Health, Family Health and Preparedness, Child Care Licensing

Rule R430-30

Adjudicative Procedure

Notice of Proposed Rule

(Repeal)

DAR File No.: 35654
Filed: 01/11/2012 02:13:13 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule on review at the request of the governor's initiative, was determined to be unnecessary given the department's general adjudicative rule, Rule R380-10.

Summary of the rule or change:

This rule is repealed in its entirety.

State statutory or constitutional authorization for this rule:

• Title 26, Chapter 39

Anticipated cost or savings to:

the state budget:

Because the content of this rule is covered in another existing rule, the costs that currently occur will continue. Therefore we do not anticipate any cost or savings associated with this repeal.

local governments:

Because the content of this rule is covered in another existing rule, the costs that currently occur will continue. Therefore we do not anticipate any cost or savings associated with this repeal.

small businesses:

Because the content of this rule is covered in another existing rule, the costs that currently occur will continue. Therefore we do not anticipate any cost or savings associated with this repeal.

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

Because the content of this rule is covered in another existing rule, the costs that currently occur will continue. Therefore we do not anticipate any cost or savings associated with this repeal.

Compliance costs for affected persons:

Because the content of this rule is covered in another existing rule, we do not anticipate any increased costs for compliance.

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

No fiscal impact on business predicted as a result of the repeal of this rule. The substantive provisions are present in Rule R380-10. No change in regulatory impact is therefore predicted.

David Patton PhD, Executive Director

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

Health
Family Health and Preparedness, Child Care Licensing
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Teresa Whiting at the above address, by phone at 801-538-6320, by FAX at 801-538-6325, or by Internet E-mail at twhiting@utah.gov

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:

03/02/2012

This rule may become effective on:

03/09/2012

Authorized by:

David Patton, Executive Director

R430. Health, Family Health and Preparedness, Child Care Licensing.

[R430-30. Adjudicative Procedure.

R430-30-1. Purpose.

This rule is adopted pursuant to Title 26, Chapter 39.

 

R430-30-2. Definitions.

(1) "Department" means the Utah Department of Health, Bureau of Licensing.

(2) "Initial agency determination" means a decision by department staff, without conducting adjudicative proceedings, of the legal rights, duties, privileges, immunities, or other legal interests of one or more identifiable persons, including all determinations to grant, deny, revoke, suspend, modify, annul, withdraw, or amend an authority, right, or license, all as limited by Subsection 63-46b-1(2).

(3) "Notice of agency action" means the formal notice meeting the requirements of Subsection 63-46b-(3)2 that the department issues to commence an adjudicative proceeding.

(4) "Request for agency action" means the formal written request meeting the requirements of Subsection 63-46b-3(3) that requests the department to commence an adjudicative proceeding.

 

R430-30-3. Commencement of Adjudicative Proceedings.

(1) All adjudicative proceedings under Title 26, Chapter 39, Utah Child Care Licensing Act, and under R430, Child Care Licensing Rules, are formal adjudicative proceedings.

(2) The Department may commence an adjudicative proceeding by filing and serving a notice of agency action in accordance with Subsection 63-46b-3(2) when the Department's actions are of a nature that require an adjudicative proceeding before the Department makes a decision.

(3) A person affected by an initial agency determination may commence an adjudicative proceeding and meet the requirements for a request for agency action under Subsection 63-46b-3(3) by completing the "Facility Licensure Request for Agency Action" form and filing the form with the Department.

 

R430-30-4. Responses.

(1) A respondent to a notice of agency action shall file and serve a written response within 30 calendar days of the postmarked mailing date or last publication date of the notice of agency action.

(2) A respondent who has filed a request for agency action, and has received notice from the presiding officer under Subsection 63-46b-3(3)(d)(iii) that further proceedings are required to determine the Department's response to the request, shall file and serve a written response within 30 calendar days of the postmarked mailing date or last publication date of the presiding officer's notice.

(3) The written response shall:

(a) include the information specified in Subsection 63-46b-6(1);

(b) be signed by the respondent or the respondent's representative; and

(c) be filed with the Department during the time period specified in Subsection R430-30-4(1) or R430-30-4(2).

(4) The respondent shall send one copy of the response by certified mail to each party.

