Commerce, Occupational and Professional Licensing

Rule R156-1

General Rule of the Division of Occupational and Professional Licensing

Notice of Proposed Rule

(Amendment)

DAR File No.: 34885
Filed: 05/31/2011 10:44:17 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule change implements changes made by the 2011 Legislature. Specifically it addresses H.B. 238, H.B. 243, and S.B. 129. A companion rule filing affecting Rule R156-46b revises the designation of adjudicative proceedings moving some from formal to informal proceedings. This filing designates the presiding officers for these proceedings. This filing removes some reinstatement requirement language which has proven difficult or unworkable to administer. Finally, this filing also makes technical, cleanup, and minor clarification changes. (DAR NOTE: H.B. 238 (2011) was effective 03/18/2011. H.B. 243 and S.B. 129 were both effective 05/10/2011. The proposed rule filing to Rule R156-46b is under DAR No. 34886 in this issue, June 15, 2011, of the Bulletin.)

Summary of the rule or change:

Subsection R156-1-102(13) and Subsection R156-1-109(1) modify the designation of the alternate presiding officer for citation hearings and for issuing investigative subpoenas, to be consistent with and provide future flexibility in the Division's "Revised Consolidation of Delegation of Authority Letters" document. Subsection R156-1-106(1) modifies this section to clarify that licensee lists provided as permitted by statute or rule may include a licensee's e-mail address. Subsections R156-1-109(3) and (4) designate the presiding officers for certain adjudicative proceedings that are being reclassified as informal proceedings in a separate companion rule filing. The purpose of these changes is to achieve greater efficiency. This filing also makes technical numbering changes to these subsections. Subsection R156-1-305(2) adds physical therapists and landscape architects to the list of license classifications allowed to place their license on inactive status. Section R156-1-308a removes and revises certain renewal dates to: a) implement the repeal of the Alternative Dispute Resolution Providers Certification Act by H.B. 243; b) address the renewal dates to implement the creation of a new Radiologist Assistant license classification and the revision of the classification of Radiology Technologist to Radiologic Technologist, as revised under H.B. 238; c) address the renewal dates to implement the creation of Type I and Type II Physician Foreign Teaching licenses as created by S.B. 129; and d) to address the revision of the Vocational Rehabilitation Counselor renewal dates from an annual March 31 renewal date to an every two years odd-year renewal date cycle as revised by H.B. 243. Section R156-1-308c clarifies the duty of a licensee to maintain a current mailing address with the Division, and provides that notice to such address constitutes legal notice to a licensee. This was codified into statute by H.B. 243. Subsections R156-1-308g(3) and (4) remove a reinstatement requirement that requires applicants who apply more than two years after the license expiration of their license, who have continued working in their occupation or profession on an expired license, a backward looking renewal fee requirement that is determined by multiplying the current renewal fee times the number of missed renewal periods the applicant worked before applying to reinstate their expired license. This requirement has proven difficult or unworkable to administer and has been administered inconsistently by Division staff. Further it is deemed unnecessary now that we just acquired fine and citation authority across the board for all occupations and professions for unlicensed practice. This filing also removes redundant or unnecessary reinstatement language. Section R156-1-502 establishes a fine schedule to implement the fine authority granted under H.B. 243. Finally, this filing renumbers and makes technical and clarifying changes throughout the filing.

State statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

The Division will incur reprinting costs of approximately $100. The fiscal impact of the repeal of the Alternative Dispute Resolution Providers Certification Act and the creation of a new Radiology Assistant and Type I and II Foreign Trained Physician-Educator license classifications were quantified in the fiscal notes for H.B. 243 and 238, and S.B. 129, respectively. This rule filing merely conforms our list of renewal dates to address the referenced legislation. Revenue to the General Fund will be generated from the new fine and citation authority granted by S.B. 243. However, the amount cannot be quantified. Revenue to the Commerce Service Fund will potentially be lost by not charging the backward looking reinstatement fee described above. However few if any Bureau Managers were imposing the fee such that it is not anticipated there will be any net lost revenue of significance.

