No. 27377 (Amendment): R156-1. General Rules of the Division of Occupational and Professional Licensing

DAR File No.: 27377
Filed: 08/30/2004, 01:12
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Division is proposing amendments to the rule to address Division practices and policies not previously in the rule. The Division is also proposing amendments as a result of statute changes made during the 2004 legislative session in S.B. 114 and S.B. 123. (DAR NOTE: S.B. 114 is found at UT L 2004 Ch 280, and was effective 07/01/2004; and S.B. 123 is found at UT L 2004 Ch 77, and was effective 05/03/2004.)

 

Summary of the rule or change:

In Section R156-1-102, additions are made to clarify the definitions of "aggravating circumstances", "cancel or cancellation" and "mitigating circumstances"; a new definition for "branching questionnaire" was added; and the remaining subsections were renumbered. In Section R156-1-109, amendments were made in this section to redefine who may be a presiding officer for formal and informal adjudicative proceedings as a result of changes being proposed in Rule R156-46b. In Section R156-1-301, added that an applicant may be denied the privilege to retake an exam for a period of time if found cheating. In Section R156-1-305, amendments are made to delete which professions may not be granted an inactive license and adds which professions may be granted an inactive license. In Section R156-1-308a, deletes pharmacy names that no longer exist and adds pharmacy (class A-B-C-D-E) licenses due to statute changes; renames certified shorthand reporter to certified court report as a result of a statute change and changes the renewal date for health care assistants from November 30 in even years to May 31 in odd years; additions are made to clarify that a certified social worker intern license is issued for a period of six months or until the examination is passed, whichever occurs first; and also added that a hearing instrument intern license may be extended for good cause. In Section R156-1-308c, updated this section to comply with current Division practice regarding renewal notices. In Sections R156-1-308g, R156-1-308i, and R156-1-308k, clarified requirements for reinstatement/relicensure. In Section R156-1-502, added an unprofessional conduct clause for prescribing practitioners who fail to follow model guidelines. Also, added a new Section R156-1-601 which establishes protocols for medical online assessment, diagnosis, and prescribing pursuant to Subsection 58-1-501(4). (DAR NOTES: A corresponding 120-day (emergency) rule is under DAR No. 27358 in this issue, and was effective 08/24/2004. The proposed amendment to Rule R156-46b is under DAR No. 27401 and will be published in the October 1, 2004, issue of the Bulletin.)

 

State statutory or constitutional authorization for this rule:

Section 58-1-308, and Subsections 58-1-106(1)(a) and 58-1-501(4)

 

This rule or change incorporates by reference the following material:

Adds: Model Policy for the Use of Controlled Substances for the Treatment of Pain, 2004, established by the Federation of State Medical Boards

 

Anticipated cost or savings to:

the state budget:

The Division will incur costs of approximately $50 to reprint the rule as a result of these proposed amendments. Any costs incurred will be absorbed in the Division's current budget.

 

local governments:

The proposed amendments are specific to Division processes or individual licensees and do not affect local government. Therefore, there are no costs or savings to local government.

 

other persons:

Any costs or savings would only apply to licensees and applicants for licensure. Mitigating and aggravating circumstances are used to determine whether an application should be denied. By making an appeal for reconsideration of an accusation of cheating on an examination a part of the licensure process, an individual would be required to pay the respective application fee in order to appeal the denial of licensure for cheating. With respect to inactive licensure amendments, the Division has found that very few licensees opt for an inactive license so any change will be negligible. A licensee who allows a license to expire or surrenders a license to avoid paying a fine or citation will be held to paying that debt should reapplication occur. Online diagnosing and prescribing is becoming more prevalent. The proposed protocols will control who may practice online and the steps necessary to be authorized for such practice. The Division does not anticipate any costs or savings associated with the online prescribing amendments.

 

Compliance costs for affected persons:

Any costs or savings would only apply to licensees and applicants for licensure. Mitigating and aggravating circumstances are used to determine whether an application should be denied. By making an appeal for reconsideration of an accusation of cheating on an examination a part of the licensure process, an individual would be required to pay the respective application fee in order to appeal the denial of licensure for cheating. With respect to inactive licensure amendments, the Division has found that very few licensees opt for an inactive license so any change will be negligible. A licensee who allows a license to expire or surrenders a license to avoid paying a fine or citation will be held to paying that debt should reapplication occur. Online diagnosing and prescribing is becoming more prevalent. The proposed protocols will control who may practice online and the steps necessary to be authorized for such practice. The Division does not anticipate any costs or savings associated with the online prescribing amendments.

