DAR File No. 40328
This rule was published in the May 1, 2016, issue (Vol. 2016, No. 9) of the Utah State Bulletin.
Education, Administration
Rule R277-203
Request for Licensure Reinstatement and Reinstatement Procedures
Notice of Proposed Rule
(Repeal)
DAR File No.: 40328
Filed: 04/15/2016 06:05:48 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
Rule R277-203 is repealed based upon a court ruling which concluded that the Utah State Board of Education had not followed proper rulemaking procedures in its adoption. New Rule R277-213, following appropriate rulemaking procedure, is being filed simultaneously with the repeal of this rule. (DAR NOTE: The proposed new Rule R277-213 is under DAR No. 40337 in this issue, May 1, 2016, of the Bulletin.)
Summary of the rule or change:
Rule R277-203 is repealed in its entirety.
State statutory or constitutional authorization for this rule:
- Section 53A-1-401
- Art X, Sec 3
- Section 53A-6-306
Anticipated cost or savings to:
the state budget:
Rule R277-203 is repealed in its entirety, and the new Rule R277-213 is filed to take its place, which likely will not result in a cost or savings to the state budget.
local governments:
Rule R277-203 is repealed in its entirety, and the new Rule R277-213 is filed to take its place, which likely will not result in a cost or savings to local government.
small businesses:
Rule R277-203 is repealed in its entirety, and the new Rule R277-213 is filed to take its place, which likely will not result in a cost or savings to small businesses.
persons other than small businesses, businesses, or local governmental entities:
Rule R277-203 is repealed in its entirety, and the new Rule R277-213 is filed to take its place, which likely will not result in a cost or savings to persons other than small businesses, businesses, or local government entities.
Compliance costs for affected persons:
Rule R277-203 is repealed in its entirety, and the new Rule R277-213 is filed to take its place, which likely will not result in any compliance costs for affected persons.
Comments by the department head on the fiscal impact the rule may have on businesses:
To the best of my knowledge, there should be no fiscal impact on businesses resulting from repeal of this rule.
Sydnee Dickson, Interim 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:
- Angela Stallings at the above address, by phone at 801-538-7656, by FAX at 801-538-7768, or by Internet E-mail at angie.stallings@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:
05/31/2016
Interested persons may attend a public hearing regarding this rule:
- 05/12/2016 02:00 PM, Utah State Office of Education, 250 E 500 S, Salt Lake City, UT
This rule may become effective on:
06/07/2016
Authorized by:
Angela Stallings, Associate Superintendent, Policy and Communication
RULE TEXT
R277. Education, Administration.
[R277-203. Request for Licensure Reinstatement and
Reinstatement Procedures.
R277-203-1. Authority and Purpose.
(1) This rule is authorized by:
(a) Utah Constitution Article X, Section 3, which vests
general control and supervision over public education in the
Board;
(b) Section 53A-6-306, which directs the Board to adopt
rules regarding UPPAC duties and procedures; and
(c) Subsection 53A-1-401(3), which allows the Board to
adopt rules in accordance with its responsibilities.
(2) The purpose of this rule is to establish procedures
regarding educator license reinstatement.
(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.
(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.
(b) A request for review described in Subsection (1)(a)
shall:
(i) be in writing;
(ii) be transmitted to the UPPAC Executive Secretary;
and
(iii) have the following information:
(A) name and address of the individual requesting
review;
(B) the action being requested;
(C) specific evidence and documentation of compliance
with terms and conditions of any remedial or disciplinary
requirements or recommendations from UPPAC or the Board;
(D) reason(s) that the individual seeks reinstatement;
and
(E) signature of the individual requesting
review.
(2)(a) The Executive Secretary shall review the request
with UPPAC.
(b) If UPPAC determines that the request is incomplete or
invalid:
(i) the Executive Secretary shall deny the request;
and
(ii) notify the individual requesting reinstatement of
the denial.
(c) If UPPAC determines that the request of an individual
described in Subsection (1) is complete, timely, and appropriate,
UPPAC shall schedule and hold a hearing as provided under Section
R277-203-3.
(3)(a) Burden of Persuasion: The burden of persuasion at
a reinstatement hearing shall fall on the individual seeking the
reinstatement.
(b) An individual requesting reinstatement of a suspended
license shall:
(i) show sufficient evidence of compliance with any
conditions imposed in the past disciplinary action;
(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;
(iii) undergo a criminal background check not more than
six months prior to the requested hearing; and
(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.
(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.
(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.
(1) A hearing officer shall:
(a) preside over a reinstatement hearing; and
(b) rule on all procedural issues during the
reinstatement hearing as they arise.
(2) A hearing panel, comprising individuals as set forth
in Subsection (2), shall:
(a) hear the evidence; and
(b) along with the prosecutor and hearing officer,
question the individual seeking reinstatement regarding the
appropriateness of reinstatement.