local governments:

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

small businesses:

Alternative Dispute Resolution Providers: The number of small Alternative Dispute Resolution small businesses is unknown. Deregulation of the Alternative Dispute Resolution Providers profession will eliminate the mandatory costs associated with an individual qualifying for and maintaining a license. The costs to qualify for a license were between $900 and $1,200 for the 40-hour education requirement, an unidentified amount for the 32-hour experience requirement, and $85 for the initial license application fee. The cost to maintain a license is a $63 renewal fee. There are currently 49 licensees. This profession renewed on September 30th of even years. Due to the repeal of the licensing requirement, the $3,087 collected in renewal fees a little over six months ago will be refunded, as will the $170 of initial licensing fees for the two new license applicants during 2010. It should be noted however that individuals will likely continue to complete this education and experience, although no longer required, in order to be trained and employable or competitive in the profession. Physical Therapists: Physical Therapists pay a renewal fee of $47. If they place their license on inactive status they will pay an inactive license fee of $50 on the same two-year cycle. The reason for putting a license on inactive status when a licensee is not using the license currently but may use it in the future is to make the continuing education requirement inapplicable. Physical Therapists are required to obtain 40 hours of continuing education each two-year renewal cycle at an approximate cost of $1,200. Licensees are required to complete the current renewal year continuing education when they reinstate their license. Radiology Assistants: Radiology Assistants will be impacted by the new Radiology Assistant licensing requirement required under H.B. 238. Radiology Assistants must all first meet the requirements for and become licensed as a Radiologic Technologist. This is an approved two-year Associate's degree in radiologic technology. Upon completion of the degree applicants for licensure must take the examination and be certified as a Radiologic Technologist by the American Registry of Radiologic Technologist (ARRT). The initial examination and certification cost is $200. Thereafter, certificate holders must pay an annual certification fee of $20. Radiology Assistants must then complete any Bachelors of Science degree and take and an examination from and be certified by the ARRT as a Radiology Assistant. The initial examination and registration fee is $200. Thereafter certified Radiology Assistants must pay an annual certification fee of $20. Radiology Assistants are not required to maintain their former Radiologic Technologist certification. As an alternative to the ARRT Radiology Assistant certification, applicants may be certified by the Certification Board for Radiology Practitioner Assistants (CBRPA). The initial examination fee is $150 with a $100 annual certification fee thereafter. The cost of the education programs described above for Radiology Assistants varies from between approximately $13,750 and $24,750. Modification of Reinstatement Fees: Reinstatement applicants who have been working on an expired license will potentially experience a savings in application filing fees by not charging the backward looking reinstatement fee described in the Summary of Filing above. However few if any Bureau Managers have been imposing this fee, such that it is not anticipated there will be any net savings to applicants.

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

It is not anticipated that Alternative Dispute Resolution Provider education and certification programs will lose revenue in the amount of the potential cost savings described above, because individuals will likely attend their programs despite deregulation, in order to be trained and employable or competitive in the profession.

Compliance costs for affected persons:

