DAR File No. 38563

Health, Center for Health Data, Health Care Statistics

Rule R428-5

Appeal and Adjudicative Proceedings

Notice of Proposed Rule

(Amendment)

DAR File No.: 38563
Filed: 06/02/2014 09:46:02 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This amendment is in response to a review of Title R428 that identified inconsistencies in the writing of the rule.

Summary of the rule or change:

The changes make technical and conforming amendments--renumbering where necessary.

State statutory or constitutional authorization for this rule:

• Title 26, Chapter 33a

Anticipated cost or savings to:

the state budget:

This amendment makes technical changes that improve consistency and clarity of Rule R428-5. The Utah Department of Health (UDOH) determines that these changes will not create any cost or savings impact to the state budget or UDOH's budget, since the changes will not increase workload and can be carried out with existing budget.

local governments:

This filing does not create any direct cost or savings impact to local governments since they are not directly affected by the rule; nor are local governments indirectly impacted because the rule does not create a situation requiring services from local governments.

small businesses:

None--Small businesses are not impacted by this rule change, with all potentially impacted having more than 50 employees. As a result, the rule will have no effect on small business budgets for costs or savings.

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

Minor technical changes in Rule R428-5 will not create any cost or savings to businesses, individuals, local governments or persons that are not small businesses.

Compliance costs for affected persons:

There are no compliance costs for persons affected by these changes to Rule R428-5. Although there are several modifications within this amendment, they will not impact affected persons.

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

No effect on business because it makes no changes in current operations.

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
Center for Health Data, Health Care Statistics
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Mike Martin at the above address, by phone at 801-538-9205, by FAX at 801-538-9916, or by Internet E-mail at mikemartin@utah.gov
• Rex Olsen at the above address, by phone at 801-538-9498, by FAX at 801-536-0940, or by Internet E-mail at rolsen@utah.gov
• Norman Thurston at the above address, by phone at 801-538-7052, by FAX at 801-237-0787, or by Internet E-mail at nthurston@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:

07/15/2014

This rule may become effective on:

07/22/2014

Authorized by:

David Patton, Executive Director

R428. Health, Center for Health Data, Health Care Statistics.

R428-5. Appeal and Adjudicative Proceedings.

R428-5-1. Legal Authority.

The Utah Health Data Committee is given rulemaking authority pursuant to Utah Code Annotated Title 26, Chapter 33a.

 

R428-5-2. Purpose.

The purpose of this rule is to establish procedures used by the Utah Health Data Committee for its adjudicative proceedings.

 

R428-5-3. Type of Proceeding.

[A.]The actions of the committee and requests for committee action are designated as formal adjudicative proceedings. The committee may at any time before a final order is issued in any adjudicative proceeding convert a formal adjudicative proceeding to an informal adjudicative proceeding, or an informal adjudicative proceeding to a formal adjudicative proceeding if[:

1.] conversion of the proceeding is in the public interest[;

2.] and conversion of the proceeding does not unfairly prejudice the rights of any party.

 

R428-5-4. Formal Proceedings.

[A.](1) The committee or its designated representative shall preside over a formal proceeding initiated by a notice of committee action or in response to a request for committee action.

[B.](2) The content of the notice of committee action shall comply with [Section]Subsection 63G-4-201(2). Formal hearings shall be held at the next regularly scheduled committee meeting unless prior arrangements are made for an alternate date and proper notice is provided all parties.

[C.](3) Within 30 calendar days of the mailing (electronic or paper) date of a notice of committee action, the respondent or his representative shall file with the [Bureau]Office and with each person known to have a direct interest a written, signed response that includes:

[1.](a) the agency's file number or other reference number;

[2.](b) the name of the adjudicative proceeding;

[3.](c) a statement of the relief or action sought;

[4.](d) a statement of the facts;

[5.](e) a statement summarizing the reasons for granting the relief requested.

[D.](4) A conference may be scheduled by the Director of the [Bureau]Office or the presiding officer to encourage settlement before the hearing.

[E.](5) The committee or its designated representative as presiding officer shall have the authority to issue subpoenas at their discretion.

[F.](6) Within a reasonable time after the hearing, or after the filing of any post-hearing papers permitted by the presiding officer, the presiding officer shall sign and issue an order that includes:

[1.](a) a statement of the presiding officer's findings of fact;

[2.](b) a statement of the presiding officer's conclusions of law;

[3.](c) a statement of the reasons for the presiding officer's decision;

[4.](d) a statement of any relief ordered by the agency;

[5.](e) a notice of the right to apply for committee reconsideration;

[6.](f) a notice of any right to administrative or judicial review available;

[7.](g) the time limits applicable to any reconsideration or review.

 

R428-5-5. Default and Reconsideration.

[A.(1) The presiding officer may enter an order of default against a party if:

[1.](a) a party in an informal adjudicative proceeding fails to participate in the adjudicative proceedings;

[2.](b) a party to a formal adjudicative proceeding fails to attend or participate in a properly scheduled hearing after receiving proper notice; or

[3.](c) a respondent in a formal adjudicative proceeding fails to file a response within the time frame specified in Subsection R428-5-4([C]3).

[4.](d) The order of default shall include a statement of the grounds for default and shall be mailed (electronic or paper) to all parties.

[5.](e) A defaulted party may seek to have the committee set aside the default order and any order in the adjudicative proceeding issued subsequent to the default order, by following the procedures outlined in the Utah Rules of Civil Procedure. A motion to set aside a default and any subsequent order shall be made to the presiding officer.

