do not result in any additional impacts beyond what was addressed by the Legislature.

local governments:

The proposed amendments only apply to licensed professions and occupations regulated by the Division and applicants for licensure in those professions and occupations. As a result, the proposed amendments do not apply to local governments.

small businesses:

The proposed amendments only apply to licensed professions and occupations regulated by the Division and applicants for licensure in those professions and occupations. Licensees and applicants for licensure may work in a small business; however, the proposed amendments would not directly affect the business.

persons other than small businesses, businesses, or local governmental entities:

The elimination of the reinstatement fee for licensees applying for reinstatement of licensure after their license has been expired for 2 years will result in savings of the $50 reinstatement fee. The Division is unable to determine how many licensees in the future will apply for reinstatement of licensure after their license has been expired for over two years.

Compliance costs for affected persons:

The proposed amendments will not result in any additional costs or savings to licensees with regard to the change in classification of contractor and lien recovery fund adjudicative proceedings. Since most cases are currently resolved by informal means, those licensees will not be affected. For the more controversial cases, the overall expense to the licensee is not expected to change significantly. The changes necessitated by the 2010 Legislature addressed in this filing do not result in any additional impacts.

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

It is not expected that there will be a cost increase to the contractor industry as a result of the changes in the designation of adjudicative proceedings, as experience has shown that such cases are able to be resolved informally. A cost savings may result to licensees from the elimination of a reinstatement fee. As more fully discussed in the rule summary, no fiscal impact to other businesses is anticipated.

Francine A. Giani, Executive Director

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

Commerce
Occupational and Professional Licensing
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 [e-mail]

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:

07/01/2010

Interested persons may attend a public hearing regarding this rule:

• 06/30/2010 09:00 AM, Heber Wells Bldg, 160 E 300 S, Conference Room 474, Salt Lake City, UT

This rule may become effective on:

07/08/2010

Authorized by:

Mark Steinagel, Director

RULE TEXT

R156. Commerce, Occupational and Professional Licensing.

R156-1. General Rule of the Division of Occupational and Professional Licensing.

R156-1-101. Title.

This rule is known as the "General Rule 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 this rule:

(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) "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.

(4) "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.

(5) "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.

(6) "Disciplinary action" means adverse licensure action by the Division under the authority of Subsections 58-1-401(2)(a) through (2)(b).

(7) "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.

(8) "Diversion committees" mean diversion advisory committees authorized by Subsection 58-1-404(2)(a)(i) and created under Subsection R156-1-404a.

(9) "Duplicate license" means a license reissued to replace a license which has been lost, stolen, or mutilated.

(10) "Emergency review committees" mean emergency adjudicative proceedings review committees created by the Division under the authority of Subsection 58-1-108(2).

(11) "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.

(12) "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.

(13) "Investigative subpoena authority" means, except as otherwise specified in writing by the director, the Division regulatory and compliance officer, or if the Division regulatory and compliance officer is unable to so serve for any reason, a [bureau manager designated by the regulatory and compliance officer]Department administrative law judge, or if both the Division regulatory and compliance officer and [the designated bureau manager]a Department administrative law judge are unable to so serve for any reason, a [department administrative law judge]bureau manager designated by the director in writing.

(14) "License" means a right or privilege to engage in the practice of a regulated occupation or profession as a licensee.

(15) "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.

(16) "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]iii) timely and good faith effort to make restitution or rectify the consequences of the misconduct involved;

( iv) full and free disclosure to the client or Division prior to the discovery of any misconduct;

(v[i]) 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;

(vi[i]) imposition of other penalties or sanctions if the other penalties and sanctions have alleviated threats to the public health, safety, and welfare; and

(vii[i]) 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.

(17) "Nondisciplinary action" means adverse licensure action by the Division under the authority of Subsections 58-1-401(1) or 58-1-401(2)(c) through (2)(d).

(18) "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).

(19) ["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.

(20) ]"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.

([21]20) "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.

([22]21) "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.

([23]22) "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.

([24]23) "Relicense" or "relicensure" means to license an applicant who has previously been revoked or has previously surrendered a license.

([25]24) "Remove or modify restrictions" means to remove or modify restrictions, as defined in Subsection ([26]25)(a), placed on a license issued to an applicant for licensure.

