No. 31840 (Amendment): R156-46b. Division Utah Administrative Procedures Act Rules

DAR File No.: 31840
Filed: 08/18/2008, 01:50
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Division is filing this rule amendment to address an inconsistency in the rule which was pointed out by the Attorney General's Office. It should be noted that this rule is also being amended by the Division under DAR No. 31804. Any paragraph numbering changes that need to be made as a result of the two separate rule filings will be done through a nonsubstantive change once both filings are made effective. (DAR NOTE: The previous amendment to Rule R156-46b is under DAR No. 31804 and was published in the September 1, 2008, issue of the Bulletin (2008-17, pg. 13).)

Summary of the rule or change:

The termination of a diversion agreement has been moved to Section R156-46b-201, Formal Adjudicative Proceedings, and deleted from Section R156-46b-202, Informal Adjudicative Proceedings. These amendments are essentially technical amendments to address the inconsistency between the two sections brought about when the statutory provision governing diversion was recodified in 2006. See Subsection 58-1-404(14) for more detail regarding the termination of diversion agreements. The proposed amendments reclassify the termination of diversion agreements as a formal adjudicative proceeding under the Utah Administrative Procedures Act.

State statutory or constitutional authorization for this rule:

Subsections 63G-4-102(6) and 58-1-106(1)(a)

Anticipated cost or savings to:

the state budget:

The Division anticipates a nominal additional cost to change the termination of diversion agreements from an informal to a formal proceeding. However those nominal costs cannot be quantified as any additional cost is mostly in time and effort to prepare for a formal proceeding.

local governments:

Proposed amendments do not apply to local governments. The proposed amendments only apply to licensed professionals who may not successfully complete their diversion agreement.

small businesses and persons other than businesses:

The proposed amendments only apply to licensed professionals who may not successfully complete their diversion agreement in which they entered into with the Division. An individual licensed professional would not qualify as a "small business". There may be some nominal additional costs to a licensed professional who has not successfully completed their diversion agreement and proceedings are filed against them to terminate their diversion agreement. However, the Division is unable to quantify these nominal costs as they would not be much more than when the proceeding was classified as an informal adjudicative proceeding. The Division is also not able to determine how many licensed individuals may not successfully complete their diversion agreement.

Compliance costs for affected persons:

The proposed amendments only apply to licensed professionals who may not successfully complete their diversion agreement in which they entered into with the Division. There may be some nominal additional costs to a licensed professional who has not successfully completed their diversion agreement and proceedings are filed against them to terminate their diversion agreement. However, the Division is unable to quantify these nominal costs as they would not be much more than when the proceeding was classified as an informal adjudicative proceeding.

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

This rule filing corrects a prior inconsistency in the Division rule, clarifying that termination of diversion agreements is designated as a formal adjudicative proceeding rather than informal. It is not clear whether in the long run there will be a cost savings or cost increase to regulated individuals as a result of this clarification. However, no fiscal impact to other businesses is anticipated by such change. 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
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY UT 84111-2316

Direct questions regarding this rule to:

W. Ray Walker at the above address, by phone at 801-530-6256, by FAX at 801-530-6511, or by Internet E-mail at [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:

10/15/2008

This rule may become effective on:

10/22/2008

Authorized by:

F. David Stanley, Director

RULE TEXT

R156. Commerce, Occupational and Professional Licensing.

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

R156-46b-201. Formal Adjudicative Proceedings.

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

(a) denial of application for renewal of licensure;

(b) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308(5);

(c) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308(6)(b);

(d) special appeals board held in accordance with Section 58-1-402;

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

(f) payment of approved claims against the Residence Lien Recovery Fund described in Subparagraph (e);

(g) declaratory order determining the applicability of statute, rule or order to specified circumstances, when determined by the director to be conducted as a formal adjudicative proceeding; and

(h) board of appeal held in accordance with Subsection 58-56-8(3).

(2) The following adjudicative proceedings initiated by a Notice of Agency Action are classified as formal adjudicative proceedings:

(a) disciplinary proceedings which result in the following sanctions:

(i) revocation of licensure;

(ii) suspension of licensure;

(iii) restricted licensure;

(iv) probationary licensure;

(v) issuance of a cease and desist order except when imposed by citation or by an order in a contested citation hearing;

(vi) administrative fine except when imposed by citation or by an order in a contested citation hearing; and

(vii) issuance of a public reprimand;[ and]

(b) unilateral modification of a disciplinary order; and

(c) termination of diversion agreements.

 

R156-46b-202. Informal Adjudicative Proceedings.

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

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

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

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

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

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

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

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

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

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

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

(k) matters relating to diversion program;

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

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

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

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

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

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

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

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

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

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

(d) termination of diversion agreements].

 

KEY: administrative procedures, government hearings, occupational licensing

Date of Enactment or Last Substantive Amendment: [November 2, 2004]2008

Notice of Continuation: April 25, 2006

Authorizing, and Implemented or Interpreted Law: 63G-4-102(6); 58-1-106(1)(a)