DAR File No. 39588
This rule was published in the September 1, 2015, issue (Vol. 2015, No. 17) of the Utah State Bulletin.
Education, Administration
Rule R277-203
Request for Licensure Reinstatement and Reinstatement Procedures
Notice of Proposed Rule
(Amendment)
DAR File No.: 39588
Filed: 08/13/2015 01:45:36 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
The amendments to this rule provide additional language regarding the reinstatement hearing report and a new section on reinstatement from revocation of license. Conforming and technical changes are also provided.
Summary of the rule or change:
Additional language regarding the reinstatement hearing report, the Utah State Board of Education's process for reviewing hearing reports, and a new section on reinstatement from revocation of license is provided. Conforming and technical changes are also provided.
State statutory or constitutional authorization for this rule:
- Section 53A-6-306
- Article X, Section 3
- Subsection 53A-1-401(3)
Anticipated cost or savings to:
the state budget:
Incorporating additional language regarding reinstatement procedures and providing conforming and technical changes will likely not result in a cost or savings to the state budget.
local governments:
Incorporating additional language regarding reinstatement procedures and providing conforming and technical changes will likely not result in a cost or savings to local government.
small businesses:
Incorporating additional language regarding reinstatement procedures and providing conforming and technical changes will likely not result in a cost or savings to small businesses.
persons other than small businesses, businesses, or local governmental entities:
Incorporating additional language regarding reinstatement procedures and providing conforming and technical changes will likely not result in a cost or savings to persons other than small businesses, businesses, or local government entities.
Compliance costs for affected persons:
Incorporating additional language regarding reinstatement procedures and providing conforming and technical changes will likely not result in any compliance costs for affected persons.
Comments by the department head on the fiscal impact the rule may have on businesses:
I have reviewed this rule and I believe that there is likely no fiscal impact on businesses.
Brad C. Smith, State Superintendent
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:
EducationAdministration
250 E 500 S
SALT LAKE CITY, UT 84111-3272
Direct questions regarding this rule to:
- Benjamin Rasmussen at the above address, by phone at 801-538-7835, by FAX at 801-538-7768, or by Internet E-mail at benjamin.rasmussen@schools.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:
10/01/2015
This rule may become effective on:
10/08/2015
Authorized by:
Benjamin Rasmussen, UPPAC Director and Special Counsel
RULE TEXT
R277. Education, Administration.
R277-203. Request for Licensure Reinstatement and Reinstatement Procedures.
R277-203-1. Authority and Purpose.
[A.](1) This rule is authorized [under]by:
(a) Utah Constitution Article X, Section 3
, which vests general control and supervision over public
education in the Board[,];
(b) [by ]Section 53A-6-306
, which directs the Board to adopt rules regarding UPPAC
duties and procedures[,]; and
(c) [by ]S
ubsection 53A-1-401(3)
, which allows the Board to adopt rules in accordance with
its responsibilities.
[B.](2) The purpose of this rule is to establish procedures
regarding educator license reinstatement.
[C.](3) The standards and procedures of the Utah Administrative
Procedures Act do not apply to this rule under the exemption of Subsection 63G-4-102(2)(d).
R277-203-2. Application for Licensing Following Denial or Loss of License.
[A](1)
(a) An individual who has been denied a license or lost the
individual's license through suspension, or through surrender
of a license or allowing a license to lapse in the face of an
allegation of misconduct, may request a review to consider
reinstatement of a license.
([2]b) A request for review described in
Subsection [R277-203-2A](1)
(a) shall:
([a]i) be in writing;
([b]ii) be transmitted to the UPPAC Executive Secretary; and
([c]iii) have the following information:
([i]A) name and address of the individual requesting review;
([ii]B) the action being requested;
([iii]C) specific evidence and documentation of compliance with
terms and conditions of any remedial or disciplinary requirements
or recommendations from UPPAC or the Board;
([iv]D) reason(s) that the individual seeks reinstatement;
and
([v]E) signature of the individual requesting review.