Alternative Dispute Resolution Providers: Deregulation of the Alternative Dispute Resolution Providers profession will eliminate the mandatory costs associated with an individual qualifying for and maintaining a license. The costs to qualify for a license were between $900 and $1,200 for the 40-hour education requirement, an unidentified amount for the 32-hour experience requirement, and $85 for the initial license application fee. The cost to maintain a license is a $63 renewal fee. There are currently 49 licensees. This profession renewed on September 30th of even years. Due to the repeal of the licensing requirement, the $3,087 collected in renewal fees a little over six months ago will be refunded, as will the $170 of initial licensing fees for the two new license applicants during 2010. It should be noted however that individuals will likely continue to complete this education and experience, although no longer required, in order to be trained and employable or competitive in the profession. Physical Therapists: Physical Therapists pay a renewal fee of $47. If they place their license on inactive status, they will pay an inactive license fee of $50 on the same two-year cycle. The reason for putting a license on inactive status when a licensee is not using the license currently but may use it in the future is to make the continuing education requirement inapplicable. Physical Therapists are required to obtain 40 hours of continuing education each two-year renewal cycle at an approximate cost of $1,200. Licensees are required to complete the current renewal year continuing education when they reinstate their license. Radiology Assistants: Radiology Assistants will be impacted by the new Radiology Assistant licensing requirement required under H.B. 238. Radiology Assistants must all first meet the requirements for and become licensed as a Radiologic Technologist. This is an approved two-year Associate's degree in radiologic technology. Upon completion of the degree applicants for licensure must take the examination and be certified as a Radiologic Technologist by the American Registry of Radiologic Technologists (ARRT). The initial examination and certification cost is $200. Thereafter, certificate holders must pay an annual certification fee of $20. Radiology Assistants must then complete any Bachelor's of Science degree and take and an examination from and be certified by the ARRT as a Radiology Assistant. The initial examination and registration fee is $200. Thereafter certified Radiology Assistants must pay an annual certification fee of $20. Radiology Assistants are not required to maintain their former Radiologic Technologist certification. As an alternative to the ARRT Radiology Assistant certification, applicants may be certified by the Certification Board for Radiology Practitioner Assistants(CBRPA). The initial examination fee is $150 with a $100 annual certification fee thereafter. The cost of the education programs described above for Radiology Assistants varies from between approximately $13,750 and $24,750. Physician Educators: Persons who qualify for a Type I or Type II physician educator licenses will be required to pay an initial license application fee of $200 and a renewal fee every two years of $183. The costs to meet the requirements for a Type I or Type II physician educator license are varied and cannot be capably estimated. Modification of Reinstatement Fees: Reinstatement applicants who have been working on an expired license will potentially experience a savings in application filing fees by not charging the backward looking reinstatement fee described in the Summary of Filing above. However few if any Bureau Managers have been imposing this fee, such that it is not anticipated there will be any net savings to applicants. Fine and Citation Authority: The fine authority granted to the Division to enforce, across all of its regulated professions, unlicensed practice and hiring persons requiring a license who are not licensed, will cost those so engaged in unlawful practice and generate general fund revenue. The maximum fines are $1,000 for a first offense, $2,000 for a second offense, and up to $1,000 per day for ongoing offenses thereafter. The proposed rule establishes a fine schedule to make sure the Division is consistent in its enforcement. The fine schedule is set at $500 and $800, for a first offense of unlicensed practice and hiring someone who is required to be licensed who is unlicensed, respectively. A second offense is double this amount. A third offense is double the amount of the second offense per day of continued unlawful conduct. The Division cannot predict with any degree of certainty the number of citations that will be issued per month or year under this new authority.

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

This rule filing implements several statutory changes passed in the 2011 General Session for which the fiscal impact had already been addressed. The proposed amendments and possible costs to licensees are addressed in the rule summary. No further fiscal impact to 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 [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:

07/15/2011

This rule may become effective on:

07/22/2011

Authorized by:

Mark Steinagel, Director

R156. Commerce, Occupational and Professional Licensing.

R156-1. 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)(a) "Disciplinary action" means adverse licensure action by the Division under the authority of Subsections 58-1-401(2)(a) through (2)(b).

(b) "Disciplinary action", as used in Subsection 58-1-401(5), shall not be construed to mean an adverse licensure action taken in response to an application for licensure. Rather, as used in Subsection 58-1-401(5), it shall be construed to mean an adverse action initiated by the Division.

(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 Department administrative law judge, or if both the Division regulatory and compliance officer and a Department administrative law judge are unable to so serve for any reason, an alternate[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) 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;

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

(vii) 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) "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.

(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.

(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.

(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.

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

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

(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.

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

(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.

(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.

(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.

(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.

(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.