[6.](f) In an adjudicative proceeding begun by the agency, or in an adjudicative proceeding that has other parties besides the party in default, the presiding officer shall, after issuing the order of default, conduct any further proceedings necessary to complete the adjudicative proceeding without the participation of the party in default and shall determine all issues in the adjudicative proceeding, including those affecting the defaulting party.

[7.](g) In an adjudicative proceeding that has no parties other than the committee and the party in default, the presiding officer shall, after issuing the order of default, dismiss the proceeding.

[B.](2) Any party may file a written request for reconsideration with the committee stating the specific grounds upon which relief is requested. The request must be filed within 20 days after:

[1.](a) the date that an Order of Review is issued in an informal adjudicative proceeding; or

[2.](b) the date that a request for review is denied; or

[3.](c) the date that a final order is issued in a formal adjudicative proceeding.

[4.](d) The request for reconsideration shall be filed with the committee and one copy shall be sent by mail (electronic or paper) to each party by the person making the request.

[5.](e) The committee may issue a written order granting or denying the request within 30 working days of filing of the request.

[6.](f) If the committee does not issue an order granting or denying the request within 30 working days after the request is filed, the request for reconsideration shall be considered denied.

 

R428-5-6. Judicial Review.

An aggrieved party may obtain judicial review of final committee action upon exhaustion of all available administrative remedies. The aggrieved party shall file a petition for judicial review of final agency action within 30 calendar days after the final committee action is issued or is considered to have been issued under Section R428-5-5.

 

R428-5-7. Declaratory Orders.

[A.](1) Any person or agency may petition for a committee declaratory ruling of rights, status, or other legal relations under a specific statute or rule by submitting a written petition. The petition shall contain the following information:

[1.](a) the specific statute or rule to be reviewed;

[2.](b) the situation or circumstances in which applicability is to be reviewed;

[3.](c) the reason or need for the applicability review;

[4.](d) the name, address, and telephone number where the petitioner can be contacted;

[5.](e) the date of submission and signature of the petitioner.

[B.](2) The committee or its authorized representative shall review and consider the petition and may issue a declaratory ruling setting forth:

[1.](a) the applicability or non-applicability of the specific statute or rule;

[2.](b) the reasons for the applicability or non-applicability of the specific statute or rule;

[3.](c) any requirements imposed on the agency, petitioner, or any other person as a result of the ruling.

[C.](3) The committee may as appropriate:

[1.](a) interview the petitioner;

[2.](b) consult with counsel or the Attorney General;

[3.](c) take any action the committee in its judgment deems necessary to provide that the petition receives adequate review and due consideration.

[D.](4) If the committee has not issued a declaratory order within 60 days after receipt of the petition, the petition is denied.

[E.](5) The committee will not issue a declaratory order concerning any action which could result in the Department imposing sanctions.

 

R428-5-8. Informal Proceedings.

[A.](1) The committee may convert a formal proceeding to informal as specified under Section R428-5-3. The Chairman of the committee or his designated representative shall act as presiding officer in an informal proceeding. No response or other pleading is required subsequent to the receipt of a notice of agency decision unless specifically requested and a hearing is not required to be held.

[B.](2) The presiding officer may schedule a conference to encourage settlement before issuing a decision.

[C.](3) Before issuing a final order in an informal proceeding, the presiding officer may convert the proceeding to a formal proceeding if such action is deemed to be in the public interest and does not unfairly prejudice the rights of any party.

[D.](4) Unless a time frame is specified elsewhere in this chapter, the presiding officer shall, within a reasonable time of receipt of a request for agency action, issue a signed order in writing stating:

[1.](a) the decision;

[2.](b) the reasons for the decision;

[ 3.](c) notice of the right to any administrative or judicial review available;

[4.](d) the time limits for requesting review.

[E. 1.](5) Within 30 calendar days of the issuance of an order by the presiding officer, a party aggrieved by the decision may seek review of that order by filing a written request for review by the full committee. The request shall:

(a[.]) be signed by the party requesting review;

(b[.]) state the grounds for review and the relief requested;

(c[.]) be dated the date of mailing; and

(d[.]) be sent by mail (electronic or paper) to the presiding officer and to each party of the proceeding.

[2.](6) Within 15 calendar days of the mailing (electronic or paper) of the request for review, any party may file a response with the committee. A copy of the response must also be mailed (electronic or paper) to the presiding officer and each of the parties.

[3.](7) The committee may issue a notice granting or denying the request for review within 30 working days of filing of the request. If the committee does not issue a notice granting or denying the request within the 30 day period the request for review shall be considered denied.

[4.](8) If a review of the order is granted, the notice shall specify the date a hearing shall be conducted before the full committee.

[5.](9) Within a reasonable time from the completion of the hearing, the committee shall issue a written order on review which shall contain:

(a[.]) a designation of the statute or rule permitting or requiring review;

(b[.]) a statement of the issues reviewed;

(c[.]) findings of fact as to each of the issues reviewed;

(d[.]) conclusions of law as to each of the issues reviewed;

(e[.]) the reasons for the disposition;

(f[.]) whether the decision of the presiding officer or agency is to be affirmed, reversed, or modified, and whether all or any portion of the adjudicative proceeding is to be remanded;

(g[.]) a notice of any right of further administrative reconsideration or judicial review available; and

(h[.]) the time limit applicable to any review.

 

KEY: health, health policy, health planning

Date of Enactment or Last Substantive Amendment: [June 28, 2012]2014

Notice of Continuation: November 30, 2011

Authorizing, and Implemented or Interpreted Law: 26-33a-104