[B]([1]2)
(a) The Executive Secretary shall review the request with
UPPAC.
([2]b) If UPPAC determines that the request is incomplete or
invalid:
([a]i) the Executive Secretary shall deny the request; and
([b]ii) notify the individual requesting reinstatement of the
denial.
([3]c) If UPPAC determines that the request of an individual
described in
Subsection [R277-203-2A](1) is complete, timely, and appropriate, UPPAC shall
schedule and hold a hearing as provided under
Section R277-203-3.
[C]([1]3)(a) Burden of Persuasion: The burden of persuasion at a
reinstatement hearing shall fall on the individual seeking the
reinstatement.
([2]b) An individual requesting reinstatement of a suspended
license shall:
([a]i) show sufficient evidence of compliance with any
conditions imposed in the past disciplinary action;
([b]ii) provide sufficient evidence to the reinstatement hearing
panel that the educator will not engage in recurrences of the
actions that gave rise to the suspension and that reinstatement is
appropriate;
([c]iii) undergo a criminal background check [consistent with Utah law and R277-517]not more than six months prior to the requested hearing;
and
([d]iv) provide materials for review by the hearing panel that
demonstrate the individual's compliance with directives from
UPPAC or the Board found in petitioner's original stipulated
agreement or hearing report.
([3]c) An individual requesting licensing following a denial
shall show sufficient evidence of completion of a rehabilitation or
remediation program, if applicable, when requesting
reinstatement.
[D.](4) An individual whose license has been suspended or
revoked in another state shall seek reinstatement of the
individual's license in the other state before a request for a
reinstatement hearing may be approved.
R277-203-3. Reinstatement Hearing Procedures.
[A.](1) A hearing officer shall:
([1]a) preside over a reinstatement hearing; and
([2]b) rule on all procedural issues during the reinstatement
hearing as they arise.
[B.](2) A hearing panel, comprising individuals as set forth in
Subsection [R277-202-3(B)](2), shall:
([1]a) hear the evidence; and
([2]b) along with the prosecutor and hearing officer, question
the individual seeking reinstatement regarding the appropriateness
of reinstatement.
[C.](3) An individual seeking reinstatement may:
(a) be represented by counsel; and
(b) may present evidence and witnesses.
[D.](4) A party may present evidence and witnesses consistent
with
Rule R277-202.
[E.](5) A hearing officer of a reinstatement hearing shall
direct one or both parties to explain the background of a case to
panel members at the beginning of the hearing to provide necessary
information about the initial misconduct and subsequent UPPAC and
Board action.
[F.](6) An individual seeking reinstatement shall present
documentation or evidence that supports reinstatement.
[G.](7) The USOE, represented by the UPPAC prosecutor, shall
present any evidence or documentation that explains and supports
USOE's recommendation in the matter.
[H.](8) Other evidence or witnesses may be presented by either
party and shall be presented consistent with
Rule R277-202.
[I.](9) The individual seeking reinstatement shall:
([1]a) focus on the individual's actions, rehabilitative
efforts, and performance following license denial or
suspension;
([2]b) explain item by item how each condition of the hearing
report or stipulated agreement was satisfied;
([3]c) provide documentation in the form of evaluations,
reports, or plans, as directed by the hearing report or stipulated
agreement, of satisfaction of all required and outlined
conditions;
([4]d) be prepared to completely and candidly respond to the
questions of the UPPAC prosecutor and hearing panel regarding:
([a]i) the misconduct that caused the license suspension;
([b]ii) subsequent rehabilitation activities;
([c]iii) counseling or therapy received by the individual
related to the original misconduct; and
([d]iv) work, professional actions, and behavior between the
suspension and reinstatement request;
([5]e) present witnesses and be prepared to question witnesses
(including counselors, current employers, support group members) at
the hearing who can provide substantive corroboration of
rehabilitation or current professional fitness to be an
educator;
([6]f) provide copies of all reports and documents to the UPPAC
prosecutor and hearing officer at least five days before a
reinstatement hearing; and
([7]g) bring eight copies of all documents or materials that an
individual seeking reinstatement plans to introduce at the
hearing.