 

R156-1-106. 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, and e-mail addresses, subject to the restriction that the addresses and telephone numbers shall only be used by a requester for purposes for which the requester is properly authorized and shall not be sold or otherwise redisclosed by the requester:

(a) responses to requests from another governmental entity, government-managed corporation, a political subdivision, the federal government, another state, or a not-for-profit regulatory association to which the Division is a member;

(b) responses to requests from an occupational or professional association, private continuing education organizations, trade union, university, or school, for purposes of education programs for licensees;

(c) responses to a party to a prelitigation proceeding convened by the Division under Title 78, Chapter 14;

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

(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 Division may deny a request for an address or telephone number of a licensee to an individual who provides proper identification and the reason for the request, in writing, to the Division, if the reason for the request is deemed by the Division to constitute an unwarranted invasion of privacy or a threat to the public health, safety, and welfare.

(3) In accordance with Subsection 58-1-106(3)(c), proper identification of an individual who requests the address or telephone number of a licensee and the reason for the request, in writing, shall consist of the individual's name, mailing address, and daytime number, if available.

 

R156-1-109. Presiding Officers.

In accordance with Subsection 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 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, a [bureau manager designated]replacement specified by the 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)(e), and R156-46b-201(2)(a) through (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 (t), and R156-46b-202(2)(a), [and] (b) and (c)(ii), 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;

(ii) formal adjudicative proceedings described in Subsection R156-46b-201(1)(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), (q)(ii) and (iii), (r)(ii) and (iii), (s)(ii) and (iii), and R156-46b-202(2)(c)(iii).

(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-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)(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),(s) (i) and (t), and R156-46b-202(2)(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. The director is designated as the presiding officer 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),(o), (q)(i) and (r)(i).

(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.

 

R156-1-305. 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) architect;

(c) audiologist;

(d) certified nurse midwife;

(e) certified public accountant emeritus;

(f) certified registered nurse anesthetist;

(g) certified court reporter;

(h) certified social worker;

(i) chiropractic physician;

(j) clinical social worker;

(k) contractor;

(l) deception detection examiner;

(m) deception detection intern;

(n) dental hygienist;

(o) dentist;

(p) direct-entry midwife;

(q) genetic counselor;

(r) health facility administrator;

(s) hearing instrument specialist;

(t) landscape architect;

([t]u) licensed substance abuse counselor;

([u]v) marriage and family therapist;

([v]w) naturopath/naturopathic physician;

([w]x) optometrist;

([x]y) osteopathic physician and surgeon;

([y]z) pharmacist;

([z]aa) pharmacy technician;

(bb) physical therapist;

([aa]cc) physician assistant;

([bb]dd) physician and surgeon;

([cc]ee) podiatric physician;

([dd]ff) private probation provider;

([ee]gg) professional counselor;

([ff]hh) professional engineer;

([gg]ii) professional land surveyor;

([hh]jj) professional structural engineer;

([ii]kk) psychologist;

([jj]ll) radiology practical technician;

([kk]mm) radiolog[y]ic technologist;

([ll]nn) security personnel;

([mm]oo) speech-language pathologist; and

([nn]pp) veterinarian.

(3) Applicants for inactive licensure shall apply to the Division in writing upon forms available from the Division. Each completed application shall contain documentation of requirements for inactive licensure, shall be verified by the applicant, and shall be accompanied by the appropriate fee.

(4) If all requirements are met for inactive licensure, the Division shall place the license on inactive status.

(5) A license may remain on inactive status indefinitely except as otherwise provided in Title 58 or rules which implement Title 58.

(6) An inactive license may be activated by requesting activation in writing upon forms available from the Division. Unless otherwise provided in Title 58 or rules which implement Title 58, each reactivation application shall contain documentation that the applicant meets current renewal requirements, shall be verified by the applicant, and shall be accompanied by the appropriate fee.

(7) An inactive licensee whose license is activated during the last four months of a renewal cycle shall, upon payment of the appropriate fees, be licensed for a full renewal cycle plus the period of time remaining until the impending renewal date, rather than being required to immediately renew their activated license.

