DAR File No. 41057
This rule was published in the January 1, 2017, issue (Vol. 2017, No. 1) of the Utah State Bulletin.
Human Services, Administration, Administrative Hearings
Notice of Proposed Rule
DAR File No.: 41057
Filed: 12/12/2016 10:48:52 AM
Purpose of the rule or reason for the change:
This amendment will clarify the Department of Human Services (DHS) procedures for informal adjudicative proceedings. Citations are also updated.
Summary of the rule or change:
This amendment establishes a default burden of proof for DHS where none is otherwise stated. It establishes the result of failing to request a hearing in a timely manner in certain cases, and it clarifies the public's right to be represented by an attorney or non-attorney in informal adjudicative proceedings.
Statutory or constitutional authorization for this rule:
- Section 63G-4-203
- Section 63G-4-202
Anticipated cost or savings to:
the state budget:
There is no anticipated cost or savings. DHS has sufficient staffing and resources to absorb any work that may be required due to amended changes. All changes reflect current practices, clarify the public's rights, and update citations.
Local government is not affected by this rule; therefore, there is no cost. The amendment does not change current practice.
There is no impact to small businesses, because the amendment does not change current practice. The rule clarifies the public's rights and updates citations.
persons other than small businesses, businesses, or local governmental entities:
The rule reflects current practice and will have no impact on persons other than small businesses, businesses, or local government entities. The rule clarifies the public's rights and updates citations.
Compliance costs for affected persons:
The rule reflects current practice and will have no financial impact on affected persons. The rule clarifies the public's rights and updates citations.
Comments by the department head on the fiscal impact the rule may have on businesses:
It is not anticipated that this rule change will have a fiscal impact on business.
Ann Williamson, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:Human Services
Administration, Administrative Hearings
195 N 1950 W
SALT LAKE CITY, UT 84116
Direct questions regarding this rule to:
- Julene Robbins at the above address, by phone at 801-538-4521, by FAX at 801-538-3942, or by Internet E-mail at firstname.lastname@example.org
- Sonia Sweeney at the above address, by phone at 801-538-8241, by FAX at 801-538-4604, or by Internet E-mail at email@example.com
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:
This rule may become effective on:
Ann Williamson, Executive Director
R497. Human Services, Administration, Administrative Hearings.
R497-100. Adjudicative Proceedings.
The Department of Human Services, Office of Administrative Hearings is given rulemaking authority pursuant to Utah Code Ann. Section 62A-1-111.
The terms used in this rule are defined in Section 63G-4-103. In addition,
(1) For the purpose of this
section], "agency" means the Department
of Human Services or a division or office of the Department of
Human Services including the Division of Child and Family Services
(DCFS), the Division of Services to People with Disabilities
(DSPD), the Division of Juvenile Justice Services (DJJS), the
Division of Aging and Adult Services (DAAS), [ the Division of Mental Health (DMH), the Division of
Substance Abuse (SA)], the Office of
Licensing (OL), the Utah State Developmental Center (USDC), the
Utah State Hospital (USH), and any boards, commissions, officers,
councils, committees, bureaus, or other administrative units,
including the Executive Director and Director of
[ the Department or other persons acting on behalf of or
under the authority of the Executive Director or
Director]. For purposes of this
[ section], the term "
[ Department of Human Services]" does not
include the Office of Recovery Services (ORS).[ The rules regarding ORS are stated in
(2) "Agency actions or proceedings" of the Department of Human Services include, but are not limited to the following:
(a) challenges to findings of abuse, neglect and dependency pursuant to Section 62A-4a-1009;
(b) due process hearings afforded to foster parents prior to removal of a foster child from their home pursuant to Section 62A-4a-206;
(c) the denial, revocation, modification, or suspension of
any Department foster home license, or group care
d]) the denial, revocation, modification or suspension of a
license issued by the Office of Licensing pursuant to Section
62A-2-101, et seq.;
e]) challenges to findings of abuse, neglect or exploitation
[ disabled or elder] adult pursuant to Section
62A-3-301, et seq.;
(f) the licensure of community alternative programs by the
Office of Licensing;]
g]) actions by the Division of Juvenile Justice Services and
the Youth Parole Authority relating to granting or revocation of
parole, discipline or, resolution of grievances of, supervision of,
confinement of or treatment of residents of any Juvenile Justice
Services facility or institution;
h]) resolution of client grievances with respect to delivery
of services by private, nongovernmental, providers within the [ Department]'s service delivery system;
i]) actions by [ Department] owned and operated institutions and facilities
relating to discipline or treatment of residents confined to those
j]) placement and transfer decisions affecting involuntarily
committed residents of the Utah State Developmental Center pursuant
to Sections 62A-5-313;
k]) protective payee hearings;
[ Department] records amendment hearings held
pursuant to Section 63G-[ 3]-603.