 

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

The amendments codify existing procedures, clarify existing standards, and establish standards of practice for online assessment and diagnosis. Although some of these amendments could create some costs for practitioners, there appears to be no fiscal impact to businesses as a result of this rule filing. Klarice A. Bachman, Executive Director

 

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

Commerce
Occupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY UT 84111-2316

 

Direct questions regarding this rule to:

Laura Poe at the above address, by phone at 801-530-6789, 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:

10/15/2004

 

Interested persons may attend a public hearing regarding this rule:

9/17/2004 at 10:00 AM, Heber Wells Building, 160 East 300 South, Conference Room 428 (Fourth floor), Salt Lake City, UT

 

This rule may become effective on:

10/16/2004

 

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.

([3]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 fails to complete the process such as having an outstanding warrant.

([4]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.

([5]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.

([6]7) "Disciplinary action" means adverse licensure action by the division under the authority of Subsections 58-1-401(2)(a) through (2)(b).

([7]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.

([8]9) "Diversion committees" mean diversion advisory committees authorized by Subsection 58-1-404(2)(a)(i) and created under Subsection R156-1-404a.

([9]10) "Duplicate license" means a license reissued to replace a license which has been lost, stolen, or mutilated.

([10]11) "Emergency review committees" mean emergency adjudicative proceedings review committees created by the division under the authority of Subsection 58-1-108(2).

([11]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.

([12]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.

([13]14) "Investigative subpoena authority" means, except as otherwise specified in writing by the director, the division enforcement counsel, or if the division enforcement counsel is unable to so serve for any reason, the assistant director, or if both the division enforcement counsel and the assistant director are unable to so serve for any reason, the department enforcement counsel.

([14]15) "License" means a right or privilege to engage in the practice of a regulated occupation or profession as a licensee.

([15]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.

([16]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.

([17]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).

([18]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).

([19]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.

([20]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.

([21]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.

([22]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.

([23]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.

([24]25) "Relicense" or "relicensure" means to license an applicant who has previously been revoked or has previously surrendered a license.

([25]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.

([26]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.

([27]28) "Revoke" or "revocation" means disciplinary action by the division extinguishing a license.

([28]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.

([29]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.

([30]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.

([31]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.

([32]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.

 

R156-1-109. 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 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)([g]d), ([j]h),([l]j), ([o]m), ([p]n), ([r]p), and ([s]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 ([f]c), ([h]e), ([i]g), ([k]i), ([m]k), and ([r]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)([n]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)([h]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)([i]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)([g]d), ([o]m), ([p]n), ([r]p), and ([s]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 ([f]c), ([h]e), ([k]i), and ([r]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.

 

R156-1-301. 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.

 

R156-1-305. Inactive Licensure.

(1) In accordance with Section 58-1-305, except as provided in Subsection (2), a licensee [who holds an active in good standing license under Title 58 ]may not apply for inactive licensure status.

(2) The following licenses issued under Title 58 that are active in good standing may [not ]be placed on inactive licensure status:

(a) [Agency performing animal euthanasia]advanced practice registered nurse;

(b) [Analytical laboratory]audiologist;

(c) [Branch pharmacy]certified nurse midwife;

(d) [Certified professional accountant firm]certified public accountant emeritus;

(e) [Controlled substance]certified registered nurse anesthetist;

(f) [Controlled substance handler]certified court reporter;

(g) [Controlled substance precursor distributors and purchasers]certified social worker;

(h) [Cosmetologist/barber school]chiropractic physician;

(i) [Funeral service establishment]clinical social worker;

(j) [Hospital, institutional, nuclear, out-of-state mail service and retail pharmacy]contractor;

(k) [Licensed substance abuse counselor]deception detection examiner;

(l) [Pharmaceutical manufacturer, researcher, teaching organization, wholesaler or distributor]deception detection intern;

(m) [Preneed funeral arrangement provider]dental hygienist;

(n) [Professional employer organization; and]dentist;

(o) [Veterinary pharmaceutical outlet.]genetic counselor;

(p) health facility administrator;

(q) hearing instrument specialist;

(r) licensed substance abuse counselor;

(s) marriage and family therapist;

(t) naturopath/naturopathic physician;

(u) optometrist;

(v) osteopathic physician and surgeon;

(w) pharmacist;

(x) pharmacy technician;

(y) physician assistant;

(z) physician and surgeon;

(aa) podiatric physician;

(bb) private probation provider;

(cc) professional counselor;

(dd) psychologist;

(ee) radiology practical technician;

(ff) radiology technologist;

(gg) security personnel;

(hh) speech-language pathologist; and

(ii) 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.