([26]25) "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.

([27]26) "Revoke" or "revocation" means disciplinary action by the Division extinguishing a license.

([28]27) "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.

([29]28) "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.

([30]29) "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.

([31]30) "Unprofessional conduct" as defined in Title 58 is further defined, in accordance with Subsection 58-1-203(1)(e), in Section R156-1-502.

([32]31) "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.

 

R156-1-103. Authority - Purpose.

This rule is adopted by the [d]Division under the authority of Subsection 58-1-106(1)(a) to enable the [d]Division to administer Title 58.

 

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 [d]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 [d]Division under Title 78, Chapter 14;

(d) responses to universities, schools, or research facilities for the purposes of research;

(e) responses to requests from licensed health care facilities or third party credentialing services, for the purpose of verifying licensure status for issuing 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) and (b), the [d]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 [d]Division, if the reason for the request is deemed by the [d]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 63G-4-103(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 [d]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 [d]Division regulatory and compliance officer is unable to so serve for any reason, a bureau manager designated by the [regulatory and compliance officer]director 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 [d]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)](e), and R156-46b-201(2)(a) through ([b]c), 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]t), and R156-46b-202(2)(a) [through (c)]and (b), 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 [d]Division based upon the record developed at the hearing determining all issues pending before the [d]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]f), 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-202(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 this rule; 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]e) 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]s) and (t), and R156-46b-202(2)([a]b) 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 63G-4-203(1)(i) and Sections 63G-4-208 and 63G-4-209.

(b) Director. [Unless otherwise specified in writing by the commission, t]The director is designated as the presiding officer [for conducting informal adjudicative proceedings specified in R156-46b-202(2)(b)]for the concurrence role on disciplinary proceedings under Subsections R156-46b-202(2)(c) as required by Subsection 58-55-103(1)(b)(iv).

(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 this rule; and

(ii) informal adjudicative proceedings specified in Subsections R156-46b-202(1)(a) through (c), (e), (i), [and ](o) , (q) and (r)[and R156-46b-202(2)(d) and (e)].

(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.

 

R156-1-110. Issuance of Investigative Subpoenas.

(1) All requests for subpoenas in conjunction with a [d]Division investigation made pursuant to Subsection 58-1-106(1)(c), shall be made in writing to the investigative subpoena authority and shall be accompanied by an original of the proposed subpoena.

(a) Requests to the investigative subpoena authority shall contain adequate information to enable the subpoena authority to make a finding of sufficient need, including: the factual basis for the request, the relevance and necessity of the particular person, evidence, documents, etc., to the investigation, and an explanation why the subpoena is directed to the particular person upon whom it is to be served.

(b) Approved subpoenas shall be issued under the seal of the [d]Division and the signature of the subpoena authority.

(2) The investigative subpoena authority may quash or modify an investigative subpoena if it is shown to be unreasonable or oppressive.

 

R156-1-205. Peer or Advisory Committees - Executive Director to Appoint - Terms of Office - Vacancies in Office - Removal from Office - Quorum Requirements - Appointment of Chairman - Division to Provide Secretary - Compliance with Open and Public Meetings Act - Compliance with Utah Administrative Procedures Act - No Provision for Per Diem and Expenses.

(1) The executive director shall appoint the members of peer or advisory committees established under Title 58 or Title R156.

(2) Except for ad hoc committees whose members shall be appointed on a case-by-case basis, the term of office of peer or advisory committee members shall be for four years. The executive director shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of committee members are staggered so that approximately half of the peer or advisory committee is appointed every two years.

(3) No peer or advisory committee member may serve more than two full terms, and no member who ceases to serve may again serve on the peer or advisory committee until after the expiration of two years from the date of cessation of service.

(4) If a vacancy on a peer or advisory committee occurs, the executive director shall appoint a replacement to fill the unexpired term. After filling the unexpired term, the replacement may be appointed for only one additional full term.

(5) If a peer or advisory committee member fails or refuses to fulfill the responsibilities and duties of a peer or advisory committee member, including the attendance at peer committee meetings, the executive director may remove the peer or advisory committee member and replace the member in accordance with this section. After filling the unexpired term, the replacement may be appointed for only one additional full term.