(3) "Aggrieved person" includes any applicant, recipient or person aggrieved by an agency action.
(4) "Declaratory Order" is an administrative interpretation or explanation of the applicability of a statute, rule, or order within the primary jurisdiction of the agency to specified circumstances.
(5) "Office" means the Office of Administrative Hearings in the Department of Human Services.
(6) "Presiding officer" means an agency head, or individual designated by the agency head, by these rules, by agency rule, or by statute to conduct an adjudicative proceeding and may include the following:
(a) hearing officers;
(b) administrative law judges;
(c) division and office directors;
(d) the superintendent of agency institutions;
(e) statutorily created boards or committees.
The provisions of this [
section] do not govern the following:
(1) The procedures for promulgation of agency rules, or the judicial review of those procedures. See Section 63G-4-102(2)(a).
(2) Department actions relating to
contracts for the purchase or sale of goods or services by and for
the state or by and for the [
Department], including terminations of contracts by the
(3) Initial applications for and initial determinations of eligibility for state-funded programs.
R497-100-4. Form of Proceeding.
(1) All adjudicative proceedings commenced by the Department of Human Services or commenced by other persons affected by the Department of Human Services' actions shall be informal adjudicative proceedings.
(2) However, any time before a final order is issued in any adjudicative proceeding, the presiding officer may convert an informal adjudicative proceeding to a formal adjudicative proceeding if:
(a) conversion of the proceeding is in the public interest; and
(b) conversion of the proceeding does not unfairly prejudice the rights of any party.
(3) If a proceeding is converted from
informal to formal, the Procedure for Formal Adjudicative
Proceedings in Section 63G-4-
102][ , et seq.] shall apply. In all other cases, the
Procedures for Informal Proceedings in
R497-100-6 shall apply.
R497-100-5. Commencement of Proceedings.
(1) All adjudicative proceedings shall be commenced by either:
(a) a notice of agency action, if proceedings are commenced by the agency; or
(b) a request for agency action, if proceedings are commenced by persons other than the agency.
(a)] When adjudicative proceedings are commenced
by the agency, the notice of agency action shall conform to Section
63G-4-201(2)[ (a)] and shall also include
i]) [ a statement that ]the adjudicative proceeding is
to be conducted informally;
(ii) if a hearing is to be held in an informal adjudicative
proceeding, a statement of the time and place of any scheduled
hearing, a statement of the purpose for which the hearing is to be
held, and a statement that a party who fails to attend or
participate in the hearing may be held in default; and (iii) if the agency's rules do not provide for a
hearing, a statement that the parties may request a hearing
within ten working days of the notice of agency action. (b) The notice of agency action shall be mailed or
published in conformance with Section
c]) When adjudicative proceedings are commenced by a person
other than the agency, the request for agency action shall conform
to Section 63G-4-201(3)(a) and (b) and include the name of the
adjudicative proceeding, if known.
d]) In the case of adjudicative proceedings commenced under
Subsection ([ 2])[ (c) by a person other than the agency], the
presiding officer shall within ten [ working] days give notice by mail to all parties. The
written notice shall:
i]) give the agency's file number or other reference
ii]) give the name of the proceeding;
iii]) designate that the proceeding is to be conducted
iv]) if a hearing is to be held in an informal adjudicative
proceeding, state the time and place of any scheduled hearing, the
purpose for which the hearing is to be held, and that a party who
fails to attend or participate in the hearing may be held in
v]) if the agency's rules do not provide for a hearing,
state the parties' right to request a hearing within ten
working days of the agency's response; and
vi]) give the name, title, mailing address, and telephone
number of the presiding officer.