 

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)  Alternate Dispute Resolution Provdr September 30 even years

[(5)  Analytical Laboratory               May 31       odd years]

([6]5)  Architect                           May 31       even years

([7]6)  Athlete Agent                       September 30 even years

([8]7)  Audiologist                         May 31       odd years

[(9)  Branch Pharmacy                     May 31       odd years]

([10]8)  Building Inspector                 July 31      odd years

([11]9)  Burglar Alarm Security             July 31      even years

([12]10)  C.P.A. Firm                        September 30 even years

([13]11)  Certified [Shorthand]Court Reporter       May 31       even years

([14]12)  Certified Dietitian                September 30 even years

([15]13)  Certified Nurse Midwife            January 31   even years

([16]14)  Certified Public Accountant        September 30 even years

([17]15)  Certified Registered

      Nurse Anesthetist                  January 31   even years

([18]16)  Certified Social Worker            September 30 even years

([19]17)  Chiropractic Physician             May 31       even years

([20]18)  Clinical Social Worker             September 30 even years

([21]19)  Construction Trades Instructor     July 31      odd years

([22]20)  Contractor                         July 31      odd years

([23]21)  Controlled Substance

            Precursor Distributor        May 31       odd years

([24]22)  Controlled Substance

            Precursor Purchaser          May 31       odd years

([25]23)  Controlled Substance Handler       May 31       odd years

([26]24)  Cosmetologist/Barber               September 30 odd years

([27]25)  Cosmetology/Barber School          September 30 odd years

([28]26)  Deception Detection                July 31      even years

([29]27)  Dental Hygienist                   May 31       even years

([30]28)  Dentist                            May 31       even years

([31]29)  Electrician

            Apprentice, Journeyman, Master,

            Residential Journeyman,

            Residential Master           July 31      even years

([32]30)  Electrologist                      September 30 odd years

([33]31)  Electrology School                 September 30 odd years

([34]32)  Environmental Health Scientist     May 31       odd years

([35]33)  Esthetician                        September 30 odd years

([36]34)  Esthetics School                   September 30 odd years

([37]35)  Factory Built Housing Dealer       September 30 even years

([38]36)  Funeral Service Director           May 31       even years

([39]37)  Funeral Service                    May 31       even years

            Establishment

([40]38)  Genetic Counselor                  September 30 even years

([41]39)  Health Care Assistant              [November 30  even years]May 31 odd years

([42]40)  Health Facility                    May 31       odd years

            Administrator

([43]41)  Hearing Instrument                 September 30 even years

            Specialist

[(44)  Hospital Pharmacy                  May 31       odd years

(45)  Institutional Pharmacy             May 31       odd years]

([46]42)  Landscape Architect                May 31       even years

([47]43)  Licensed Practical Nurse           January 31   even years

([48]44)  Licensed Substance Abuse           May 31       odd years

            Counselor

([49]45)  Marriage and Family                September 30 even years

            Therapist

([50]46)  Massage Apprentice,                May 31       odd years

            Therapist

([51]47)  Master Esthetician                 September 30 odd years

([52]48)  Nail Technologist                  September 30 odd years

([53]49)  Nail Technology School             September 30 odd years

([54]50)  Naturopath/Naturopathic            May 31       even years

            Physician

[(55)  Nuclear Pharmacy                   May 31       odd years]

([56]51)  Occupational Therapist             May 31       odd years

([57]52)  Occupational Therapy               May 31       odd years

            Assistant

([58]53)  Optometrist                        September 30 even years

([59]54)  Osteopathic Physician and          May 31       even years

            Surgeon

[(60)  Out of State Mail Order            May 31       odd years

            Pharmacy

(61)  Pharmaceutical Administration

            Facility                     May 31       odd years

(62)  Pharmaceutical Dog Trainer         May 31       odd years

(63)  Pharmaceutical Manufacturer        May 31       odd years

(64)  Pharmaceutical Researcher          May 31       odd years

(65)  Pharmaceutical Teaching            May 31       odd years

            Organization

(66)  Pharmaceutical

            Wholesaler/Distributor       May 31       odd years]