(5) A person who has filed a request for agency action and has received notice from the presiding officer under Subsection 63-46b-3(3)(d)(ii) that the request is denied may request a hearing before the Department to challenge the denial. The person must complete and submit the Department hearing request form to the presiding officer within 30 calendar days of the postmarked mailing date of the presiding officer's notice.

(6) The presiding officer, upon motion of a party or upon the presiding officer's own motion, may allow any pleadings to be amended or corrected. Defects which do not affect substantial rights of the parties shall be disregarded.

 

R430-30-5. Discovery.

(1) Any party to a formal adjudicative proceeding may engage in discovery consistent with the provisions of this rule.

(2) The provisions of Rules 26, 27, 28, 29, 30, 32, 34, 36, and 37 of the Utah Rules of Civil Procedure, current January 1, 1995, are adopted and incorporated by reference.

(a) Where the incorporated Utah Rules of Civil Procedure refer to the court or to the clerk, the reference shall be to the presiding officer.

(b) Statutory restrictions on the release of information held by governmental entity shall be honored in controlling what is discoverable.

(c) All response times that are greater than 10 working days in the incorporated Utah Rules of Civil Procedure are amended to be 10 working days from the postmark of the mailing date of the request, unless otherwise ordered by the presiding officer.

(d) The parties shall ensure that all discovery is completed at least 10 calendar days before the day of the hearing. The parties may not make discovery requests to which the response time falls beyond 10 calendar days before the day of the hearing.

(e) Depositions may be recorded by audio recording equipment. However, any deposition to be introduced at the hearing must be first transcribed to a written document.

(f) Service of any discovery request or subpoena may be made upon any person upon whom a summons may be served in accordance with the Utah Rules of Civil Procedure. Service may be made by mail, by the party or by the party's agent.

(g) Subpoenas to compel the attendance of witnesses as provided in Rule 30(a) shall conform to Section R430-30-6.

 

R430-30-6. Witnesses and Subpoenas.

(1) Each party is responsible for the presence of that party's witnesses at the hearing.

(2) The presiding hearing officer may issue a subpoena to compel the attendance of a witness or the production of evidence, in accordance with the following:

(a) the officer may issue the subpoena upon a party's motion supported by affidavit showing sufficient need, or upon the officer's own motion;

(b) the party to whom the hearing officer has issued a subpoena shall cause the subpoena and a copy of the affidavit, if any, to be served.

(c) every subpoena shall be issued by the presiding officer under the seal of the Department, shall state the title of the action, and shall command every person to whom it is directed to attend and give testimony at time and place therein specified.

(d) a supporting affidavit for a subpoena duces tecum for the production by a witness of books, accounts, memoranda, correspondence, photographs, papers, documents, records, or other tangible thing shall include the following:

(i) the name and address of the entity upon whom the subpoena is to be served;

(ii) a description of what the party seeks to have the witness bring;

(iii) a showing of the materiality to the issue involved in the hearing;

(iv) a statement by the party that to the best of his knowledge the witness has such items in his possession or under his control.

 

R430-30-7. Certificate of Service.

There shall appear on all documents required to be served a certificate of service dated and signed by the party or his agent in substantially the following form:

I certify that I served the foregoing document upon all parties to this proceeding by delivering (or mailing postage prepaid and properly addressed, or causing to be delivered) a copy of it to (provide the name of the person).

 

R430-30-8. Stays and Temporary Remedy.

(1) During the pendency of judicial review, a party may petition for a stay of the order or other temporary remedy by filing a written petition with the presiding officer within seven calendar days of the day the order is issued.

(2) The presiding officer shall issue a written decision within ten working days of the filing date of the request. The presiding officer may grant a stay or other temporary remedy if such an action is in the best interest of the children.

(3) The request for a stay or temporary remedy shall be considered denied if the presiding officer does not issue a written decision within ten days of the filing of a written petition.

(4) The presiding officer may grant a stay or other temporary remedy on the presiding officer's own motion.

 

R430-30-9. Declaratory Orders.

Any person or agency may petition for a Department declaratory ruling on orders issued by the Department where there is statutory authority to issue orders by following the procedures outlined in Rule R380-5.

 

KEY: child care facilities

Date of Enactment or Last Substantive Amendment: January 21, 1998

Notice of Continuation: August 13, 2007

Authorizing, and Implemented or Interpreted Law: 26-39]