(6) Committee meetings shall only be convened with the approval of the appropriate board and the concurrence of the [d]Division.

(7) Unless otherwise approved by the [d]Division, peer or advisory committee meetings shall be held in the building occupied by the [d]Division.

(8) A majority of the peer or advisory committee members shall constitute a quorum and may act in behalf of the peer or advisory committee.

(9) Peer or advisory committees shall annually designate one of their members to serve as peer or advisory committee chairman. The [d]Division shall provide a [d]Division employee to act as committee secretary to take minutes of committee meetings and to prepare committee correspondence.

(10) Peer or advisory committees shall comply with the procedures and requirements of Title 52, Chapter 4, Open and Public Meetings, in their meetings.

(11) Peer or advisory committees shall comply with the procedures and requirements of Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings.

(12) Peer or advisory committee members shall perform their duties and responsibilities as public service and shall not receive a per diem allowance, or traveling or accommodations expenses incurred in peer or advisory committees business, except as otherwise provided in Title 58 or Title R156.

 

R156-1-301. 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 by the [d]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 [d]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 [d]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;

(p) genetic counselor;

(q) health facility administrator;

(r) hearing instrument specialist;

(s) licensed substance abuse counselor;

(t) marriage and family therapist;

(u) naturopath/naturopathic physician;

(v) optometrist;

(w) osteopathic physician and surgeon;

(x) pharmacist;

(y) pharmacy technician;

(z) physician assistant;

(aa) physician and surgeon;

(bb) podiatric physician;

(cc) private probation provider;

(dd) professional counselor;

(ee) professional engineer;

(ff) professional land surveyor;

(gg) professional structural engineer;

(hh) psychologist;

(ii) radiology practical technician;

(jj) radiology technologist;

(kk) security personnel;

(ll) speech-language pathologist; and

(mm) veterinarian.

(3) Applicants for inactive licensure shall apply to the [d]Division in writing upon forms available from the [d]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 [d]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 [d]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.

(8) A Controlled Substance license may be placed on inactive status if attached to a primary license listed in Subsection R156-1-305(2) and the primary license is placed on inactive status.

 

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)  Alternate Dispute Resolution Provdr     September 30 even years

(4)  Architect                               May 31       even years

(5)  Athlete Agent                           September 30 even years

(6)  Athletic Trainer                        May 31       odd years

(7)  Audiologist                             May 31       odd years

(8)  Barber                                  September 30 odd years

(9)  Barber School                           September 30 odd years

(10)  Building Inspector                     November 30  odd years

(11)  Burglar Alarm Security                 November 30  even years

(12)  C.P.A. Firm                            September 30 even years

(13)  Certified Court Reporter               May 31       even years

(14)  Certified Dietitian                    September 30 even years

(15)  Certified Medical Language

      Interpreter                            March 31 odd years

([15]16)  Certified Nurse Midwife            January 31   even years

([16]17)  Certified Public Accountant        September 30 even years

([17]18)  Certified Registered

      Nurse Anesthetist                      January 31   even years

([18]19)  Certified Social Worker            September 30 even years

([19]20)  Chiropractic Physician             May 31       even years

([20]21)  Clinical Social Worker             September 30 even years

([21]22)  Construction Trades Instructor     November 30  odd years

([22]23)  Contractor                         November 30  odd years

(24)  Controlled Substance License           Attached to primary

                                             license renewal

([23]25)  Controlled Substance

            Precursor[ Distributor]          May 31       odd years[

(24)  Controlled Substance

            Precursor Purchaser              May 31       odd years]