(3) An individual seeking reinstatement may:
(a) be represented by counsel; and
(b) may present evidence and witnesses.
(4) A party may present evidence and witnesses consistent
with Rule R277-202.
(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.
(6) An individual seeking reinstatement shall present
documentation or evidence that supports reinstatement.
(7) The USOE, represented by the UPPAC prosecutor, shall
present any evidence or documentation that explains and supports
USOE's recommendation in the matter.
(8) Other evidence or witnesses may be presented by
either party and shall be presented consistent with Rule
R277-202.
(9) The individual seeking reinstatement shall:
(a) focus on the individual's actions, rehabilitative
efforts, and performance following license denial or
suspension;
(b) explain item by item how each condition of the
hearing report or stipulated agreement was satisfied;
(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;
(d) be prepared to completely and candidly respond to the
questions of the UPPAC prosecutor and hearing panel
regarding:
(i) the misconduct that caused the license
suspension;
(ii) subsequent rehabilitation activities;
(iii) counseling or therapy received by the individual
related to the original misconduct; and
(iv) work, professional actions, and behavior between the
suspension and reinstatement request;
(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;
(f) provide copies of all reports and documents to the
UPPAC prosecutor and hearing officer at least five days before a
reinstatement hearing; and
(g) bring eight copies of all documents or materials that
an individual seeking reinstatement plans to introduce at the
hearing.
(10) The UPPAC prosecutor, the hearing panel, and hearing
officer shall thoroughly question the individual seeking
reinstatement as to the individual's:
(a) underlying misconduct which is the basis of the
sanction on the educator's license;
(b) specific and exact compliance with reinstatement
requirements;
(c) counseling, if required for reinstatement;
(d) specific plans for avoiding previous misconduct;
and
(e) demeanor and changed understanding of
petitioner's professional integrity and actions consistent
with Rule R277-515.
(11) If the individual seeking reinstatement sought
counseling as described in Subsection(10)(c), the individual
shall state, under oath, that he provided all relevant
information and background to his counselor or
therapist.
(12) A hearing officer shall rule on procedural issues in
a reinstatement hearing in a timely manner as they
arise.
(13) No more than 20 days following a reinstatement
hearing, a hearing officer, with the assistance of the hearing
panel, shall:
(a) prepare a hearing report in accordance with the
requirements set forth in Section R277-203-5; and
(b) provide the hearing report to the UPPAC Executive
Secretary.
(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.
(15) UPPAC may do the following upon receipt of the
hearing report:
(a) accept the hearing panel's recommendation as
prepared in the hearing report;
(b) amend the hearing panel's recommendation with
conditions or modifications to the hearing panel's
recommendation which shall be:
(i) directed by UPPAC;
(ii) prepared by the UPPAC Executive Secretary;
and
(iii) attached to the hearing report; or
(c) reject the hearing panel's
recommendation.
(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.
R277-203-4. Rights of a Victim at a Reinstatement
Hearing.
(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.
(2) UPPAC's notification shall:
(a) advise the victim or the victim's family that a
reinstatement hearing has been scheduled;
(b) notify the victim or the victim's family of the
date, time, and location of the hearing;
(c) advise the victim or the victim's family of the
victim's right to be heard at the reinstatement hearing;
and
(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.
(3) A victim entitled to notification of the
reinstatement proceedings shall be permitted:
(a) to attend the hearing; and
(b) to offer the victim's position on the
educator's reinstatement request, either by testifying in
person or by submitting a written statement.
(4) A victim choosing to testify at a reinstatement
hearing shall be subject to reasonable cross examination in the
hearing officer's discretion.
(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.
(1) A hearing officer shall provide the following in a
reinstatement hearing report:
(a) a summary of the background of the original
disciplinary action;
(b) 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;
(c) the hearing panel's conclusions regarding
petitioner's appropriateness and fitness to be a public
school educator again;
(d) the hearing panel's recommendation; and
(e) a statement indicating whether the hearing
panel's recommendation to UPPAC was unanimous or identifying
how the panel member's voted concerning
reinstatement.
(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.
(b) The Executive Secretary shall add the hearing panel
report to the UPPAC case file.
(3) If a license is reinstated, an educator's CACTUS
file shall be updated to:
(a) remove the flag;
(b) show that the educator's license was reinstated;
and
(c) show the date of formal Board action reinstating the
license.
(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, reinstatement, hearings; license
reinstatements
Date of Enactment or Last Substantive Amendment: October 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/2016/b20160501.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.
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For questions regarding the content or application of this rule, please contact Angela Stallings at the above address, by phone at 801-538-7656, by FAX at 801-538-7768, or by Internet E-mail at angie.stallings@schools.utah.gov. For questions about the rulemaking process, please contact the Division of Administrative Rules.