(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]3)  Architect                           May 31       even years

([5]4)  Athlete Agent                       September 30 even years

([6]5)  Athletic Trainer                    May 31       odd years

([7]6)  Audiologist                         May 31       odd years

([8]7)  Barber                              September 30 odd years

([9]8)  Barber School                       September 30 odd years

([10]9)  Building Inspector                  November 30  odd years

([11]10)  Burglar Alarm Security              November 30  even years

([12]11)  C.P.A. Firm                        September 30 even years

([13]12)  Certified Court Reporter           May 31       even years

([14]13)  Certified Dietitian                September 30 even years

([15]14)  Certified Medical Language Interpreter March 31 odd years

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

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

([18]17)  Certified Registered

      Nurse Anesthetist                  January 31   even years

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

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

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

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

([23]22)  Contractor                         November 30  odd years

([24]23)  Controlled Substance License       Attached to primary

                                           license renewal

([25]24)  Controlled Substance

            Precursor                    May 31       odd years

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

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

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

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

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

([31]30)  Dentist                            May 31       even years

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

([33]32)  Electrician

            Apprentice, Journeyman, Master,

            Residential Journeyman,

            Residential Master           November 30  even years

([34]33)  Electrologist                      September 30 odd years

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

([36]35)  Elevator Mechanic                  November 30  even years

([37]36)  Environmental Health Scientist     May 31       odd years

([38]37)  Esthetician                        September 30 odd years

([39]38)  Esthetics School                   September 30 odd years

([40]39)  Factory Built Housing Dealer       September 30 even years

([41]40)  Funeral Service Director           May 31       even years

([42]41)  Funeral Service                    May 31       even years

            Establishment

([43]42)  Genetic Counselor                  September 30 even years

([44]43)  Health Facility                    May 31       odd years

            Administrator

([45]44)  Hearing Instrument                 September 30 even years

            Specialist

([46]45)  Internet Facilitator               September 30 odd years

([47]46)  Landscape Architect                May 31       even years

([48]47)  Licensed Practical Nurse           January 31   even years

([49]48)  Licensed Substance Abuse           May 31       odd years

            Counselor

([50]49)  Marriage and Family                September 30 even years

            Therapist

([51]50)  Massage Apprentice,                May 31       odd years

            Therapist

([52]51)  Master Esthetician                 September 30 odd years

([53]52)  Medication Aide Certified          March 31     odd years

([54]53)  Nail Technologist                  September 30 odd years

([55]54)  Nail Technology School             September 30 odd years

([56]55)  Naturopath/Naturopathic            May 31       even years

            Physician

([57]56)  Occupational Therapist             May 31       odd years

([58]57)  Occupational Therapy               May 31       odd years

            Assistant

([59]58)  Optometrist                        September 30 even years

([60]59)  Osteopathic Physician and          May 31       even years

            Surgeon,

            Online Prescriber

([61]60)  Outfitter/Hunting Guide            May 31       even years

([62]61)  Pharmacy Class A-B-C-D-E,    September 30 odd years

            Online Contract Pharmacy

([63]62)  Pharmacist                         September 30 odd years

([64]63)  Pharmacy Technician                September 30 odd years

([65]64)  Physical Therapist                 May 31       odd years

([66]65)  Physical Therapist Assistant       May 31       odd years

([67]66)  Physician Assistant                May 31       even years

([68]67)  Physician and Surgeon,              January 31   even years

            Online Prescriber

([69]68)  Plumber

            Apprentice, Journeyman,

            Master, Residential Master,

            Residential Journeyman       November 30  even years

([70]69)  Podiatric Physician                September 30 even years

([71]70)  Pre Need Funeral Arrangement

            Sales Agent                  May 31       even years

([72]71)  Private Probation Provider         May 31       odd years

([73]72)  Professional Counselor             September 30 even years

([74]73)  Professional Engineer              March 31     odd years

([75]74)  Professional Geologist             March 31     odd years

([76]75)  Professional Land Surveyor         March 31     odd years