([25]26)  Controlled Substance Handler       May 31       odd years

([26]27)  Cosmetologist/Barber               September 30 odd years

([27]28)  Cosmetology/Barber School          September 30 odd years

([28]29)  Deception Detection                November 30  even years

([29]30)  Dental Hygienist                   May 31       even years

([30]31)  Dentist                            May 31       even years

([31]32)  Direct-entry Midwife               September 30 odd years

([32]33)  Electrician

            Apprentice, Journeyman, Master,

            Residential Journeyman,

            Residential Master               November 30  even years

([33]34)  Electrologist                      September 30 odd years

([34]35)  Electrology School                 September 30 odd years

(36)  Elevator Mechanic                      November 30  even years

([35]37)  Environmental Health Scientist     May 31       odd years

([36]38)  Esthetician                        September 30 odd years

([37]39)  Esthetics School                   September 30 odd years

([38]40)  Factory Built Housing Dealer       September 30 even years

([39]41)  Funeral Service Director           May 31       even years

([40]42)  Funeral Service                    May 31       even years

            Establishment

([41]43)  Genetic Counselor                  September 30 even years

([42]44)  Health Facility                    May 31       odd years

            Administrator

([43]45)  Hearing Instrument                 September 30 even years

            Specialist

(46)  Internet Facilitator                   September 30 odd years

([44]47)  Landscape Architect                May 31       even years

([45]48)  Licensed Practical Nurse           January 31   even years

([46]49)  Licensed Substance Abuse           May 31       odd years

            Counselor

([47]50)  Marriage and Family                September 30 even years

            Therapist

([48]51)  Massage Apprentice,                May 31       odd years

            Therapist

([49]52)  Master Esthetician                 September 30 odd years

([50]53)  Medication Aide Certified          March 31     odd years

([51]54)  Nail Technologist                  September 30 odd years

([52]55)  Nail Technology School             September 30 odd years

([53]56)  Naturopath/Naturopathic            May 31       even years

            Physician

([54]57)  Occupational Therapist             May 31       odd years

([55]58)  Occupational Therapy               May 31       odd years

            Assistant

([56]59)  Optometrist                        September 30 even years

([57]60)  Osteopathic Physician and          May 31       even years

            Surgeon,

            Online Prescriber

([58]61)  Outfitter/Hunting Guide            May 31       even years

([59]62)  Pharmacy [(]Class A-B-C-D-E[)],    September 30 odd years

            Online Contract Pharmacy

([60]63)  Pharmacist                         September 30 odd years

([61]64)  Pharmacy Technician                September 30 odd years

([62]65)  Physical Therapist                 May 31       odd years

([63]66)  Physical Therapist Assistant       May 31       odd years

([64]67)  Physician Assistant                May 31       even years

([65]68)  Physician and Surgeon,             January 31   even years

            Online Prescriber

([66]69)  Plumber

            Apprentice, Journeyman,

            Master, Residential Master,

            Residential Journeyman           November 30  even years

([67]70)  Podiatric Physician                September 30 even years[

(68)  Pre Need Funeral

            Arrangement Provider             May 31       even years]

([69]71)  Pre Need Funeral Arrangement

            Sales Agent                      May 31       even years

([70]72)  Private Probation Provider         May 31       odd years

([71]73)  Professional Counselor             September 30 even years

([72]74)  Professional Engineer              March 31     odd years

([73]75)  Professional Geologist             March 31     odd years

([74]76)  Professional Land Surveyor         March 31     odd years

([75]77)  Professional Structural            March 31     odd years

            Engineer

([76]78)  Psychologist                       September 30 even years[

(77)  Radiology Practical                    May 31       odd years

            Technician]

([78]79)  Radiology Technologist,            May 31       odd years

          Radiology Practical Technician

([79]80)  Recreational Therapy

            Technician, Specialist,

            Master Specialist                May 31       odd years

([80]81)  Registered Nurse                   January 31   odd years

([81]82)  Respiratory Care                   September 30 even years

            Practitioner

([82]83)  Security Personnel                 November 30  even years

([83]84)  Social Service Worker              September 30 even years

([84]85)  Speech-Language Pathologist        May 31       odd years

([85]86)  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]Associate Marriage and Family [Intern]Therapist licenses shall be issued for a three year term and may be extended if the licensee presents satisfactory evidence to the [d]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]Associate Professional Counselor [Intern] licenses shall be issued for a three year term and may be extended if the licensee presents satisfactory evidence to the [d]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 [d]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) Psychology Resident licenses shall be issued for a two year term and may be extended if the licensee presents satisfactory evidence to the [d]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.

(f) 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.

(g) Vocational Rehabilitation Counselor licenses [shall be issued for a one year term and are renewed annually]will be renewed annually on March 31.