R497-100-6. Availability of Hearing.
1]) Hearings may be held in any informal adjudicative
proceedings conducted in connection with an agency action if the
aggrieved party requests a hearing and if there is a disputed issue
of fact. If there is no disputed issue of fact, the presiding
officer may deny a request for a hearing and determine all issues
in the adjudicative proceeding, if
[ done in compliance] with the policies and
standards of the applicable agency. If the aggrieved person objects
to the denial of a hearing, that person may raise that objection as
grounds for relief in a request for reconsideration.
2]) There is no issue of fact if:
(a) the aggrieved person tenders facts which on their face establish the right of the agency to take the action or obtain the relief sought in the proceeding;
(b) the aggrieved person tenders facts upon the request of the presiding officer and the fact does not conflict with the facts relied upon by the agency in taking its action or seeking its relief.
R497-100-7. Procedures for Informal Proceedings.
In compliance with Section 63G-4-203, the procedure for the informal adjudicative proceedings is as follows:
(1) (a) The respondent to a notice of
agency action or request for agency action may, but is not required
to, file an answer or responsive pleading to the allegations
contained in the notice of agency action or the request for agency
action within 10 [
working] days following receipt of the
[ adverse party's pleading].
b]) A hearing shall be provided to any party entitled to
request a hearing in accordance with Section 63G-4-203.
c]) In the hearing, the party named in the notice of agency
action or in the request for agency action [ may be represented by counsel and ]shall be
permitted to testify, present evidence and comment on the
d]) Hearings will be held only after a timely notice has been
mailed to all parties.
e]) Discovery is prohibited, but the office may issue
subpoenas or other orders to compel production of necessary
evidence. The office may require that parties exchange documents
prior to the hearing in order to expedite the process. All parties
to the proceedings will be responsible for the appearance of
f]) All parties shall have access to information contained in
the agency's files and to all materials and information
gathered in any investigation, to the extent permitted by law.
g]) Intervention is prohibited, except that intervention is
allowed where a federal statute or rule requires that a state
h]) Within a reasonable time after the close of the hearing,
or after the party's failure to request a hearing within the
time prescribed by the agency's rules, the presiding officer
shall issue a signed order in writing that conforms to Section
i]) All hearings shall be open to all parties.
j]) The presiding officer's order shall be based on the
facts appearing in the agency's files and on the facts
presented in evidence at the hearings.
k]) A copy of the presiding officer's order shall be
promptly mailed to each of the parties.
(2) All hearings shall be recorded at the
office's expense. A transcript of the record may be prepared
pursuant to Section 63G-4-203(2)(b).[
The recording will be maintained for one year after the
order has been issued.]
8]. Declaratory Orders.
(1) Who May File. Any person or governmental entity directly affected by a statute, rule or order administered, promulgated or issued by an agency, may file a petition for a declaratory order by addressing and delivering the written petition to the presiding officer of the appropriate agency.
(2) Content of Petition.
(a) The petition shall be clearly designated as a request for an agency declaratory order and shall include the following information;
(i) the statute, rule or order to be reviewed;
(ii) a detailed description of the situation or circumstances at issue;
(iii) a description of the reason or need for a declaratory order, including a statement as to why the petition should not be considered frivolous;
(iv) an address and telephone where the petitioner can be contacted during regular work days;
(v) a statement about whether the petitioner has participated in a completed or on-going adjudicative proceeding concerning the same issue within the past 12 months; and
(vi) the signature of the petitioner or an authorized representative.