([77]76)  Professional Structural            March 31     odd years

            Engineer

([78]77)  Psychologist                       September 30 even years

([79]78)  Radiolog[y]ic Technologist,            May 31       odd years

          Radiology Practical Technician


          Radiologist Assistant

([80]79)  Recreational Therapy

            Technician, Specialist,

            Master Specialist            May 31       odd years

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

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

            Practitioner

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

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

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

([86]86)  Veterinarian                       September 30 even years


(87)  Vocational Rehabilitation Counselor  March 31    odd 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) Associate Marriage and Family Therapist 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) Associate Professional Counselor 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.

(c) Certified Social Worker Intern licenses shall be issued for a period of six months or until the examination is passed whichever occurs first.

(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.

([f]e) 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.

([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) [Vocational Rehabilitation Counselor licenses will be renewed annually on March 31.]Type I Foreign Trained Physician-Educator licenses will be issued initially for a one-year term and thereafter renewed every two years following issuance.

(h) Type II Foreign Trained Physician-Educator licenses will be issued initially for an annual basis and thereafter renewed annually up to four times following issuance if the licensee continues to satisfy the requirements described in Subsection 58-67-302.7(3) and completes the required continuing education requirements established under Section 58-67-303.

 

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

The procedures for renewal of licensure shall be as follows:

(1) The Division shall 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)] Except as provided in Subsection [(2)(b)](4), renewal notices shall be sent by mail deposited in the post office with postage prepaid, addressed to the last mailing address shown on the Division's automated license system.[ Such mailing shall constitute legal notice.]

(3) In accordance with Subsection 58-1-301.7(1), [It shall be the duty and responsibility of] each licensee is required to maintain a current mailing address with the Division. In accordance with Subsection 58-1-301.7(3), mailing to the last mailing address furnished to the Division constitutes legal notice.

([b]4) 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. If selected as the exclusive method of receipt of renewal notices, [S]such mailing shall constitute legal notice. It shall be the duty and responsibility of [a]each licensee who authorizes the Division to send a renewal notice by email to maintain a current email address with the Division.

([3]5) Renewal notices shall provide that the renewal requirements are outlined in the online renewal process and that each licensee is required to document or certify that the licensee meets the renewal requirements prior to renewal.

([4]6) 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]7) 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 30 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; and

(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

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

([d]c) 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]d) pay the established license renewal fee and the reinstatement fee.

 

R156-1-50[2]1. 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, 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.

 

R156-1-502. Administrative Penalties.

(1) In accordance with Subsection 58-1-401(5) and Section 58-1-502, except as otherwise provided by a specific chapter under Title R156, the following fine schedule shall apply to citations issued under the referenced authority:

 

TABLE
FINE SCHEDULE

  
FIRST OFFENSE

  

  Violation                Fine
  
58-1-501(1)(a)           $ 500.00
  
58-1-501(1)(c)           $ 800.00
  

  

SECOND OFFENSE

  

58-1-501(1)(a)           $1,000.00
  
58-1-501(1)(c)           $1,600.00
  

  

THIRD OFFENSE

  

  Double the amount for a second offense with a maximum amount
  
not to exceed the maximum fine allowed under Subsection
  
58-1-502(2)(j)(iii).

 

(2) Citations shall not be issued for third offenses, except in extraordinary circumstances approved by the investigative supervisor.

(3) If multiple offenses are cited on the same citation, the fine shall be determined by evaluating the most serious offense.

(4) An investigative supervisor may authorize a deviation from the fine schedule based upon the aggravating or mitigating circumstances.

(5) The presiding officer for a contested citation shall have the discretion, after a review of the aggravating and mitigating circumstances, to increase or decrease the fine amount imposed by an investigator based upon the evidence reviewed.

 

KEY: diversion programs, licensing, occupational licensing, supervision

Date of Enactment or Last Substantive Amendment: [February 24, ]2011

Notice of Continuation: March 1, 2007

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