 

R156-1-308c. Renewal of Licensure Procedures.

The procedures for renewal of licensure shall be as follows:

(1) The [d]Division shall [mail]send a renewal notice to each licensee at least 60 days prior to the expiration date shown on the licensee's license. The notice shall include directions for the licensee to renew the license via the Division's website.

(2) (a) [Renewal]Except as provided in Subsection (2)(b), renewal notices shall be sent by [letter]mail deposited in the post office with postage prepaid, addressed to the last mailing address shown on the [d]Division's automated license system. Such mailing shall constitute legal notice. It shall be the duty and responsibility of each licensee to maintain a current mailing address with the [d]Division.

(b) If a licensee has authorized the Division to send a renewal notice by email, a renewal notice may be sent by email to the last email address shown on the Division's automated license system. Such mailing shall constitute legal notice. It shall be the duty and responsibility of a licensee who authorizes the Division to send a renewal notice by email to maintain a current email address with the Division.

(3) Renewal notices shall [specify]provide that the renewal requirements are outlined in the online renewal process and [require ]that each licensee is required to document or certify that the licensee meets the renewal requirements prior to renewal.

(4) Renewal notices shall advise each licensee that a license that is not renewed prior to the expiration date shown on the license automatically expires and that any continued practice without a license constitutes a criminal offense under Subsection 58-1-501(1)(a).

(5) Licensees licensed during the last four months of a renewal cycle shall 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 license.

 

R156-1-308f. Denial of Renewal of Licensure - Classification of Proceedings - Conditional Renewal of Licensure During Adjudicative Proceedings - Conditional Initial, Renewal, or Reinstatement Licensure During Audit or Investigation.

(1) Denial of renewal of licensure shall be classified as a formal adjudicative proceeding under Rule R156-46b, with allowance for exceptions.

(2) When a renewal application is denied and the applicant concerned requests a hearing to challenge the [d]Division's action as permitted by Subsection 63G-4-201(3)(d)(ii), unless the requested hearing is convened and a final order is issued prior to the expiration date shown on the applicant's current license, the [d]Division shall conditionally renew the applicant's license during the pendency of the adjudicative proceeding as permitted by Subsection 58-1-106(1)(h).

(3)(a) When an initial, renewal or reinstatement applicant under Subsections 58-1-301(2) through (3) or 58-1-308(5) or (6)(b) is selected for audit or is under investigation, the [d]Division may conditionally issue an initial license to an applicant for initial licensure, or renew or reinstate the license of an applicant pending the completion of the audit or investigation.

(b) The undetermined completion of a referenced audit or investigation rather than the established expiration date shall be indicated as the expiration date of a conditionally issued, renewed, or reinstated license.

(c) A conditional issuance, renewal, or reinstatement shall not constitute an adverse licensure action.

(d) Upon completion of the audit or investigation, the [d]Division shall notify the initial license, renewal, or reinstatement applicant whether the applicant's license is unconditionally issued, renewed, reinstated, denied, or partially denied or reinstated.

(e) A notice of unconditional denial or partial denial of licensure to an applicant the [d]Division conditionally licensed, renewed, or reinstated shall include the following:

(i) that the applicant's unconditional initial issuance, renewal, or reinstatement of licensure is denied or partially denied and the basis for such action;

(ii) the [d]Division's file or other reference number of the audit or investigation;

(iii) that the denial or partial denial of unconditional initial licensure, renewal, or reinstatement of licensure is subject to review and a description of how and when such review may be requested;

(iv) that the applicant's conditional license automatically will or did expire on the expiration date shown on the conditional license, and that the applicant will not be issued, renewed, or reinstated unless or until the applicant timely requests review; and

(v) that if the applicant timely requests review, the applicant's conditionally issued, renewed, or reinstated license does not expire until an order is issued unconditionally issuing, renewing, reinstating, denying, or partially denying the initial issuance, renewal, or reinstatement of the applicant's license.

 

R156-1-308g. Reinstatement of Licensure which was Active and in Good Standing at the Time of Expiration of Licensure - Requirements.

