Commerce, Occupational and Professional Licensing

Section R156-78B-9

Action upon Request - Scheduling Procedures - Continuances

Notice of Proposed Rule

(Amendment)

DAR File No.: 32885
Filed: 08/13/2009 02:20:36 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Division is proposing an amendment to clarify the filing requirement that a Request for Prelitigation Hearing needs to include documentation that the Notice of Intent was served in accordance with Section 78B-3-412.

Summary of the rule or change:

In Subsection R156-78B-9(2)(b), the amendment adds "and documentation that the notice was served in accordance with Section 78B-3-412".

State statutory or constitutional authorization for this rule:

• Subsection 78B-3-416(1)(b)

Anticipated cost or savings to:

the state budget:

The Division will incur minimal costs of approximately $50 to print and distribute the rule once the proposed amendments are made effective. Any costs incurred will be absorbed in the Division's current budget.

local governments:

The proposed amendment only applies to the prelitigation panel review process and does not apply to local governments; therefore no costs or savings are anticipated.

small businesses:

The proposed amendment is only clarifying what documentation is required to be submitted with a Request for Prelitigation Hearing. The documentation has always been required to be submitted, but the change is now being added to the rule. No costs or savings are anticipated for either small business or other persons since this amendment is only clarifying what documentation is required with respect to a prelitigation proceeding.

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

The proposed amendment is only clarifying what documentation is required to be submitted with a Request for Prelitigation Hearing. The documentation has always been required to be submitted, but the change is now being added to the rule. No costs or savings are anticipated for either small business or other persons since this amendment is only clarifying what documentation is required with respect to a prelitigation proceeding.

Compliance costs for affected persons:

The proposed amendment is only clarifying what documentation is required to be submitted with a Request for Prelitigation Hearing. The documentation has always been required to be submitted, but the requirement is now being added to the rule. No costs or savings are anticipated for either small business or other persons since this amendment is only clarifying what documentation is required with respect to a prelitigation proceeding.

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

This proposed rule change clarifies that a person requesting a prelitigation panel must provide the Division documentation that a notice of intent to commence action has been properly served. No fiscal impact to businesses is anticipated from this amendment.

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 [email protected]

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:

10/15/2009

This rule may become effective on:

10/22/2009

Authorized by:

Mark Steinagel, Director

R156. Commerce, Occupational and Professional Licensing.

R156-78B. Prelitigation Panel Review Rule.

R156-78B-9. Action upon Request - Scheduling Procedures - Continuances.

(1) Action upon Request.

Upon receiving a request, the division shall issue an order approving or denying the request.

(2) Criteria for Approving or Denying a Request.

The criteria for approving or denying a request shall be whether:

(a) the request is timely filed in accordance with Subsection 78B-3-416(2)(a);

(b) the request includes a copy of the notice in accordance with Subsection 78B-3-416(2)(b) and documentation that the notice was served in accordance with Section 78B-3-412; and

(c) the request has been mailed to all health care providers named in the notice and request as required by Subsection 78B-3-416(2)(b).

(3) Legal Effect of Denial of Request.

The denial of a request restarts the running of the applicable statute of limitations until an appropriate request is filed with the division.

(4) Scheduling Procedures.

(a) If a request is approved, the order approving the request shall direct the party who made the request to contact all parties named in the request and notice to determine by agreement of the parties:

(i) what type of health care provider panelists are requested;

(ii) at least two dates acceptable to all parties on which a prelitigation panel hearing may be scheduled; and

(iii) whether or not the case will be submitted in accordance with Section R156-78B-13 and if so, the nature of the submission.

(b) The order shall direct the party who made the request to file the scheduling information with the division, on forms available from the division, no later than 20 days following the issuance of the order.

(c) If the party so directed fails to comply with the directive without good cause, the division shall schedule the hearing without further input from the party.

(d) No later than five days following the filing of the approved form, the division shall issue a notice of hearing setting a date, time and a place for the prelitigation panel hearing. No hearing shall take place within the 35 day period immediately following the filing of a Request for Prelitigation Review, unless the parties and the division consent to a shorter period of time.

(e) The division shall thereafter promptly select and appoint a panel in accordance with Subsections 78B-3-416(4) and (5) and this rule.

(5) Continuances.

(a) Standard.

In order to prevail on a motion for a continuance the moving party must establish:

(i) that the motion was filed no later than five days after discovering the necessity for the motion and at least two days before the scheduled hearing;

(ii) that extraordinary facts and circumstances unknown and uncontrollable by the party at the time the hearing date was established justify a continuance;

(iii) that the rights of the other parties, the division, and the panel will not be unfairly prejudiced if the hearing is continued; and

(iv) that a continuance will serve the best interests of the goals and objectives of the prelitigation panel review process.

(b) If a continuance is granted, the order shall direct the party who requested the continuance to contact all parties named in the request and notice to establish no less than two dates acceptable to all parties, on which the prelitigation panel hearing may be rescheduled.

(c) The order shall direct the party who requested the continuance to file the scheduling information with the division, on forms approved by the division, no later than five days following the issuance of the order.

(d) If a party so directed is the petitioner and the petitioner fails to comply with the directive without good cause, the division shall dismiss the request without prejudice. Upon issuance of the order of dismissal by the division, the applicable statute of limitations on the cause of action shall no longer be tolled. The petitioner shall be required to file another request prior to the scheduling of any further proceeding and, until this request is filed, the statute of limitations shall continue to run.

(e) If a party so directed is the respondent and the respondent fails to comply with the directive without good cause, the division shall establish a date for the prelitigation panel hearing acceptable to petitioner and disallow any further motions for continuances from respondent.

(f) No later than three days following the filing of the dates, the division shall issue a notice of hearing resetting a date, time and a place for the prelitigation panel hearing.

KEY: medical malpractice, prelitigation

Date of Enactment or Last Substantive Amendment: [December 8, 2008]2009

Notice of Continuation: April 9, 2007

Authorizing, and Implemented or Interpreted Law: 78B-3-416(1)(b)