(3) Exemptions from Declaratory Order
Procedure. A declaratory order shall not be issued by
any agency of the Department] under the following
(a) the subject matter of the petition is not within the jurisdiction and competency of the agency;
(b) the person requesting the declaratory ruling participated in an adjudicative proceeding concerning the same issue within 12 months of the date of the declaratory order request;
(c) the declaratory order procedure is likely to substantially prejudice the rights of a person who would be a necessary party, unless that person consents in writing to a determination of the matter by a declaratory proceeding;
(d) the declaratory order is trivial, irrelevant, or immaterial;
(e) a declaratory order proceeding is otherwise prohibited by state or federal law;
(f) a declaratory order is not in the best interest of the agency or the public;
(g) the subject matter is not ripe for consideration; or
(h) the issue is currently pending in a judicial proceeding.
(4) Intervention in Accordance with Sections 63G-4-203(1)(g) and 63G-4-503.
(a) Intervention is prohibited in informal adjudicative proceedings, except where a federal statute or rule requires that intervention be permitted.
(b) In the case of an adjudicative proceeding that has been converted to a formal adjudicative proceeding, a person may intervene in a declaratory order proceeding by filing a petition to intervene with the presiding officer of the agency within 30 days after the conversion of the proceeding.
(c) The agency presiding officer may grant a petition to intervene if the petition meets the following requirements:
(i) the intervener's legal interests may be substantially affected by the declaratory order proceedings; and
(ii) the interests of justice and the orderly and prompt conduct of the declaratory order proceeding will not be materially impaired by allowing intervention.
(5) Review of Petition for Declaratory Order.
(a) After review and consideration of a petition for a declaratory order, the presiding officer of the agency may issue a written order that conforms to Section 63G-4-503(6)(a);
(b) If the matter is set for an adjudicative proceeding, written notice shall be mailed to all parties that shall:
(i) give the name, title, mailing address, and telephone number of the presiding officer;
(ii) give the agency's file number or other reference number;
(iii) give the name of the proceeding;
(iv) state whether the proceeding shall be conducted informally or formally;
(v) state the time and place of any scheduled hearing, the purpose for which the hearing is to be held, and that a party who fails to attend or participate in the hearing may be held in default; and
(vi) if the agency's rules do not provide for a hearing, state the parties' right to request a hearing within 10 working days of the agency's response.
(c) If the agency's presiding officer issues a declaratory order, it shall conform to Section 63G-4-503(6)(b) and shall also contain:
(i) a notice of any right of administrative or judicial review available to the parties; and
(ii) the time limits for filing an appeal or requesting review.
(d) A copy of all declaratory orders shall be mailed in accordance with Section 63G-4-503(6)(c).
(e) If the agency's presiding officer has not issued a declaratory order within 60 days after receipt of the petition, the petition is deemed denied.
9]. Agency Review.
Agency review shall not be allowed.[
Nothing contained in this rule prohibits a party from
filing a petition for reconsideration pursuant to Section
63G-4-302. If the 20th day for filing a request for reconsideration
falls on a weekend or holiday the deadline will be extended until
the next working day.]
10]. Scope and Applicability.
The provisions of this section supersede the provisions of any other Department rules which may conflict with the foregoing rules.
KEY: administrative procedures, social services
Date of Enactment or Last Substantive Amendment: [
January 21, 2009]
Notice of Continuation: July 20, 2015
Authorizing, and Implemented or Interpreted Law: 62A-1-110; 62A-1-111
More information about a Notice of Proposed Rule is available online.
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For questions regarding the content or application of this rule, please contact Julene Robbins at the above address, by phone at 801-538-4521, by FAX at 801-538-3942, or by Internet E-mail at firstname.lastname@example.org; Sonia Sweeney at the above address, by phone at 801-538-8241, by FAX at 801-538-4604, or by Internet E-mail at email@example.com. For questions about the rulemaking process, please contact the Office of Administrative Rules.