The following requirements shall apply to reinstatement of licensure which was active and in good standing at the time of expiration of licensure:

(1) In accordance with Subsection 58-1-308(5), if an application for reinstatement is received by the [d]Division between the date of the expiration of the license and [31]30 days after the date of the expiration of the license, the applicant shall:

(a) submit a completed renewal form as furnished by the [d]Division demonstrating compliance with requirements and/or conditions of license renewal; and

(b) pay the established license renewal fee and a late fee.

(2) In accordance with Subsection 58-1-308(5), if an application for reinstatement is received by the [d]Division between 31 days after the expiration of the license and two years after the date of the expiration of the license, the applicant shall:

(a) submit a completed renewal form as furnished by the [d]Division demonstrating compliance with requirements and/or conditions of license renewal; and

(b) pay the established license renewal fee and reinstatement fee.

(3) In accordance with Subsection 58-1-308(6)(a), if an application for reinstatement is received by the [d]Division more than two years after the date the license expired and the applicant has not been active in the licensed occupation or profession while in the full-time employ of the United States government or under license to practice that occupation or profession in any other state or territory of the United States during the time the license was expired, the applicant shall:

(a) submit an application for licensure complete with all supporting documents as is required of an individual making an initial application for license demonstrating the applicant meets all current qualifications for licensure and compliance with requirements and/or conditions of license reinstatement;

(b) provide information requested by the [d]Division and board to clearly demonstrate the applicant is currently competent to engage in the occupation or profession for which reinstatement of licensure is requested;

(c) if the applicant has not been engaged in unauthorized practice of the applicant's occupation or profession following the expiration of the applicant's license, pay the established license fee for a new applicant for licensure[ and the reinstatement fee]; and

(d) if the applicant has been engaged in unauthorized practice of the applicant's occupation or profession following the expiration of the applicant's license, pay the current license renewal fee multiplied by the number of renewal periods for which the license renewal fee has not been paid since the time of expiration of license, plus a reinstatement fee.

(4) In accordance with Subsection 58-1-308(6)(b), if an application for reinstatement is received by the [d]Division more than two years after the date the license expired but the applicant has been active in the licensed occupation or profession while in the full-time employ of the United States government or under license to practice that occupation or profession in any other state or territory of the United States shall:

(a) provide documentation of prior licensure in the State of Utah;

(b) provide documentation that the applicant has continuously, since the expiration of the applicant's license in Utah, been active in the licensed occupation or profession while in the full-time employ of the United States government or under license to practice that occupation or profession in any other state or territory of the United States;

(c) provide documentation that the applicant has completed or is in compliance with any renewal qualifications;

(d) provide documentation that the applicant's application was submitted within six months after reestablishing domicile within Utah or terminating full-time government service; and

(e) pay the established license renewal fee and the reinstatement fee.

 

R156-1-308i. Reinstatement of Restricted, Suspended, or Probationary Licensure After the Specified Term of Suspension of the License or After the Expiration of Licensure in a Restricted, Suspended or Probationary Status - Requirements.

Unless otherwise provided by a disciplinary order, an applicant who applies for reinstatement of a license after the specified term of suspension of the license or after the expiration of the license in a restricted, suspended or probationary status shall:

(1) submit an application for licensure complete with all supporting documents as is required of an individual making an initial application for license demonstrating the applicant meets all current qualifications for licensure and compliance with requirements and conditions of license reinstatement;

(2) pay the established license renewal fee and the reinstatement fee;

(3) provide information requested by the [d]Division and board to clearly demonstrate the applicant is currently competent to be reinstated to engage in the occupation or profession for which the applicant was suspended, restricted, or placed on probation; and

(4) pay any fines or citations owe[s]d to the Division prior to the expiration of license.

 

R156-1-308j. Relicensure Following Revocation of Licensure - Requirements.

An applicant for relicensure following revocation of licensure shall:

(1) submit an application for licensure complete with all supporting documents as is required of an individual making an initial application for license demonstrating the applicant meets all current qualifications for licensure and compliance with requirements and/or conditions of license reinstatement;

(2) pay the established license fee for a new applicant for licensure; and

(3) provide information requested by the [d]Division and board to clearly demonstrate the applicant is currently competent to be relicensed to engage in the occupation or profession for which the applicant was revoked.