(55)  Pharmacy (Class A-B-C-D-E)         May 31       odd years

([67]56)  Pharmacist                         May 31       odd years

([68]57)  Pharmacy Technician                May 31       odd years

([69]58)  Physical Therapist                 May 31       odd years

([70]59)  Physician Assistant                May 31       even years

([71]60)  Physician and Surgeon              January 31   even years

([72]61)  Plumber

            Apprentice, Journeyman,

            Residential Apprentice,

            Residential Journeyman       July 31      even years

([73]62)  Podiatric Physician                September 30 even years

([74]63)  Pre Need Funeral

            Arrangement Provider         May 31       even years

([75]64)  Pre Need Funeral Arrangement

            Sales Agent                  May 31       even years

([76]65)  Private Probation Provider         May 31       odd years

([77]66)  Professional Counselor             September 30 even years

([78]67)  Professional Engineer              December 31  even years

([79]68)  Professional Geologist             December 31  even years

([80]69)  Professional Land Surveyor         December 31  even years

([81]70)  Professional Structural            December 31  even years

            Engineer

([82]71)  Psychologist                       September 30 even years

([83]72)  Radiology Practical                May 31       odd years

            Technician

([84]73)  Radiology Technologist             May 31       odd years

([85]74)  Recreational Therapy

            Technician, Specialist,

            Master Specialist            May 31       odd years

([86]75)  Registered Nurse                   January 31   odd years

([87]76)  Respiratory Care                   September 30 even years

            Practitioner

([88]77)  Retail Pharmacy                    May 31       odd years

([89]78)  Security Personnel                 July 31      even years

([90]79)  Social Service Worker              September 30 even years

([91]80)  Speech-Language Pathologist        May 31       odd years

([92]81)  Veterinarian                       September 30 even years[

(93)  Veterinary Pharmaceutical          May 31       odd years

            Outlet]

 

(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 [three year term and]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.

([d]e) Professional Employer Organization registrations expire every year on September 30.

([e]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.

 

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

The procedures for renewal of licensure shall be as follows:

(1) The division shall mail 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) Renewal notices shall be sent by letter deposited in the post office with postage prepaid, addressed to the last address shown on the 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 address with the division.

(3) Renewal notices shall specify the renewal requirements and require that each licensee document or certify that the licensee meets the renewal requirements.

(4) [Renewal notices shall specify a renewal application due date at least 30 days prior to the expiration date shown on the licensee's license in order to permit the renewal applications to be processed prior to the expiration of licensure in accordance with Subsection 58-1-308(4).

(5) ]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).[

(6) Renewal notices shall further advise each licensee that if the licensee fails to return the renewal application to the division or its designee by the renewal application due date, the licensee's license may expire before it is renewed.

(7) Renewal notices shall specify the address or addresses to where the renewal applications should be submitted.

(8) When a renewal application contains multiple parts to be returned to separate addresses, the division shall facilitate proper submission by using, to the extent resources permit, color coded renewal applications with perforated sections and return envelopes.]

([9]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.

 

R156-1-308g. 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 division between the date of the expiration of the license and 31 days after the date of the expiration of the license, the applicant shall:

(a) submit a completed renewal form as furnished by the 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 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 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 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 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 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) [submit]provide documentation of prior licensure in the State of Utah;

(b) [submit]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 information requested by the 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;]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) [pass a law and rules examination if such an examination has been adopted for the occupation or profession to which the application pertains; and

(f) ]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 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 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;[ and]

(3) provide information requested by the 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 owes to the Division prior to the expiration of license.

 

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 Section R156-1-308.

(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;[ and]

(c) provide information requested by the 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.

 

R156-1-502. 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.

 

R156-1-601. Online Assessment, Diagnosis and Prescribing Protocols.

(1) In accordance with Subsection 58-1-501(4), a person licensed to prescribe under this title may prescribe legend drugs to a person located in this state following an online assessment and diagnosis in accordance with the following conditions:

(a) the prescribing practitioner is licensed in good standing in this state;

(b) an assessment and diagnosis is based upon a comprehensive health history and an assessment tool that requires the patient to provide answers to all the required questions and does not rely upon default answers, such as a branching questionnaire;

(c) only includes legend drugs and may not include controlled substances;

(d) the practice is authorized in a consent agreement signed by the Division and the practitioner and approved by a panel comprised of three board members from the Physicians Licensing Board or the Osteopathic Physician and Surgeon's Licensing Board and three members from the Utah State Board of Pharmacy. The consent agreement shall include:

(i) the specific name of the drug or drugs approved to be prescribed;

(ii) the policies and procedures that address patient confidentiality;

(iii) a method for electronic communication by the physician and patient;

(iv) a mechanism for the Division to be able to conduct audits of the website and records to ensure an assessment and diagnosis has been made prior to prescribing any medications; and

(v) a mechanism for the physician to have ready access to all patients' records.

 

KEY: diversion programs, licensing, occupational licensing

[January 20, ]2004

Notice of Continuation May 2, 2002

58-1-106(1)(a)

58-1-308

58-1-501(4)