[J.](10) The UPPAC prosecutor, the hearing panel, and hearing
officer shall thoroughly question the individual seeking
reinstatement as to the individual's:
([1]a) underlying misconduct which is the basis of the sanction
on the educator's license;
([2]b) specific and exact compliance with reinstatement
requirements;
([3]c) counseling, if required for reinstatement;
([4]d) specific plans for avoiding previous misconduct; and
([5]e) demeanor and changed understanding of petitioner's
professional integrity and actions consistent with
Rule R277-515.
[K.](11) If the individual seeking reinstatement sought
counseling as described
in
Subsection [R277-203-3J(3)](10)(c), the individual shall state, under oath, that he
provided all relevant information and background to his counselor
or therapist.
[L.](12) A hearing officer shall rule on procedural issues in a
reinstatement hearing in a timely manner as they arise.
[M.](13) No more than 20 days following a reinstatement hearing,
a hearing officer, with the assistance of the hearing panel,
shall:
([1]a) prepare a hearing report in accordance with the
requirements set forth in
Section R277-203-5; and
([2]b) provide the hearing report to the UPPAC Executive
Secretary.
[N.](14) The Executive Secretary shall submit the hearing report
to UPPAC at the next meeting following receipt of the hearing
report by the Executive Secretary.
[O.](15) UPPAC may do the following upon receipt of the hearing
report:
([1]a) accept the hearing panel's recommendation as prepared
in the hearing report;
([2]b) amend the hearing panel's recommendation with
conditions or modifications to the hearing panel's
recommendation which shall be:
([a]i) directed by UPPAC;
([b]ii) prepared by the UPPAC Executive Secretary; and
([c]iii) attached to the hearing report; or
([3]c) reject the hearing panel's recommendation.
[P.](16) After UPPAC makes a recommendation on the hearing panel
report, the UPPAC recommendation will be forwarded to the Board for
final action on the individual's reinstatement request.
[Q. If the Board denies an individual's request for
reinstatement, the individual shall wait at least twenty four (24)
months prior to filing a request for reinstatement again, unless a
different time is provided in the hearing panel recommendation or
in the Board's motion to deny.
]
R277-203-4. Rights of a Victim at a Reinstatement Hearing.
[A.](1) If the allegations that gave rise to the underlying
suspension involve abuse of a sexual or physical nature, UPPAC
shall make reasonable efforts to notify the victim or the
victim's family of the reinstatement request.
[B.](2) UPPAC's notification shall:
([1]a) advise the victim
or the victim's family that a reinstatement hearing has
been scheduled;
([2]b) notify the victim
or the victim's family f the date, time, and location of
the hearing;
([3]c) advise the victim
or the victim's family of the victim's right to be
heard at the reinstatement hearing; and
([4]d) provide the victim
or the victim's family with a form upon which the victim
can submit a statement for consideration by the hearing panel.
[C.](3) A victim entitled to notification of the reinstatement
proceedings shall be permitted:
([1]a) to attend the hearing; and
([2]b) to offer the victim's position on the educator's
reinstatement request, either by testifying in person or by
submitting a written statement.
[D.](4) A victim choosing to testify at a reinstatement hearing
shall be subject to reasonable cross examination in the hearing
officer's discretion.
[E.](5) A victim choosing not to respond in writing or appear at
the reinstatement hearing waives the victim's right to
participate in the reinstatement process.
R277-203-5. Reinstatement Hearing Report.