 

R156-1-308k. Relicensure Following Surrender of Licensure - Requirements.

The following requirements shall apply to relicensure applications following the surrender of licensure:

(1) An applicant who surrendered a license that was active and in good standing at the time it was surrendered shall meet the requirements for licensure listed in Sections R156-1-308a through R156-1-308l.

(2) An applicant who surrendered a license while the license was active but not in good standing as evidenced by the written agreement supporting the surrender of license shall:

(a) submit an application for licensure complete with all supporting documents as is required of an individual making an initial application for license demonstrating the applicant meets all current qualifications for licensure and compliance with requirements and/or conditions of license reinstatement;

(b) pay the established license fee for a new applicant for licensure;

(c) provide information requested by the [d]Division and board to clearly demonstrate the applicant is currently competent to be relicensed to engage in the occupation or profession for which the applicant was surrendered;

(d) pay any fines or citations owed to the Division prior to the surrender of license.

 

R156-1-308l. Reinstatement of Licensure and Relicensure - Term of Licensure.

Except as otherwise governed by the terms of an order issued by the [d]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.

 

R156-1-310. Cheating on Examinations.

(1) Policy.

The passing of an examination, when required as a condition of obtaining or maintaining a license issued by the [d]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 any portion 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 [d]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 [d]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 [d]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 [d]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 [d]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.]

 

R156-1-404d. Diversion - Procedures.

(1) Diversion committees shall complete the duties described in Subsections R156-1-404b(1) and (2) no later than 60 days following the referral of a licensee to the diversion committee for possible diversion.

(2) The director shall accept or reject the diversion committee's recommendation no later than 30 days following receipt of the recommendation.

(3) If the director finds that a licensee meets the qualifications for diversion and should be diverted, the [d]Division shall prepare and serve upon the licensee a proposed diversion agreement. The licensee shall have a period of time determined by the diversion committee not to exceed 30 days from the service of the proposed diversion agreement to negotiate a final diversion agreement with the director. The final diversion agreement shall comply with Subsections 58-1-404.

(4) If a final diversion agreement is not reached with the director within 30 days from service of the proposed diversion agreement, the [d]Division shall pursue appropriate disciplinary action against the licensee in accordance with Section 58-1-108.

(5) In accordance with Subsection 58-1-404(5), a licensee may be represented, at the licensee's discretion and expense, by legal counsel during negotiations for diversion, at the time of execution of the diversion agreement and at any hearing before the director relating to a diversion program.

 

R156-1-404e. Diversion - Agreements for Rehabilitation, Education or Other Similar Services or Coordination of Services.

(1) The [d]Division may enter into agreements with professional or occupational organizations or associations, education institutions or organizations, testing agencies, health care facilities, health care practitioners, government agencies or other persons or organizations for the purpose of providing rehabilitation, education or any other services necessary to facilitate an effective completion of a diversion program for a licensee.

(2) The [d]Division may enter into agreements with impaired person programs to coordinate efforts in rehabilitating and educating impaired professionals.

(3) Agreements shall be in writing and shall set forth terms and conditions necessary to permit each party to properly fulfill its duties and obligations thereunder. Agreements shall address the circumstances and conditions under which information concerning the impaired licensee will be shared with the [d]Division.

(4) The cost of administering agreements and providing the services thereunder shall be borne by the licensee benefiting from the services. Fees paid by the licensee shall be reasonable and shall be in proportion to the value of the service provided. Payments of fees shall be a condition of completing the program of diversion.

(5) In selecting parties with whom the [d]Division shall enter agreements under this section, the [d]Division shall ensure the parties are competent to provide the required services. The [d]Division may limit the number of parties providing a particular service within the limits or demands for the service to permit the responsible diversion committee to conduct quality review of the programs given the committee's limited resources.

 

R156-1-503. Reporting Disciplinary Action.

The [d]Division may report disciplinary action to other state or federal governmental entities, state and federal data banks, the media, or any other person who is entitled to such information under the Government Records Access and Management Act.

 

KEY: diversion programs, licensing, occupational licensing, supervision

Date of Enactment or Last Substantive Amendment: [March 25, ]2010

Notice of Continuation: March 1, 2007

Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-308; 58-1-501(4)

 

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