[A.](1) A hearing officer shall provide the following in a
reinstatement hearing report:
([1]a) [provide ]a summary of the background of the
original disciplinary action;
([2]b) [provide ]adequate information, including summary
statements of evidence presented, documents provided, and
petitioner's testimony and demeanor for both UPPAC and the
Board to evaluate petitioner's progress and rehabilitation
since petitioner's original disciplinary action;
([3]c) [specifically address]the hearing panel's conclusions regarding
petitioner's appropriateness and fitness to be a public school
educator again;[and]
(d) the hearing panel's recommendation; and
([4]e) [provide ]a statement [that]indicating whether the hearing panel's recommendation to
UPPAC was unanimous or [provide]identifying how the panel['s] member's voted concerning reinstatement.
[B]([1]2)
(a) The hearing panel report is a public document under
GRAMA following the conclusion of the reinstatement process unless
specific information or evidence contained therein is protected by
a specific provision of GRAMA, or another provision of state or
federal law.
([2]b) The Executive Secretary shall add the hearing panel
report to the UPPAC case file.
[C.](3) If a license is reinstated, an educator's CACTUS
file shall be updated to:
([1]a) remove the flag;
([2]b) show that the educator's license was reinstated;
and
([3]c) show the date of formal Board action reinstating the
license.
[D.](4)(a) UPPAC and the Board shall follow the procedures described
in Subsection R277-202-12(7) when considering a reinstatement
hearing report.
(b) The Board decision as to whether to accept the recommendation of the reinstatement hearing report is within the Board's sole discretion.
(5) If the Board denies an individual's request for reinstatement, the individual shall wait at least twenty four (24) months prior to filing a request for reinstatement again, unless a different time is specified by UPPAC or the Board.
(6) If the Board reinstates an educator, the Executive Secretary shall:
(a) update CACTUS to reflect the Board's action; and
(b) report the Board's action to the NASDTEC Educator Information Clearing house.
(7) The Executive Secretary shall send notice of the Board's decision no more than 30 days following Board action to:
(a) the educator;
(b) the educator's LEA.
R277-203-6. Reinstatement from Revocation of License.
(1) The Executive Secretary shall deny any request for a reinstatement hearing for a revoked license unless the educator's stipulated agreement or revocation order from the Board allows the educator to request a reinstatement hearing.
(2) An educator may request that the Superintendent order a new hearing if:
(a) an educator provides:
(i) evidence of mistake or false information that was critical to the revocation action; or
(ii) newly discovered evidence:
(A) that undermines the revocation determination; and
(B) that the educator could not have reasonably obtained during the original disciplinary proceedings; or
(b) an educator identifies material procedural Board error in the revocation process.
(3) A request for review by the Superintendent must be filed within 30 days of Board action for circumstances identified in Subsection (2)(a)(i) or (b).
(4) A request for review by the Superintendent must be filed within 90 days of discovery of the new evidence for circumstances identified in Subsection(2)(a)(ii).
(5) The Superintendent:
(a) shall make a determination on a request made under Subsection(2) within 60 days; and
(b) may request briefing from an educator and USOE staff in making a determination.
(6) If the Superintendent finds that the criteria in Subsection (2)(a) have been established, the Superintendent shall direct UPPAC to conduct a new hearing consistent with Rule R277-202.
(7) If the Superintendents finds that the criteria in Subsection (2)(b) have been established, the Superintendent shall recommend to the Board that they reconsider their previous action.
KEY: licensure, reinstatements , hearings; license reinstatements
Date of Enactment or Last Substantive Amendment: [
July 8,
]2015
Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 53A-6-306; 53A-1-401(3)
Additional Information
More information about a Notice of Proposed Rule is available online.
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull-pdf/2015/b20150901.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
Text to be deleted is struck through and surrounded by brackets ([example]). Text to be added is underlined (example). Older browsers may not depict some or any of these attributes on the screen or when the document is printed.
For questions regarding the content or application of this rule, please contact Benjamin Rasmussen at the above address, by phone at 801-538-7835, by FAX at 801-538-7768, or by Internet E-mail at benjamin.rasmussen@schools.utah.gov. For questions about the rulemaking process, please contact the Division of Administrative Rules.